IDAHO STATE AFL-CIO v. Leroy

718 P.2d 1129, 110 Idaho 691, 1986 Ida. LEXIS 393, 121 L.R.R.M. (BNA) 2531

• Court: Idaho Supreme Court
• Decided: January 29, 1986
• Docket: 16074
• Status: Published

Opinions

DONALDSON, Chief Justice.

On January 31, 1985 the Idaho Legislature overrode the Governor’s veto and enacted H.B. 2, a “right to work” bill. The bill was designated as an “emergency bill” pursuant to art. 3, § 22 of the Idaho Constitution which allowed the legislature to thereby render it immediately effective.

That same day, the plaintiffs filed a complaint and motion in Sixth Judicial District Court, Bannock County, for a temporary restraining order and a preliminary injunction to enjoin (1) defendants David Leroy, in his capacity as President of the Idaho Senate, and Tom Stivers, in his capacity as Speaker of the Idaho House of Representatives, from authenticating the bill as law; (2) defendant Pete Cenárrusa, Idaho Secretary of State, from filing or certifying the bill as law; and (3) defendants Jim Jones, Idaho Attorney General, and Shawn Anderson, Bannock County Prosecuting Attorney, on behalf of all prosecuting attorneys of Idaho similarly situated, from taking any action to enforce the provisions of the bill.

Plaintiffs are labor organizations, officers and members of those organizations, and an employer of union labor. Defendants, as noted above, are legislative officers, the Secretary of State, the Attorney General, and the prosecuting attorneys of the state of Idaho.

The complaint charges that H.B. 2 would prevent plaintiffs from continuing to enjoy the protection of collective bargaining agreements or entering into new collective bargaining agreements, thereby abrogating valuable property rights and irreparably damaging plaintiffs; that H.B. 2 would abrogate federally guaranteed rights; that H.B. 2 violates the supremacy clause of the United States Constitution; that H.B. 2 violates the plaintiffs’ constitutional rights of assembly and freedom of speech; that H.B. 2 violates the equal protection clause of the United States Constitution; that H.B. 2 violates the United States Constitution and the Idaho Constitution in that it impairs the obligation of contract; that plaintiffs are deprived of property rights without due process of law in violation of the constitutions of the United States and the state of Idaho; and lastly, that the emergency clause contained in H.B. 2, which purports to make H.B. 2 effective upon its passage, impairs plaintiffs’ constitutional right under the referendum provision of art. 3 § 1 of the Idaho Constitution. Plaintiffs further allege that the declaration of emergency in H.B. 2 was ineffective, invalid and void since no such emergency actually existed.

We emphasize that the only portion of plaintiffs’ complaint which is presently before this Court is that relating to the validity of the emergency clause in H.B. 2 and the temporary restraining order and preliminary injunction issued by the district court based on the alleged invalidity of the emergency clause.

Upon filing of plaintiffs’ complaint, Judge George Hargraves of the Sixth Judicial District Court issued a temporary restraining order and set a hearing on the preliminary injunction for February 5, 1985. Judge Hargraves then referred the case to Judge Dell Smith in Bannock County for final determination.

The defendants then filed a petition for a writ of prohibition with this Court to prevent Judge Hargraves or Judge Smith from enforcing the temporary restraining order. On February 1, 1985, this Court issued an order and alternative writ staying the enforcement of the temporary restraining order against defendant Cenarru-sa. This Court did not, however, stay the hearing on the motion for preliminary injunction set for February 5.

Before the hearing, defendants moved for a change of venue to Ada County pursuant to I.C. § 5-402. On February 5, 1985, the hearing to show cause was held before Judge Smith on the preliminary injunction. The next day, defendants moved to strike the testimony and evidence presented at the hearing since plaintiffs failed to give sufficient notice to defendants of their intent to produce testimony and evidence at the hearing. Defendants also argued that their motion for a change of venue had to be determined before any other proceedings. Defendants then moved to stay all proceedings until the court ruled on their motion for change of venue.

