Did a March 1997 redraft of the Idaho One Percent Initiative fix the implementability problems the AG had identified the year before?

Plain-English summary

Ronald D. Rankin filed yet another version of the One Percent Initiative on February 11, 1997. This was the third major iteration the AG's office had reviewed (the first was in 1991, addressed in Attorney General Opinion 91-9; the second was the 1996 ballot version, addressed in the soon-to-be-published Attorney General Opinion 96-3). Deputy AG Matthew J. McKeown's certificate noted that "the latest version of the one percent initiative is similar to previous versions" with "a number of specific changes" but with "the overall structure and intent of the one percent initiative remains unchanged."

The new version made one notable change to address the AG's prior implementability critique. Section 1.1 now read:

The maximum amount of tax on property subject to assessment and taxation within the state of Idaho shall not exceed one percent (1%) of the assessed value of such property, after all statutory exemptions applying to such property have been applied. The one percent (1%) shall be collected by the counties and apportioned to the taxing districts within the counties, using a formula to be developed by the legislature's enabling legislation for this act.

The AG said this change did not solve the problem. Acknowledging that further legislation was needed did not create the legislation. And under the rule confirmed in Johnson v. Diefendorf, 56 Idaho 620, 57 P.2d 1068 (1936) and Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943), one legislature cannot bind a future legislature; the only way to compel an enabling-legislation outcome would be a constitutional amendment, not an initiative statute. So the redrafted initiative still could not implement itself.

The certificate also identified a recodification problem. The initiative repeatedly referenced Idaho Code § 63-923, but the tax code had been recodified by 1996 Session Laws, ch. 98 (H.B. 783), and the substance of old § 63-923 was now at Idaho Code § 63-1313. The initiative needed to be updated throughout. Section 1.2's language change ("grants on new construction and/or annexation are exempt") narrowed the budget-cap exemption from any income generated by new construction or annexation to only "taxes, fees or grants" so generated, which the AG flagged as ambiguous.

Sections 4 and 5 contained another conceptual problem. They tried to forbid future legislatures from repealing or reducing existing property-tax exemptions and required exclusive non-property-tax funding of public schools (now expressly including community colleges, which Opinion 96-3 had said would otherwise be excluded). The AG repeated that one legislature cannot constrain the legislative power of the next, citing Johnson v. Diefendorf: "[a] legislative session is not competent to deprive future sessions of powers conferred on them, or reserved to them, by the constitution." Initiative legislation has the same equal-footing limit. To bind the legislature in the way sections 4 and 5 attempted would require a constitutional amendment.

The conclusion was the same as in 1996: the initiative remained unimplementable.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What did "enabling legislation" mean in this context?

The new section 1.1 language acknowledged that someone needed to write the actual mechanics for collecting the 1% cap and apportioning it among taxing districts, and assigned that job to "the legislature's enabling legislation for this act." But the initiative itself could not order the legislature to pass any particular law. If the legislature failed to act, or passed legislation the initiative's drafters did not like, there was no remedy. The AG had explained this in Opinion 96-3 in detail: there is no procedural mechanism in either existing law or the initiative for actually adjusting levies to fit the cap, and the new "enabling legislation" punt did not create one.

Why does the principle that one legislature can't bind another matter so much here?

Because the initiative's whole structure depended on commitments by future legislatures that the current law (and the constitution) could not enforce. Johnson v. Diefendorf and Luker v. Curtis rest on a fundamental separation: the constitution is the only source of binding constraints on legislative power, and any attempt by the people through initiative to constrain future legislative choices runs into the same wall as legislative attempts to do the same. The only way to lock in the M&O-levy phaseout, the exemption preservation rule, or any other constraint on future legislatures was to amend the Idaho Constitution.

What's the recodification problem with section 6?

Section 6 of the initiative repealed Idaho Code § 63-923 by name, but that section number no longer existed after the 1996 recodification (1996 Session Laws, ch. 98, H.B. 783). The substance of old § 63-923 was now at Idaho Code § 63-1313. So if the initiative passed unchanged, it would purport to repeal a non-existent section, which would have no effect, and the actual section 63-1313 would remain on the books, creating an internal inconsistency the AG warned the petitioner to fix before circulating.

What was the implied repeal point?

