Simpson v. Cenarrusa

944 P.2d 1372, 130 Idaho 609, 1997 Ida. LEXIS 102

• Court: Idaho Supreme Court
• Decided: August 7, 1997
• Docket: Docket 23526
• Status: Published

Opinions

JOHNSON, Justice.

This is a writ of prohibition and declaratory judgment case concerning the constitutionality of Proposition 4, entitled “Initiative instructing candidates for state legislature and U.S. Congress to support congressional term limits; requires statement indicating non-support on ballot.” We declare that the ballot legend and pledge portions of Proposition 4 are unconstitutional, but that the instructions to members of congress and legislators do not violate Article V of the United States Constitution and are severable. Therefore, we issue a writ of prohibition, prohibiting the secretary of state from carrying out the directions contained in Proposition 4 concerning ballot legends and the pledge. We also deny petitioners attorney fees under the private attorney general doctrine.

I.

THE BACKGROUND

Proposition 4 was approved by the voters on November 5, 1996, and became law on November 20, 1996. See Appendix for text of Proposition 4. Section 2 of Proposition 4 consists of five subsections:

(1) a proposal for an amendment to the United States Constitution (the proposed amendment) imposing term limits on members of congress;

(2) an instruction to Idaho members of congress to use all their delegated powers to pass the proposed amendment, and prescribing the following legend be printed on the ballot for any who did not: “DISREGARDED VOTERS’ INSTRUCTION ON TERM LIMITS;”

(3) a pledge (the pledge) for non-incumbent congressional and legislative candidates that they use all their legislative powers to enact the proposed amendment, and if elected, will act and vote according to subsection (2) or (4), and prescribing the following legend be printed on the ballot for any who did not: “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS;”

(4) an instruction to Idaho legislators to apply to congress for a convention for proposing amendments to the United States Constitution, and prescribing the following legend be printed on the ballot for any who did not: “DISREGARDED VOTERS’ INSTRUCTION ON TERM LIMITS;” and (5) imposing responsibility on the secretary of state to review the record of Idaho members of congress and legislators and put the following legends (the ballot legends) on the ballot: “DISREGARDED VOTERS’ INSTRUCTION ON TERM LIMITS” next to the name of any who did not follow the instructions, and “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS” next to the name of any non-incumbent congressional or legislative candidate who did not pledge to support the proposed amendment.

Subsection (5) also provides a limited right of appeal to this Court for candidates or electors who are dissatisfied with the secretary of state’s decision regarding whether or not to print on the ballot one of the ballot legends. Section 4 of Proposition 4 is a severability clause, stating that if any portion of Proposition 4 is held to be invalid or unconstitutional, the remaining portion will remain in full force and effect.

Ten members of the Idaho legislature (petitioners) seek a writ of prohibition against the secretary of state barring the implementation of Proposition 4, and a declaratory ruling that Proposition 4 is unconstitutional. This Court issued an order allowing the proponents of Proposition 4, Citizens for Federal Term Limits (Citizens), the opportunity to respond to the petitioners. In this proceeding, the secretary of state and Citizens filed a joint brief, and counsel for each presented oral argument to the Court.

During oral argument, the secretary of state and Citizens asserted that petitioners do not have standing to challenge the portion of Proposition 4 that involves members of congress or non-incumbent candidates for congress. Because standing was not raised in the pleadings or in the briefs, we decline the invitation to address it. I.A.R. 35(b)(4); see Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 93, 803 P.2d 993, 999 (1991).

We note preliminarily that legislation enacted by initiative and legislation enacted by the legislature “are on equal footing and are subject to the same limitations.” Westerberg v. Andrus, 114 Idaho 401, 407, 757 P.2d 664, 670 (1988). Therefore, we determine the constitutionality of Proposition 4 by the same standards as we would if the legislature had enacted it.

II.

THE BALLOT LEGEND IN SUBSECTIONS (2) AND (4) OF SECTION 2 IS UNCONSTITUTIONAL BECAUSE IT VIOLATES THE SPEECH AND DEBATE CLAUSES OF THE IDAHO AND UNITED STATES CONSTITUTIONS.

Petitioners assert that the ballot legend contained in subsections (2) and (4) of section 2 of Proposition 4 violates the speech and debate clauses of the Idaho and United States Constitutions because it forces the secretary of state to “question” members of congress and legislators for speech and debate in either house. We agree.

Article III, § 7 of the Idaho Constitution states that senators and representatives shall not “be questioned in any other place” for “words uttered in debate in either house.” Although this section is entitled “privilege from arrest,” it also includes a shield against civil liability for legislators during the legislative session. This clause was debated at the Idaho Constitutional Convention, where Delegate Clagett from Shoshone County stated: “If there is any one place in the world where freedom of speech shall be allowed, going almost to the verge of license, it is in the legislature.” 1 Peoceedings and Debates of the Constitutional Convention of Idaho 1889 507 (I.W. Hart ed., 1912). Delegate Sweet from Latah County stated: “Those words are for the protection of members in debate, and it is so stated specifically, and it is simply intended in this clause, as it is in all other constitutions, to leave [legislators] free in the legislature in their debate_” Id. at 509.

