AG's Review Finds Bill Designed To Prevent Government Shutdown Could Be Close Call Constitutionally

By Clark Corbin, Idaho Capital Sun

May 2, 2021

A review conducted by the office of Idaho Attorney General Lawrence Wasden found that a bill designed to prevent a partial state government shutdown could be found constitutional.

“If a court were to find H 376 unconstitutional, and the Idaho Legislature does not adjourn sine die by May 2, 2021, some 200 bills, including appropriations bills to fund parts of the state government, would not take effect on July 1, 2021,” Kane wrote in a legislative review issued Thursday that the Idaho Capital Sun obtained.

The July 1 date is important. That’s the first day of the state’s new fiscal year, and it’s also the date that new laws, including the state budget, take effect.

If the budget and spending authority are not in place, the state may not be able to make payroll beginning June 12, the Idaho Capital Sun reported Thursday.

That could lead to a partial shutdown of state government that could affect everything from Idaho State Police, to courts and corrections personnel, to the Idaho Department of Health and Welfare employees helping lead the state’s COVID-19 testing and vaccine rollout operations, Idaho Division of Financial Management Administrator Alex Adams said.

Altogether, there are more than 20,000 state employees across the state’s different agencies and departments, and all of them could potentially be affected if the budget is not in place for payroll.

The main issue is the length of the legislative session, which reached the 110th day Friday, bumping up against a clause of the Idaho Constitution.

The Idaho Constitution says bills will not take effect until 60 days after the session adjourns unless there is an emergency. The Legislature is guaranteed not to adjourn for the year more than 60 days before the new fiscal year begins because both chambers have adjourned until Monday.

Legislators know this is a problem and introduced House Bill 376 on April 21. That bill is designed to declare an emergency and make all bills that don’t have a specific emergency clause or effective date take effect on July 1, regardless of when the legislative session adjourns.

On Monday, a group called the Committee to Protect and Preserve the Idaho Constitution delivered a letter to Gov. Brad Little saying the bill may violate the Idaho Constitution, the Associated Press reported. The group worked with Jim Jones, former chief justice of the Idaho Supreme Court, the AP reported.

In his six-page review, Kane wrote that courts could fund the bill constitutional based on two different sections of the Idaho Constitution.

“… A reviewing court could find that H. 376 is constitutional (1) as it addresses the pragmatic concern of the Legislature’s inability to reenact and republish over 200 acts and the confusion that could result,” Kane wrote, in part.

That said, Kane wrote that it would be much less likely to be challenged based on confusion if House Bill 376 lists each of the 200 individual specific bills that would need to be amended to take effect July 1. As it is written today, House Bill 376 does not list each individual bill that needs to take effect July 1, so the bill would need to be amended if the Legislature follows Kane’s advice.

Later on, Kane warned that a court could find House Bill 376 violated the Idaho Constitution because all of the different acts that need amending under the legislation cover “disparate subject matter” and may violate the Idaho Constitution’s so-called one-subject clause.

“It could be a close question as to whether H. 376 runs afoul of Article III, Section 16,” Kane wrote.

However, Kane wrote it appears more likely a court would find there is a “unanimity of purpose” based on using the July 1 date.

In most years, the 60-day window before July 1 never comes up. Normal legislative sessions run from 75-85 days and adjourn in late March or early April, although there is no time limit designated by Idaho law.

Monday will be the 113th day of the 2021 session.

The longest session in state history ran for 118 days in 2003.

The Idaho Capital Sun, the Gem State’s newest nonprofit news organization, delivers accountability reporting on state government, politics and policy.