Could Idaho voters reduce the Fish and Game Commission to five members and change how commissioners were nominated?

Plain-English summary

Kermit W. Andrus filed an initiative on January 31, 2002 to change the Idaho Fish and Game Commission. It proposed reducing the commission from seven members to five, ending service at the Governor’s pleasure, removing the party-affiliation restriction, and creating a Citizen Wildlife Advisory Council to nominate commissioners. It would also reduce the number of regions from seven to five, redraw their boundaries, lengthen commissioners’ terms from four years to six, and stagger those terms.

The Attorney General’s office found no apparent legal issue with those changes at the time of its review. The commission is created by statute, and the certificate cited Smylie v. Williams for the rule that a legislatively created office can be modified, controlled or abolished by the legislature. Because the Idaho Constitution recognizes initiatives as legislative power, the office said voters could propose these statutory changes through an initiative.

The certificate was an advisory review of a proposal. It did not say the initiative had passed or describe the final composition of the commission.

Currency note

This opinion was issued in 2002. 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

Did the AG say the restructuring proposal was unconstitutional?

No. The certificate says the measure “does not appear to present any legal issues at this time.” Its analysis rests on the commission’s statutory status and the initiative power.

What changes would the initiative make to commission membership?

It would cut membership from seven to five, remove the party-affiliation restriction, end service at the Governor’s pleasure, and create a Citizen Wildlife Advisory Council from which members would be nominated. The certificate does not spell out how that council would operate.

What would change for regions and terms?

The initiative would reduce the regions from seven to five, change their geographic boundaries, increase commissioner terms from four to six years, and stagger the terms.

Does this certificate establish that the proposal became law?

No. The AG reviewed the filed petition and sent advisory comments to the petitioner. This source does not report whether signatures were gathered, whether the measure reached the ballot, or whether it was enacted.

Background and statutory framework

The certificate cites Idaho Code § 36-101 as creating the commission and describes the proposed amendments to § 36-102. It cites Idaho Constitution art. III, § 1 for the initiative power and Smylie v. Williams, 81 Idaho 335, 341 P.2d 451 (1959), for the legislature’s authority over an office it created. Idaho Code § 34-1809 governs the AG’s advisory review of the initiative petition.

Citations and references

• Idaho Code §§ 34-1809, 36-101, 36-102
• Idaho Constitution art. III, § 1
• Smylie v. Williams, 81 Idaho 335, 341 P.2d 451 (1959)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C022102.pdf

Original opinion text

February 21, 2002

The Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED

Re: Certificate of Review
Initiative to Amend Idaho Code § 36-102

Dear Mr. Cenarrusa:

An initiative petition was filed with your office on January 31, 2002. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. It must be stressed that, given the strict statutory time frame in which this office must respond and the complexity of the legal issues raised in this petition, this office’s review can only isolate areas of concern and cannot provide in- depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General’s recommendations are “advisory only,” and the petitioners are free to “accept or reject them in whole or in part.”

BALLOT TITLE

Following the filing of the proposed initiative, our office will prepare short and long ballot titles. The ballot titles should impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure. While our office prepares the titles, if petitioners would like to propose language with these standards in mind, we would recommend that they do so and their proposed language will be considered.

MATTERS OF SUBSTANTIVE IMPORT

Entitled “Initiative to Amend Title 36-102 That Governs the Idaho Fish And Game Commission,” petitioners apparently seek to amend Idaho Code § 36-102. The amendments to Idaho Code § 36-102 are outlined as follows:

1. Reduce the number of members of the Idaho Fish and Game Commission from seven (7) members to five (5);

2. Eliminate the service of members to be at the pleasure of the Governor;

3. Eliminate the restriction on party (political) affiliation;

4. Create a Citizen Wildlife Advisory Council (CWAC), from which Commission members would be nominated;

5. Reduce the number of regions from seven (7) to five (5);

6. Amend the geographical boundaries of the regions in order to accomplish the above-referenced reduction;

7. Increase the length of the term from four (4) to six (6) years;

8. Provide for staggered terms.

The Idaho Fish and Game Commission is created pursuant to statute. Idaho Code § 36-

101. Offices of legislative creation can be modified, controlled, or abolished by the
     legislature. See Smylie v. Williams, 81 Idaho 335, 341 P.2d 451 (1959). The initiative is recognized by the Idaho Constitution as a legislative power; therefore, these changes may be made through an initiative. Idaho Constitution article 3, § 1; Smylie. As a result, this measure does not appear to present any legal issues at this time.

                                   CONCLUSION
     
     I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style
     

     and matters of substantive import and that the recommendations set forth above have been communicated to petitioner Kermit W. Andrus by deposit in the U.S. Mail of a copy of this certificate of review.

                                                Sincerely,
     
                                                ALAN G. LANCE
                                                Attorney General
     

Analysis by:

BRIAN P. KANE
Deputy Attorney General