Subsection (4) of section 2 of Proposition 4 directs the executive branch of the Idaho government, through the secretary of state, to “question” speech by legislators that is not in support of the proposed amendment. Subsection (4) instructs the legislators to vote in favor of the application for a constitutional convention, propose the amendment, and second the proposal. Although these instructions may be followed without “speaking,” they are included within the realm of protected speech. The questioning is performed through the imposition of the ballot legend on those legislators who do not act in accordance with the instruction in Proposition 4. Because the ballot legend is imposed only on those legislators who do not act in accordance with the instruction, the ballot legend is, in effect, a state-imposed consequence for certain speech in the legislature. Although private individuals have a right to engage in public debate concerning the legislative actions of legislators, the state does not have a similar right. Nor can the state subject a legislator to consequences for speech in the legislature. We conclude that the speech and debate clause of the Idaho Constitution does not allow the state to question speech and debate by Idaho legislators concerning the calling of a convention for proposing amendments to the United States Constitution.

Article I, § 6 of the United States Constitution states that members of congress “shall not be questioned in any other place” for “any speech or debate in either house.” This clause “was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members [of congress] against prosecutions that directly impinge upon or threaten the legislative process.” Gravel v. United States, 408 U.S. 606, 616, 92 S.Ct. 2614, 2622, 33 L.Ed.2d 683 (1972). “[I]t is apparent from the history of the clause that the privilege was not born primarily of a desire to avoid private suits ... but rather to prevent intimidation by the executive and accountability before a possibly hostile judiciary.” United States v. Johnson, 383 U.S. 169, 180-81, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966).

“[A]ny restriction on a legislator’s freedom undermines the ‘public good’ by interfering with the rights of the people to representation in the democratic process.” Spallone v. United States, 493 U.S. 265, 279, 110 S.Ct. 625, 634, 107 L.Ed.2d 644 (1990); see also Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951). The ballot legend in subsection (2) of section 2 of Proposition 4 serves as a state-imposed consequence against members of congress for speaking a certain way. The ballot legend violates the United States Constitution’s mandate that members of congress shall not be questioned for speech and debate in either house, especially by the executive branch.

III.

THE PLEDGE IN SUBSECTION (3) OF SECTION 2 IS UNCONSTITUTIONAL BECAUSE IT VIOLATES A NON-INCUMBENT CANDIDATE’S RIGHT TO FREE SPEECH.

Petitioners assert that subsection (3) of section 2 of Proposition 4 violates Article I, § 9 of the Idaho Constitution because it compels a non-incumbent candidate to take a pledge to support term limits. We agree.

Article I, § 9 states: “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty." (emphasis added). This Court has stated that Article 1, § 9 is worded differently than the First Amendment of the United States Constitution, and may be subject to a different analysis. See State v. Casey, 125 Idaho 856, 858, n. 3, 876 P.2d 138, 140, n. 3 (1994); Gardner v. Evans, 110 Idaho 925, 932, n. 1, 719 P.2d 1185, 1192, n. 1, cert. denied, 479 U.S. 1007, 107 S.Ct. 645, 93 L.Ed.2d 701 (1986); State v. Newman, 108 Idaho 5, 15-16, n. 25, 696 P.2d 856, 866-67, n. 25 (1985).

Subsection (3) of section 2 of Proposition 4 instructs the state to offer the non-incumbent candidates for congress and legislature a pledge to support term limits. By offering the pledge, the state compels a candidate to speak in favor of or in opposition to the proposed amendment. A candidate who does not take the pledge will have a legend next to the candidate’s name on the ballot. The pledge and the ballot legend, “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS,” have the effect of forcing a non-incumbent candidate to take a stance on a political issue. This is an attempt by the state to control the candidate’s freedom of speech by requiring the candidate to pledge to support the proposed amendment or face the ballot legend for not speaking.

We conclude that Article I, § 9 does not allow the state to restrict a candidate’s right to speak freely, unless there is a flagrant abuse of that right. Cf McDougall v. Sheridan, 23 Idaho 191, 234-35, 128 P. 954, 969 (1913). Proposition 4’s pledge is an attempt by the state to govern political speech without showing any flagrant abuse of the right by compelling candidates to take a stance on the proposed amendment. We conclude that the pledge in subsection (3) of section 2 of Proposition 4 is unconstitutional under Article I, § 9 of the Idaho Constitution. Without the pledge, it is impossible to apply the ballot legend provision in section (3), and therefore it must also fall.

We note that petitioners also assert that subsection (3) of section 2 violates the First Amendment to the United States Constitution. Because we conclude that this subsection violates Article I, § 9 of the Idaho Constitution, we need not address this assertion.

IV.

THE INSTRUCTIONS TO MEMBERS OF CONGRESS AND LEGISLATORS DO NOT VIOLATE ARTICLE V OF THE UNITED STATES CONSTITUTION.

Petitioners assert that Proposition 4 violates Article V of the United States Constitution because it allows the voters to instruct the members of congress and legislators to amend the United States Constitution. We disagree. Standing alone, the instructions concerning the proposed amendment do not violate Article V of the United States Constitution.

