What did Idaho's AG say about the 'Idaho State Term Limits Act of 2002' ballot initiative, an attempt to reinstate term limits after the Legislature repealed an earlier initiative?

Plain-English summary

This is the AG's review (under Idaho Code § 34-1809) of a ballot initiative filed February 12, 2002, titled the "Idaho State Term Limits Act of 2002." It would have created a new Idaho Code § 34-907 imposing ballot-access restrictions on statewide elected officials and state legislators who had served specified numbers of terms.

The initiative's context: an earlier term-limits initiative passed by Idaho voters had been codified at the previous Idaho Code § 34-907 and was upheld by the Idaho Supreme Court on December 13, 2001. Two months later, on February 6, 2002, the Idaho Legislature repealed that statute. The 2002 initiative sought to reinstate substantially the same term limits.

The AG's review confirmed that the proposal was legally proper:
- The legislature has the power to repeal initiative legislation (because initiative legislation is on equal footing with bicameral legislation under Westerberg v. Andrus, 114 Idaho 401 (1988));
- The voters likewise have the power to re-enact (by initiative) what the legislature has repealed;
- The substance of the prior § 34-907 had already been upheld as constitutional, so a substantively identical re-enactment should also be constitutionally permissible.

The certificate did not raise significant legal issues with the substance of the proposed initiative.

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.

The 2002 term limits reinstatement initiative did not qualify for the ballot, and Idaho does not currently have term limits for state legislators or statewide officials. The constitutional analysis (initiatives equal to statutes; legislature can repeal initiative legislation; voters can re-enact) reflects long-standing Idaho doctrine.

Common questions

Q: Did this initiative make the ballot?
A: No. The 2002 reinstatement initiative did not gather sufficient signatures.

Q: Why did the Legislature repeal the term limits the voters had passed?
A: That is a policy question outside the scope of the AG's review. The Legislature has constitutional authority to repeal any statute, including statutes passed by initiative. The political and policy debate around the repeal is documented in contemporaneous press coverage and legislative history.

Q: How can the legislature repeal what the voters passed?
A: Idaho Const. art. III, § 1 vests the legislative power in the Senate, House, and the people through initiative. Initiative legislation is on equal footing with bicameral-passed legislation (Westerberg v. Andrus, 114 Idaho 401 (1988)), so any statute can be amended or repealed by either path. To override that, the voters would need to amend the Idaho Constitution.

Q: Could a term limits constitutional amendment work?
A: Possibly, but Idaho has not adopted one. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), held that states cannot impose term limits on members of Congress beyond the qualifications set by the U.S. Constitution. State-office term limits stand on different ground: states generally have authority to set qualifications for state offices.

Background and statutory framework

Idaho's initiative power (Idaho Const. art. III, § 1) lets voters propose statutes; Idaho Code § 34-1809 requires the AG to issue a Certificate of Review.

The original Idaho term-limits statute (former Idaho Code § 34-907) was enacted by initiative in the 1990s, upheld by the Idaho Supreme Court on December 13, 2001, and repealed by the Legislature on February 6, 2002. The 2002 reinstatement initiative was filed six days later (February 12, 2002).

Citations and references

Statutes and constitutional provisions:
- Idaho Code § 34-907 (former)
- Idaho Code § 34-1809
- Idaho Const. art. III, § 1

Case:
- Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1988)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C022802.pdf

Original opinion text

February 28, 2002

The Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED

Re: Certificate of Review – Initiative Concerning State Term Limits

Dear Mr. Cenarrusa:

An initiative petition was filed with your office on February 12, 2002, called the "Idaho State Term Limits Act of 2002" (proposed initiative).

Idaho Code § 34-1809 provides in relevant part:

Review of initiative and referendum measures by attorney general— . . . the attorney general . . . shall, within twenty (20) working days from receipt thereof, review the proposal for matters of substantive import and shall recommend to the petitioner such revision or alteration of the measure as may be deemed necessary and appropriate. The recommendations of the attorney general shall be advisory only and the petitioner may accept or reject them in whole or in part. The attorney general shall issue a certificate of review to the secretary of state certifying that he has reviewed the measure for form and style . . .

Pursuant to this duty, this office has reviewed the proposed initiative and prepared the following advisory comments.

[The full certificate runs several pages, with sections on Ballot Titles; Matters of Substantive Import (The Initiative; comparison to former Idaho Code § 34-907 and the Idaho Supreme Court's December 13, 2001 decision upholding it); and Conclusion. See the linked PDF for the complete text.]

Sincerely,

LAWRENCE G. WASDEN
Attorney General