Case questions Otter’s veto on instant racing bill

BOISE – Which matters more: what the state constitution says or what the Idaho Senate does?

That’s the big question in legal arguments submitted to the Idaho Supreme Court in advance of an Aug. 11 hearing in the “instant racing” case, with implications for gambling in Idaho as well as the balance of power among the state’s executive, legislative and judicial branches.

An array of parties filing arguments in the case, led by Coeur d’Alene Racing, operator of the Greyhound Park and Event Center in Post Falls, say it’s up to the Senate to decide if a bill has been properly vetoed or not – and it would violate separation of powers for a court to tell the Senate it’s wrong.

“The Idaho State Senate, collectively and on the record, was best situated to judge the validity, timeliness and relevance of Gov. Otter’s veto,” wrote David Leroy, attorney for Greyhound Park and a former Idaho attorney general. “It did so.”

The Coeur d’Alene Tribe, which filed the lawsuit, strongly disagrees.

“The Tribe asks the Court for nothing more than for it to say what the law is, which is squarely the province of the judiciary,” wrote the tribe’s attorney, Deborah Ferguson.

When Gov. Butch Otter vetoed the bill to repeal authorization for slot machine-like “instant racing” machines in the state just two years after they’d first been authorized, he didn’t deliver his veto to the Senate until two days after the constitutionally required five-day deadline, waiting until April 6, the day after Easter Sunday.

Senators acknowledged in their official journal that the veto was delivered after the deadline, submitting three formal letters saying so, and noting both the constitutional provision and a state law that say in that case, the bill becomes law without the governor’s signature. But they took a veto override vote anyway, and it failed, achieving a 19-16 majority but not the required two-thirds. Seven senators who’d originally voted for the bill switched sides and backed the governor’s veto.

The Senate then treated the bill as if it had failed because the veto was not overridden.

The Coeur d’Alene Tribe, lead proponent of bill, sued, saying the override vote was meaningless – because according to the Idaho Constitution, the bill already had become law without the governor’s signature two days earlier, when the time limit for a veto expired. They argue that only bills, not laws, can be vetoed.

‘Very narrow question’

The separation of powers argument is not unprecedented, and it has played a significant role in some past Idaho court cases. In 2005, the Idaho Supreme Court ruled the state’s school funding system unconstitutional and ordered the Legislature to change it. But the court then refused to rule on whether lawmakers had done so adequately, saying lawmaking is the job of the Legislature.

Sen. Grant Burgoyne, D-Boise, an attorney, said he disagreed with that move by the court but considers this question a clearer one.

“The Senate of the state of Idaho cannot waive constitutional requirements, any more than the governor can, any more than the Idaho courts can, any more than anyone in the state can,” he said. “Constitutional requirements govern.”

Cathy Silak, dean of Concordia Law School in Boise and a former Idaho Supreme Court justice, said, “I think it’s a very narrow question – it may or may not implicate separation of powers.”

She noted a previous case, Cenarrusa v. Andrus in 1978, in which the court ruled that the clock starts ticking on the veto deadline when the bill is presented to the governor. “There is precedent for the Idaho Supreme Court to say what are the limitations on the exercise of the veto,” Silak said.

The tribe sued Secretary of State Lawerence Denney, who declined their request that he file the bill as a law and assign it a code section number, as the secretary is required to do for bills that become law. He told the court he didn’t believe he had the authority to do that unless someone directed him to do it – either the Senate or the court.

All sides say the official Senate Journal is the authority on what the Senate did. But Leroy argues that it was the override vote, not the letters, that mattered more, because the state constitution requires all votes to be reflected in the journal. “It is the letters, not the recorded vote, which are the ‘nullity’ here,” he wrote. Calling the letters, which were from the Senate’s president pro-tem, secretary, and minority leader, “de facto ‘minority’ reports,” Leroy argued, “Surely the Senate did not intend to nullify the subsequent official votes of all 35 sitting senators.”

Standing to sue

The governor and the instant racing operators also offer another argument: that the tribe has no standing to sue because it’s just like any other Idaho citizen and wasn’t directly injured by the failure of the bill.

The tribe, which operates its own casino on its reservation in Plummer and which was turned down by the state in 1998 in its bid to open one at the Greyhound Park, disagrees. It contends the expansion of gambling machines beyond tribal reservations directly undercuts its main funding source for tribal government functions.

Idaho’s anti-gambling laws are strict; they forbid most forms of gambling other than a state lottery, tribal gaming on Indian reservations, and pari-mutuel, or pooled, betting on horse races. The racing firms contend their machines are just a new form of pari-mutuel betting.

Burgoyne said the issue is bigger than instant racing.

“I think both the Legislature and the governor have an interest in having some bright-line rules drawn here for us by the Supreme Court on what the constitutional veto requirements are,” he said. “That’s in the interest of the governor, the Legislature and the people.”