Idaho Legislature reconvening could spark lawsuits
Keith Ridler, Associated Press
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BOISE (AP) — Due to the unprecedented way lawmakers are reconvening at the Statehouse next week, any laws they pass could end up in court and be declared null. Opponents say they could also target session costs and lawmaker living expenses.
The House and Senate plan to meet starting Monday to pass a law or laws to thwart President Joe Biden’s sweeping vaccine requirements that affect some 100 million Americans.
The House chose to recess last May rather than officially adjourn like the Senate. An Idaho attorney general’s opinion said its reading of the state constitution is that both chambers are in recess rather than officially adjourned, meaning the chambers can reconvene.
However, the opinion written last May also said that the “Legislature’s decision to pursue this course of action causes risk which would result in a reviewing court concluding differently.”
Jim Jones, a former chief justice of the Idaho Supreme Court as well as a former Republican state attorney general, said his reading of the state Constitution indicates both chambers are officially adjourned and can only return if called by the governor for a special session.
Republican Gov. Brad Little has said he doesn’t need to call a special session because the House never adjourned.
Jones said that without a special session, the Legislature can’t legally meet again until the regular session that starts in early January. That calls into question whether the thousands of dollars a day it will cost taxpayers to have lawmakers in Boise is legitimate.
“Quite frankly, that’s one of the avenues of a legal attack,” Jones said. “You don’t actually go against the session itself, but you go against the payment of the session as if it were a regular session.”
He helped form the Committee to Protect and Preserve the Idaho Constitution, which was part of a lawsuit that saw a court earlier this year throw out a Republican-passed law severely restricting the ballot initiative process for voters.
Potential laws coming out of the Legislature next week could also trigger a lawsuit. Jones said any law would have to be especially harmful to Idaho for his group to take legal action. An example, he said, would be for Idaho to criminalize acts by federal workers involving mask or vaccine mandates.
He noted that he doesn’t see his group filing a lawsuit against less harsh laws because lawmakers could pass the law again when they meet for the regular session in January, making such a lawsuit moot.
Overall, though, he said the laws likely to be passed will be “window dressing” as lawmakers prepare for the Republican primary in May and the general election in November.
Republican House Speaker Scott Bedke and Republican Senate President Pro Tem Chuck Winder said late last month that potential legislation includes banning COVID-19 vaccine mandates by the federal government and private employers.
Both said lawmakers will look at legislation that would allow the state to initiate legal action over federal vaccine mandates on private employers. The legislation would include $2 million for a potential legal battle. Bedke has said he’d like to see the Legislature wrap up business in just a few days.
Idaho is already involved in two lawsuits against the Biden administration involving vaccine mandates for federal workers and another involving vaccine mandates for employers with more than 100 workers.
Bedke said he expects about a dozen pieces of legislation to be introduced, including some to prevent employers from requiring employees get vaccinated. Bedke and Winder have been cool to the idea of government getting between employees and employers, but some Republican lawmakers favor the approach.
Bedke has the ability to call the House back into session based on a resolution the House passed before going into recess. The Senate officially adjourned, and the mechanism for bringing senators back isn’t exactly clear.
The attorney general’s opinion from May said it was difficult to “ascertain how either chamber could be legally forced back into session.”
Winder said Monday that the Senate will reconvene based on the opinion from the attorney general’s office that the chambers are only in recess. He said the Senate is looking to be done in a few days and deal only with vaccination legislation. The public, he said, will have a chance to testify on proposed legislation in hearings.
“But it will be a shortened version because we only want to be there for a day or two,” he said.
Democratic House Minority Leader Ilana Rubel said she would prefer waiting for the regular session where legislation can be vetted and the public would have time to weigh in.
“I think it’s never a good idea to come in trying to pass major legislation we haven’t even seen yet in under 72 hours,” she said. “I suspect it’s going to be done in great haste, and I’m concerned we’re going to come out with laws that are unconstitutional and harmful to the public and our business community.”