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Idaho reps: Otter’s veto of grocery tax repeal too late


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Bryan Smith, left, and Ron Nate and Bryan Zollinger give a news conference Wednesday in Idaho Falls. | Natalia Hepworth,

IDAHO FALLS — Three east Idaho conservatives are challenging Gov. C.L. “Butch” Otter’s veto of a bill that was aimed at eliminating the 6 percent sales tax on groceries.

Otter vetoed the bill late Tuesday night. He said the price was simply too high for Idaho. The bill had previously been approved overwhelmingly in both the Idaho House and Senate.

But during a news conference Wednesday, Rep. Ron Nate, R-Rexburg, Rep. Bryan Zollinger, R-Idaho Falls, and local attorney Bryan Smith offered a legal challenge to that veto. They claim the governor’s veto of the grocery tax repeal was invalid because the action was made too late, after the constitutional 10-day deadline had elapsed.

In Idaho, laws that passed by the Legislature have 10 days to be vetoed before before they automatically become law.

The conflict between the governor and the legislators stems from the timing Otter received the bill. Lawmakers went home March 29, and Otter received the grocery tax appeal March 31.

Nate, Zollinger and Smith believe a direct reading of state constitution mandates Otter’s veto period began the minute the Legislature adjourned.

However, the governor’s office and the secretary of state’s office disagree. They cite a 1978 Supreme Court case — Cenarrusa v. Andrus — that ruled the 10-day period begins when the governor is presented the bill. In this case, it was two days after the Legislature adjourned.

On Wednesday, Jon Hanian, Otter’s press secretary, reaffirmed that stance and said the veto was constitutionally legal.

“In our view and in the secretary of state’s view, it’s a valid veto,” Hanian told Idaho Reports.

But Nate doesn’t believe that ruling fits the strict language of the Idaho Constitution. He also says that because more conservative judges now sit on the Idaho Supreme Court, that legal precedent could be challenged and overturned.

“We fully anticipate the governor will attempt to argue there is Supreme Court precedence for his untimely veto,” Nate said. “However, in the dissenting opinion, Judge Donaldson wrote, ‘Within 10 days after adjournment means exactly what it says.’ … We agree the constitution is clear on this matter.”

The three Republicans have written a letter to the Secretary of State Lawerence Denney asking him to uphold their reading of the constitution. If the secretary of state’s office does uphold the veto, Nate says the group will consider legal action.

“We have prepared and submitted this letter asking the secretary of state to acknowledge the new law of the land in Idaho regarding tax-free purchases of groceries,” Nate said. “We are prepared to pursue all legal avenues necessary to ensure the constitution is adhered to.”