Defendants’ motion for a stay was denied and further hearings were held on February 12. The next day, Judge Smith denied defendants’ motion to strike, but granted their motion for a change of venue to the Fourth Judicial District, Ada County. The judge also extended the temporary restraining order against defendants Jones, Anderson and all prosecuting attorneys in Idaho for fourteen additional days.

On February 14, 1985, plaintiffs moved in Fourth Judicial District Court for a preliminary injunction or extension of the temporary restraining order beyond the February 27th deadline. A hearing was held before Judge Robert Newhouse on February 27 at which time he extended the temporary restraining order until further order of the court.

On April 5, 1985, defendants answered plaintiffs’ complaint for injunctive and declaratory relief and, along with other defenses, challenged the jurisdiction of the court to review the legislature’s declaration of an emergency.

On May 14, 1985, Judge Newhouse issued his Memorandum Decision in which he interpreted art. 3, § 22 (the power of the legislature to declare an emergency in the preamble or body of an act) and art. 3, § 1 (the power of the people to demand a referendum on any act passed by the legislature) of the Idaho Constitution. Judge Newhouse concluded that the legislature’s declaration of emergency would defeat the voters’ right to a referendum. Therefore, he granted the preliminary injunction until such time as a trial could decide whether the legislature acted improperly by enacting the emergency provision.

On May 23, 1985, the defendants filed a petition for a writ of prohibition with this Court against Judge Newhouse. This Court denied the petition but granted permission to the defendants to file an appeal of Judge Newhouse’s decision pursuant to I.A.R. 12. This Court further ordered that Judge Newhouse’s preliminary injunction would continue in full force and effect until further order of this Court.

On July 1, 1985, defendants filed their Notice of Appeal seeking a determination whether the legislature’s declaration of emergency in an act is immune from judicial review. On July 15, plaintiffs filed a Notice of Cross-Appeal seeking a determination whether Judge Smith erred when he ordered a change of venue from Bannock County to Ada County; and whether Judge Newhouse erred when he ordered a trial to decide if an emergency actually existed when H.B. 2 was passed, where the legislative record on the bill was already before the Court.

For the reasons set forth below, we affirm the change of venue granted by Judge Smith of the Sixth Judicial District, vacate the preliminary injunction issued by Judge Newhouse of the Fourth Judicial District, and remand for further proceedings on plaintiffs’ claims not raised in this appeal.

I.

Legislative Declarations of Emergency

The central issue on this appeal is whether the courts, in the particular circumstances of this case, may properly review the legislature’s declaration of emergency in legislation it passes. This issue touches on seemingly conflicting provisions of the Idaho Constitution and the Idaho Code. Our analysis must be made in light of the doctrine of the separation of powers among co-equal branches of government as well as the extent to which the Idaho Constitution provides for a retention of certain powers by the people.

Article 2, § 1 of the Idaho Constitution reads:

“Departments of government. — The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.”

The authority to determine the effective date of any act passed by the legislature is vested exclusively in the legislature pursuant to art. 3, § 22 of the Idaho Constitution. That section reads:

“When acts take effect. — No act shall take effect until sixty days from the end of the session at which the same shall have been passed, except in case of emergency, which emergency shall be declared in the preamble or in the body of the law.”

In Johnson v. Diefendorf, 56 Idaho 620, 635, 57 P.2d 1068, 1083 (1936) (hereinafter Johnson), this Court noted that in case of emergency, which is declared to exist in the preamble or in the body of the act, “it is left to the discretion of the legislature to fix the time when it shall go into effect.” We noted, in addition, that, “The language employed in art. 3, sec. 22, leaves no room for any other interpretation.” Id. at 635-36, 57 P.2d at 1083-84.

Johnson is almost dispositive of this issue, save for the fact that we noted, “Whether it is for the legislature or the court to say, finally, as to the existence of an emergency within the meaning of the constitution, is not before us. It was stipulated at the trial, in substance, that an emergency existed for the enactment of this law.” Id. at 638, 57 P.2d at 1086.