Idaho law (State v. Davidson) recognizes that a statute providing for repeal of all inconsistent laws is effective to accomplish such repeal by implication. But implied repeal is disfavored (State v. Martinez), and statutes are construed to be in harmony if possible (Cox v. Mueller). Only those parts of an existing statute "actually in conflict with a subsequent statute" are repealed by implication. The AG's concern was that the initiative's vague conflict clause would force courts to do significant rewriting on the property tax code without clear direction, and a court forced to choose between effectively repealing the entire property tax code and finding the initiative unimplementable would choose the latter.

Why does Title 50, Chapter 17 (local improvement districts) matter?

Local improvement districts issue bonds repaid by special assessments levied against property within the district, under Idaho Code § 50-1721A and related sections. Bonds issued by local improvement districts are not affected by Article 8, section 3's two-thirds vote requirement under Byrns v. City of Moscow, 21 Idaho 398, 121 P. 1034 (1912). But section 1.4 of the initiative would have required two-thirds approval for indebtedness backed by special assessments, which would have changed how local improvement district bonds get issued. Without specific drafting, the initiative would have layered an unintended new requirement onto an existing bond-issuance regime.

Background and statutory framework

The "One Percent Initiative" had a long history in Idaho. Voters had passed an earlier 1% cap in 1978 (modeled loosely on California's Proposition 13). The 1991 version was reviewed in Opinion 91-9. The 1996 ballot version was reviewed in Opinion 96-3 (issued May 16, 1996). This 1997 redraft was the latest attempt and would likely be the basis for a 1998 ballot proposal.

The recodification context: 1996 Session Laws, ch. 98 (H.B. 783) reorganized large portions of Title 63 of the Idaho Code (the tax code). Many statutory provisions kept their substance but moved to new section numbers. This is the kind of recodification that catches drafters off-guard if they are working from older versions of the law; the initiative referred to § 63-923 throughout, when as of January 1, 1997, the relevant provisions were at § 63-1313.

This certificate, like the one issued for the 1996 ballot version of the initiative, reads as a document of patient frustration. The AG's office had now reviewed three iterations of essentially the same proposal and explained, three times, why it could not implement itself. Each version got a few words added in response to prior critiques, but the structural problem (the absence of any mechanism to actually limit levies) remained.

Citations

• Idaho Const. art. 8, § 3
• Idaho Code §§ 34-1809, 50-1721A, 63-923 (renumbered as § 63-1313), 63-1313, 63-2220A, 63-2220B
• State v. Davidson, 78 Idaho 553, 309 P.2d 211 (1957)
• State v. Martinez, 43 Idaho 180, 250 P. 239 (1926)
• Cox v. Mueller, 125 Idaho 734, 874 P.2d 545 (1994)
• Byrns v. City of Moscow, 21 Idaho 398, 121 P. 1034 (1912)
• Johnson v. Diefendorf, 56 Idaho 620, 57 P.2d 1068 (1936)
• Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943)
• 1996 Session Laws, ch. 98 (H.B. 783) (recodification)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C031197.pdf

Original opinion text

March 11, 1997
Honorable Pete T. Cenarrusa
Secretary of State
STATEHOUSE MAIL
Re: Certificate of Review—Initiative to Limit ad Valorem Taxation on Real Property to One Percent of Assessed Value

Dear Mr. Cenarrusa:

An initiative petition that would limit ad valorem taxation on real property to one percent of assessed value was filed with your office on February 11, 1997. Idaho Code § 34-1809 requires the Office of the Attorney General to review the proposed initiative for matters of substantive import. This office prepared a comprehensive opinion reviewing a similar version of the one percent initiative on May 16, 1996 (to be published as Attorney General Opinion 96-3).

MATTERS OF SUBSTANTIVE IMPORT

The latest version of the one percent initiative is similar to previous versions. A number of specific changes have been made in response to criticism of the prior initiative proposal. However, the overall structure and intent of the one percent initiative remains unchanged.

A. Statement of Intent

Among other things, the statement of intent for the initiative states that it will "provide uniform state funding for public schools." It further states that the initiative will "guarantee essential public health and safety service." The operative language of the initiative, however, does not set out a mechanism to ensure uniform state funding for public schools. Likewise, the initiative does nothing to guarantee essential public health and safety service.