Article V of the United States Constitution provides the method for proposing amendments to the United States Constitution. These methods are a proposal by two-thirds of the congress or by application of two-thirds of the states for the calling of a constitutional convention. These are the only two methods of proposing amendment. Hawke v. Smith, 253 U.S. 221, 226, 40 S.Ct. 495, 496, 64 L.Ed. 871 (1920).

The people, through initiative and referendum process, do not have the power to ratify amendments to the United States Constitution. Id. “[T]he power to legislate in the enactment of the laws of a state is derived from the people of the state. But the power to ratify a proposed amendment to the federal Constitution has its source in the federal Constitution.” Id at 230, 40 S.Ct. at 498; see also Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922). Hawke involved an amendment to Ohio’s constitution that extended the referendum process to the ratification of proposed amendments to the United States Constitution. The amendment stated:

The people also reserve to themselves the legislative power of the referendum on the action of the General Assembly ratifying any proposed amendment to the Constitution of the United States.

Id at 225, 40 S.Ct. at 496. The United States Supreme Court held that the state does not have the authority to require the submission of the ratification to a referendum under the state constitution. Id at 231, 40 S.Ct. at 498.

In Kimble v. Swackhamer, 439 U.S. 1385, 99 S.Ct. 51, 58 L.Ed.2d 225 (1978), the United States Supreme Court denied an application for interim relief against the placing of a referendum question on the Nevada ballot. Nevada had enacted a statute that required the submission of an advisory question to the registered voters as to whether the Equal Rights Amendment should be ratified by the legislature. The Supreme Court stated that it did not see any “constitutional obstacle to a nonbinding, advisory referendum of this sort.” Id at 1388, 99 S.Ct. at 54.

Without the ballot legends, Proposition 4 is more similar to Kimble than Hawke because it is a non-binding, advisory initiative. Proposition 4’s instruction does not require the voters to determine whether to ratify the proposed amendment. Instead, it merely instructs Idaho members of congress and legislators to use their legislative powers to pass the proposed amendment. Members of congress and legislators are not compelled to support the proposed amendment; they are free to act as they wish. Proposition 4 does not eliminate the Article V requirements for proposing a constitutional amendment. The proposed amendment must still go through the constitutionally prescribed process in order to be ratified. Proposition 4’s instructions are not an attempt to allow the voters to ratify a federal constitutional amendment.

In addition, the Idaho Constitution, Article I, § 10, gives the people the right to instruct their representatives and to petition the legislature for the redress of grievances. This section enables voters to instruct the Idaho members of congress and legislators. The instructions contained in Proposition 4 do not violate Article V of the United States Constitution.

V.

SEVERABILITY OF THE BALLOT LEGENDS.

Section 4 of Proposition 4 states that if any portion of Proposition 4 “is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, the remaining portions ... shall not be affected, but shall remain in full force and effect." This Court has stated that when the unconstitutional portion of a statute is not integral or indispensable, it will recognize and give effect to a severability clause. Boundary Backpackers v. Boundary County, 128 Idaho 371, 378, 913 P.2d 1141, 1148 (1996). We conclude that the ballot legends and the non-incumbent candidate pledge are not integral or indispensable, and, therefore, the remaining portions of subsections (2) through (5) of section 2 of Proposition 4 may remain in effect. Subsection (1) (the purpose section) of section 2 and section 3 (automatic repeal) also remain intact.

VI.

THE PETITIONERS ARE NOT ENTITLED TO ATTORNEY FEES UNDER THE PRIVATE ATTORNEY GENERAL DOCTRINE.

Petitioners argue that they are entitled to attorney fees under the private attorney general doctrine. We disagree.

The private attorney general doctrine allows an award of attorney fees based on three factors: (1) the strength or societal importance of the public policy indicated by the litigation; (2) the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff; and (3) the number of people standing to benefit from the decision. Hellar v. Cenarrusa, 106 Idaho 571, 577-78, 682 P.2d 524, 530-31 (1984). In this case, the petitioners have failed to show that it was necessary to bring a private action. There is no evidence that the state attorney general was given the opportunity to bring this suit and refused.

VII.

CONCLUSION

We declare that the ballot legend in subsections (2) and (4) of section 2 of Proposition 4 violates the speech and debate clauses of the Idaho and United States Constitutions. We also declare that the pledge in subsection (3) of section 2 of Proposition 4 violates the right to free speech guaranteed by the Idaho Constitution, and that it is impossible to apply the ballot legend in subsection (3) without the pledge. When this opinion becomes final, we will issue a writ of prohibition, prohibiting the secretary of state from carrying out the directions contained in subsections (2), (3), (4), and (5) of section 2 of Proposition 4. We also declare that the instruction portions of Proposition 4 do not violate Article V of the United States Constitution, and that the portions of Proposition 4 we have not ruled are unconstitutional or impossible to apply are severable and remain intact.

Because of the mixed result, we award no costs.

We find no basis to award petitioners attorney fees.

TROUT, C.J., and McDEVITT, J., concur.