The language of Johnson, however, must be read in conjunction with a case that preceded it by four years which also addressed determinations of emergency, Diefendorf v. Gallet, 51 Idaho 619, 10 P.2d 307 (1932) (hereinafter Gallet). In Gallet we found that the judiciary cannot second-guess the governor’s determination that a sufficient emergency exists to justify calling an extraordinary session of the legislature. We also found that the judiciary cannot second-guess the legislature’s determination that a sufficient emergency exists to justify dispensing with the constitutional requirement that before an act may be passed it must be printed and read on three separate days in each house. Id. at 638-39, 10 P.2d at 326-27; see ID. CONST, art. 3, § 15.

In Gallet we said,

“The determination as to whether facts exist such as to constitute ‘an extraordinary occasion’ is for him [the governor] alone to determine. The responsibility and the discretion are his, not to be interfered with by any other co-ordinate branch of the government.

“ ‘It would be an unprecedented proceeding for the court to entertain a controversy wherein proof is offered to ascertain judicially whether an extraordinary occasion existed of sufficient gravity to authorize the governor to convene the legislature in extra session. The character of the legislation to be considered by the legislature was by the constitution left to the governor, and a review of such a discretionary act of the governor should not be done by the courts.’ (Utah Power & Light Co. v. Pfost, 52 Fed. (2d) 226.)

“ ‘It was the exclusive province of the governor, under the constitution, to determine whether an occasion existed of sufficient gravity to require an extra session of the legislature, and his conclusion in that regard is not subject to review by the courts. Farrelly v. Cole, 60 Kan. 356, 56 Pac. 492, 44 L.R.A. 464.’ (State v. Fair, 35 Wash. 127, 102 Am.St. 897, 76 Pac. 731.)” Gallet, supra at 638-39, 10 P.2d at 326-27.

The decision that a legislative bill is so urgently and immediately needed as to justify a declaration of emergency is a decision-making function that is uniquely legislative. The courts are ill equipped to make such policy decisions. Borrowing from the analogous reasoning of the U.S. Supreme Court in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), it is clear that there is a textually demonstrable constitutional commitment to the legislature of the issue of determining whether a sufficient emergency exists to necessitate immediate effectuation of legislation. The language of art. 3, § 22 and its interpretation in Johnson and Gallet bears this out. The respect due to the co-equal and independent legislative branch of state government and the need for finality and certainty about the status of a duly enacted statute contribute to the reluctance of the courts to inquire into whether the legislature’s determination of an effective date is justified. Cf. Baker, supra at 214-15, 82 S.Ct. at 708-09.

Similarly, there is a lack of judicially discoverable and manageable standards for resolving the problem of what events must exist to constitute a sufficient emergency such that legislation directed to alleviate that emergency can justifiably become immediately effective. For a court to undertake its own independent resolution of such policy determinations creates the potential for embarrassment from multifarious pronouncements by different branches of government on one question. Cf. Baker, supra at 217, 82 S.Ct. at 710.

In Gallet, we noted,

“The motives which prompted the governor of a state to take such action or to make such determination are not proper subjects of judicial inquiry. Such inquiry would be opposed both to the plainest principles of public policy and the freedom of action by the executive within the constitutional authority of that department of government.” Gallet, supra at 639, 10 P.2d at 327 (quoting In re Moyer, 12 Idaho 250, 85 P. 190 (1906)).

We then stated, “The identical reasoning applies to the determination of urgency by the legislature.” Gallet, supra at 639, 10 P.2d at 327.

We are bound to respect the reasonable exercise by the legislature of powers expressly delegated to it by the constitution of this state, and in the absence of other constitutional offense cannot interfere with it. Id. at 635, 10 P.2d at 323. This is a fundamental concept of American government and is embodied in our own constitution. Id.) ID. CONST, art. 2, § 1.