The statement of intent also purports to replace the existing language of Idaho Code § 63-923 with the language in the initiative. As an initial matter, the operative language of the initiative does not specifically repeal Idaho Code § 63-923. In addition, because the tax code has been recodified, Idaho Code § 63-923 no longer exists. The language that used to be contained in Idaho Code § 63-923 is now located in Idaho Code § 63-1313. The operative language of the initiative should specifically repeal Idaho Code § 63-1313.

B. Section 1.1

The analysis of a prior version of section 1.1 concluded that it is "not selfexecuting. If the Initiative passes, the implementation requires that the legislature extensively revise [the initiative's] text, the existing property tax laws, or both." Atty. Gen. Op. 96-3 at 14. The last sentence of section 1.1 has been changed as follows:

The maximum amount of tax on property subject to assessment and taxation within the state of Idaho shall not exceed one percent (1%) of the assessed value of such property, after all statutory exemptions applying to such property have been applied. The one percent (1%) shall be collected by the counties and apportioned to the taxing districts within the counties, using a formula to be developed by the legislature's enabling legislation for this act.

(new language underlined). While the new language acknowledges that additional legislation is necessary to implement the one percent initiative, that language is left to future legislatures to develop. As this office has pointed out previously, legislation such as the one percent initiative cannot bind the actions of future legislatures. There is no guarantee that the legislature will promulgate enabling legislation for the one percent initiative. Simply put, the new language does not alter this office's conclusion that the initiative cannot be implemented in its present form.

C. Section 1.2

This office has previously concluded that section 1.2 limits increases in the entire annual budget of cities, counties and taxing districts even if the budget increase is the result of a grant or other source of funding. Atty. Gen. Op. 96-3 at 16. The final sentence of section 1.2 has been changed to clarify that "grants on new construction and/or annexation are exempt" from the one percent limit.

D. Section 2

In order to be implemented, section 2 would have to provide a system of centralizing the budgetary authority of every local taxing district into one unit. This would require a reorganization of Idaho's ad valorem tax system as well as the structure of local governments throughout the state. Once again, since the initiative provides no mechanism to overcome these problems, it is incapable of implementation as it is currently written.

E. Sections 4 and 5

Sections 4 and 5 forbid the legislature from repealing or reducing existing exemptions to property taxes. Sections 4 and 5 also require the legislature to fund all public school education exclusively from general fund or other state and federal resources.

As this office has explained on a number of occasions, these sections will not bind the legislature in any legal sense. The only limitations placed on the power of the legislature to enact legislation are those contained in the United States and Idaho Constitutions. One legislature has no authority to limit or restrict the power of subsequent legislatures. See, e.g., Johnson v. Diefendorf, 56 Idaho 620, 636, 57 P.2d 1068 (1936) ("[a] legislative session is not competent to deprive future sessions of powers conferred on them, or reserved to them, by the constitution"). The same limit applies to legislation by citizen initiative. Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943). The only way to bind the legislature as is intended by sections 4 and 5 would be to amend the Idaho Constitution.

This office previously concluded that "the courts would not construe section 5.1 of the Initiative to apply to community colleges." Atty. Gen. Op. 96-3 at 11. New language has been added to section 5.1 to clarify that community colleges are included in the requirement to fund all public education with revenue from the "general fund and other state and federal revenue sources."

F. Section 6

Section 6 purports to repeal Idaho Code § 63-923 [now Idaho Code § 63-1313] and "any laws in conflict with" the initiative.

CONCLUSION

This is the second time within a year the Office of the Attorney General has reviewed the one percent initiative. In August, 1996, this office concluded that the initiative could not be implemented as it was drafted. While a number of specific changes have been made, the overall structure and intent of the initiative remains the same. Therefore, this office concludes, once again, that the most recent version of the one percent initiative cannot be implemented in its current form.

I hereby certify that the enclosed measure has been reviewed for form, style and matters of substantive import and that the recommendations set forth have been communicated to Ronald D. Rankin by sending him a copy of this certificate via U.S. Mail.

Sincerely,
MATTHEW J. MCKEOWN
Deputy Attorney General
Intergovernmental and Fiscal Law Division