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Idaho grocery tax stays for now


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Bryan Smith, left, Ron Nate and Bryan Zollinger give a news conference in Idaho Falls in April on their challenge of Otter’s veto of the grocery tax repeal bill. | Natalia Hepworth,

BOISE – Putting an end to the months-long battle between many Idaho legislators and Gov. C.L. “Butch” Otter over his controversial veto of the grocery tax repeal bill, the Idaho Supreme Court upheld the governor’s veto Tuesday.

The bill would have eliminated Idaho’s 6 percent sales tax on groceries.

The court’s decision comes after 30 legislators argued that Otter failed to veto the bill within the 10-day time limit after the Legislature adjourned.

However, Otter and Secretary of State Lawerence Denney argued precedent from the 1978 Cenarrusa v. Andrus ruling, which stated the 10 days began at the time a bill arrives at the governor’s desk, not after the Legislature’s adjournment.

The court overruled Cenarrusa v. Andrus, stating the 10-day time limit, indeed, began upon the Legislature’s adjournment. However, the court also ruled the Legislature must present bills to the governor while still in session.

“In summary, Article IV, section 10, of the constitution clearly and necessarily prohibits the Legislature from presenting bills to the governor after the Legislature has adjourned sine die (for an indefinite period),” the justices wrote. “It requires that bills must be presented to the governor while the Legislature is still in session. This is the only logical interpretation of the section.”

The court ruled this will only apply to future legislative sessions and not to the grocery tax repeal bill.

In his dissenting opinion, Justice Jim Jones wrote, “this court does not have the authority to amend the constitution, and I do not see how the majority’s ‘interpretation’ differs from an amendment. … I agree that the language of Article IV, section 10, of the constitution implies that the Legislature must be in session to present a bill to the governor. Crucially, though, Article IV, section 10, does not expressly prohibit the Legislature from presenting a bill after adjournment sine die.”

Rep. Ron Nate, R-Rexburg, who helped head the lawsuit, said he was happy with the court’s overruling of Cenarrusa v. Andrus but was disappointed in the court’s decision to not apply the ruling to the grocery tax repeal.

I dare the governor to try and veto a bill in the middle of the session when it’s such a popular bill.”

“Today’s court is saying that back then (the 1978 court) effectively amended the constitution by putting in words that weren’t there,” Nate told

He said he believes the court was right in saying it does not have the power to amend the Constitution.

“But, immediately after saying that about the ’78 Court, this court effectively amended the constitution by inserting a deadline, that the Legislature has, that is not there in the clear and plain language of the constitution,” he said.

Nate said the next step is clear.

“The first priority of the 2018 session should be passing the grocery tax repeal,” he said. “We passed it with supermajority in the 2017 session, so it should be a no-brainer in the 2018 session. I dare the governor to try and veto a bill in the middle of the session when it’s such a popular bill.”

Otter’s spokesperson was not available for comment. The governor is recovering from back surgery and an infection in the hospital. Denny’s office did not return’s request for comment either.