If there were no other “constitutional offense” involved in this case, then our inquiry, as in Gallet, could end at this point. However, at the heart of this case is the resolution of the apparent conflict between the legislature’s constitutional authority to render legislation immediately effective, and the constitutional right of the voter to approve or reject any act passed by the legislature through the referendum process. The relevant constitutional provision on the right of referendum is art. 3, § 1 of the Idaho Constitution, which reads:

“§ 1. Legislative power — Enacting clause — Referendum — Initiative. — The legislative power of the state shall be vested in a senate and house of representatives. The enacting clause of every bill shall be as follows: ‘Be it enacted by the Legislature of the State of Idaho.’ “The people reserve to themselves the power to approve or reject at the polls any act or measure passed by the legislature. This power is known as the referendum, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, demand a referendum vote on any act or measure passed by the legislature and cause the same to be submitted to a vote of the people for their approval or rejection.

“The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature. This power is known as the initiative, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, initiate any desired legislation and cause the same to be submitted to the vote of the people at a general election for their approval or rejection.”

Our constitutional provision for referendum differs from all others we have examined ¹ and both parties at oral argument concede that the language of art. 3, § 1 is unique to our state. See Johnson, supra at 634, 57 P.2d at 1082. Many other state constitutions which provide the voters with the right to approve or reject laws referred to them, specify only certain types of laws which can or cannot be referred.² Our constitution, on the other hand is very broad in that the people have “the power to approve or reject at the polls any act or measure passed by the legislature.” (Our emphasis). However, this right of referendum in Idaho is not self-executing,³ Johnson, supra at 636, 57 P.2d at 1084, and in fact, was dormant and inoperable for 21 years until 1933 when the legislature passed Chapter 18 of Title 34 of the Idaho Code.

The pertinent provision of this referendum enabling legislation at issue here is I.C. § 34-1803 which states,

“34-1803. Referendum petitions — Time for filing — When election held — Effective date of law. — Referendum petitions with the requisite number of signatures attached shall be filed with the secretary of state not more than sixty (60) days after the final adjournment of the session of the state legislature which passed on the bill on which the referendum is demanded. All elections on measures referred to the people of the state shall be had at the biennial regular election. Any measure so referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon, and not otherwise. [1933, ch. 210, § 3, p. 431.]”

Some states have language similar to the last sentence of this statute in their constitutional provisions for referendum. In Idaho, such language has not been included in art. 3, § 1 and, as we stated in Johnson,

“In Idaho that is a statutory provision which, if it was intended to prevent the legislature from making emergency laws effective immediately upon their approval by the governor, is in conflict with the part of the constitution which relates to emergency laws, and it is ineffectual to prevent what the constitution has provided for.” Johnson, supra at 635, 57 P.2d at 1083.

The possible conflict which we must resolve is, therefore, actually between the legislature’s constitutional authority to declare emergencies and the language of a statute which says any measure referred to the people shall take effect “when it is approved by a majority of the votes cast thereon, and not otherwise.” Those last three words and the dilemma they present in light of the language relating to the legislature’s constitutional authority to declare an emergency was addressed in Johnson wherein this Court stated:

“What is meant by the last sentence of that section? Is it to be construed to mean that, although the constitution reserves to each legislative session the right when emergency for the enactment and operation of a law arises, to fix the time when such law shall become effective and, when necessary, make it effective immediately upon its approval by the governor, the 1933 session could, nevertheless, fix the date when emergency laws submitted to referendum vote shall become effective when they are approved by a majority of the votes cast thereon and not otherwise? To so hold is to decide that the 1933 session of the legislature has substituted its wisdom and decision for that of future sessions, with respect to future emergencies, and has amended the constitution and deprived its successors of the power to make laws, for the enactment and operation of which emergencies exist, effective when approved by the governor. A legislative session is not competent to deprive future sessions of powers conferred on them, or reserved to them, by the constitution.” Johnson, supra at 636, 57 P.2d at 1084.

If the statutory language relating to referendum were to be construed as asserted by the plaintiffs, the constitutional authority of the legislature to declare an emergency and thereby make legislation effective immediately, would be rendered a nullity. Where two constructions of a statute are possible, one resulting in the statute being constitutional and the second rendering the statute unconstitutional, we will construe the statute, i.e., I.C. § 34-1803, so as to avoid conflict with the constitution. Id. As we stated in Johnson, “where there is room for two constructions of a statute, both equally obvious and equally reasonable, the court must, in deference to the legislature of the state, assume that it did not overlook the provisions of the constitution and designed the act to take effect.” Id. at 637, 57 P.2d at 1085, (quoting Grice v. Clearwater Timber Co., 20 Idaho 70, 117 P. 112 (1911)).

The legislature of the state is authorized by the constitution to declare an emergency and thereby render an act effective immediately upon its passage. The people of the state of Idaho are statutorily authorized to approve or reject that legislation at the next biennial election. Hence, H.B. 2 is, and will continue to be, effective until at least November 4, 1986, and thereafter only if approved by the voters. The filing of a petition to refer to the voters an act passed by the legislature cannot operate to prevent the act from becoming immediately effective if the legislature has declared an emergency in the body or preamble of the act. Similarly, the legislature, by its declaration of an emergency, making an act effective immediately, cannot thereby prevent the act from being referred to the people for their approval or rejection at the next biennial election.

Plaintiffs’ ultimate assertion is that the events which precipitated, the enactment of H.B. 2 did not rise to the level of an actual emergency. Whether this is true or not, we hold that the legislature’s determination of an emergency in an act is a policy decision exclusively within the ambit of legislative authority, and the judiciary cannot second-guess that decision. In the absence of a legislative invasion of constitutionally protected rights, the judicial branch of government must respect and defer to the legislature’s exclusive policy decisions. Such is the very nature of our tripartite representative form of government.

We therefore vacate the preliminary injunction imposed on the defendants by the district court, since it was based on the erroneous assumption that the courts could probe into the legislature’s justification for declaring an emergency in 1985 H.B. 2.

We remand, however, to the district court for further determination of the plaintiffs’ other claims, none of which were a subject of this appeal.⁴

II.

Venue

Judge Smith of the Sixth Judicial District Court determined at the onset of this case that the basis of plaintiffs’ cause of action was the allegedly improper declaration of emergency in H.B. 2, which arose in Ada County, where the legislature was sitting. Therefore, Judge Smith granted the defendants’ motion for a change of venue from Bannock County to Ada County pursuant to I.C. § 5-402. That provision reads

“5-402. Actions for penalties and against officers. — Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial:

“1. For the recovery of a penalty or forfeiture imposed by statute, except, that when it is imposed for an offense committed on a lake,' river or other stream of water, situated in two (2) or more counties, the action may be brought in any county bordering on such lake, river or stream, and opposite to the place where the offense was committed.

“2. Against a public officer, or person specially appointed to execute his duties, for any act done by him in virtue of his office; or against a person who, by his command or in his aid, does anything touching the duties of such officer.”

The second subsection of this statute is the applicable part in this case.

The defendants in this case are all public officers and the passage of an emergency clause in H.B. 2 gave rise to immediate duties those officers were to perform by virtue of their office. Those duties, of course, were not the actual voting on the bill, but rather arose as a consequence of the passage of a piece of emergency legislation, i.e., signing, certifying and immediately — as opposed to the normal delayed— enforcing the legislation. Plaintiffs’ dominant cause for seeking to enjoin the defendants from fulfilling those duties was based on the allegedly improper passage of the bill with an emergency clause for which no emergency allegedly existed. Hence, the legislature’s authority to pass emergency legislation was the main action which caused plaintiffs’ claim for injunction to arise. Recognizing this, Judge Smith correctly looked to and applied I.C. § 5-402(2) to determine the proper venue for this cause of action. We affirm that decision.

As to those portions of the complaint which remain to be determined against the remaining defendants, we need not, and do not, herein decide the proper venue therefor. On remand, our affirmation of the change of venue to Ada County does not preclude any future motions for change of venue upon a showing of appropriate circumstances.

Costs to appellant.

No attorney fees on appeal.

SHEPARD, BAKES and HUNTLEY, JJ., concur.

1 . Not all state constitutions provide their citizens with the right of referendum as does Idaho. Those state constitutions which do provide such a right, which we have examined, are: ALASKA CONST, art. XI, § 1; ARIZ. CONST, art. IV, pt. I, § 1; ARK. CONST, art. V, § 1, amend. 7; CAL. CONST, art. IV, § 23a; COLO. CONST, art. V, § 1; KY. CONST. § 171; ME. CONST, art. IV, pt. I, § 1; MD. CONST, art. XVI, § 2; MASS. CONST, art. XLVIII; MICH. CONST, art. II, § 9; MO. CONST, art. Ill, § 49; MONT. CONST, art. V, § 1; NEB. CONST, art. Ill, § 3; NEV. CONST, art. XIX, § 1; N.M. CONST, art. IV, § 1; N.D. CONST, art. II, § 25, amend. 26; OHIO CONST, art. II, § 1; OKLA. CONST, art. V, § 1; OR. CONST, art. IV, § 1; S.D. CONST, art. Ill, § 1; UTAH CONST, art. VI, § 1; WASH. CONST, art. II, § 1.

2 . Those state constitutional provisions which specifically enumerate the types of laws that may be made subject to a referendum and/or specifically exclude certain types of laws that cannot be referred to the voters are: ALASKA CONST, art. XI, § 7; ARIZ. CONST, art. IV, pt. I, § 1(3); ARK. CONST, art. V, § 1, amend. 7; CAL. CONST, art. IV, § 23a; COLO. CONST, art. V, § 1; KY. CONST. § 171; ME. CONST, art. IV, pt. Ill, §§ 16 & 17; MD. CONST, art. XVI, § 2; MASS. CONST, art. XLVIII, Ref. Ill, § 2; MICH. CONST, art. II, § 9; MO. CONST, art. Ill, § 52a; MONT. CONST, art. V, § 1; NEB. CONST, art. Ill, § 3; N.M. CONST, art. IV, § 1; OHIO CONST, art. II, § lc & d; OKLA. CONST, art. V, § 2; OR. CONST, art. IV, § 1; S.D. CONST, art. Ill, § 1; UTAH CONST, art. VI, § 1(2); WASH. CONST, art. II, § lb.

3 . By contrast, many state constitutions which grant to the people the right of referendum specifically indicate that such a right is self-executing which the legislature cannot prohibit or restrict. See. ARIZ. CONST, art. IV, pt. I, § 1; ARK. CONST, art. V, § 1, amend. 7; COLO. CONST, art. V, § 1; MD. CONST, art. XIV, § lb; MASS. CONST, art. XLVIII, Gen. Prov. VII; NEB. CONST, art. Ill, § 4; NEV. CONST, art. XIX, § 5; N.D. CONST, art. II, § 25, amend. 26; OHIO CONST, art. II, § lg; OR. CONST, art. II, § 18; WASH. CONST, art. II, § Id. The plaintiffs' argument relies heavily on the case of State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 P. 11 (1915) and cases of other jurisdictions that followed its reasoning. Since Washington’s referendum provision is qualitatively different from Idaho’s, particularly in that the former is self-executing and the latter is not, plaintiffs’ line of cases are readily distinguishable.

4 . As noted above, the plaintiffs filed a comprehensive 21-page complaint arguing among other things, that H.B. 2 has been preempted by federal law, that it is a violation of plaintiffs’ first amendment rights of free speech and assembly, that it is unconstitutionally vague and over-broad, and that it grants civil remedies to only one of two classes of persons created by the statute. There has been no determination at the district court level as to the merits of these claims, or whether they justify relief, injunctive or otherwise.