Could Idaho voters require the Legislature to call for a federal marriage amendment convention before passing any new law?

Plain-English summary

Vivian L. Wayment filed a 2004 initiative requiring Idaho’s Legislature, at each session, to call for a federal constitutional convention before passing any new law. The duty would continue until a federal amendment was proposed that either defined marriage as between a man and a woman or left each state free to define marriage for its residents. The draft also directed the Legislature to take steps to participate in the proposed convention.

Attorney General Lawrence Wasden’s office said the proposal looked more like a mandate for legislative action than an ordinary law. An initiative has the same legal standing as a statute passed by the Legislature; it cannot override the Legislature’s constitutional control of its rules of order and procedure. The certificate predicted a reviewing court would likely find the restriction impermissible under Idaho Constitution art. III, §§ 1 and 9–10.

The proposal also lacked a title, chapter or other indication of where it would be placed in the Idaho Code. The AG called that an organizational problem. He did not assess the policy merits of a convention call.

Currency note

This opinion was issued in 2004. 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

Could this initiative force the Legislature to issue a convention call first?

The AG predicted a court would likely say no. The initiative would condition passage of any new Idaho law on a prior convention call, restricting authority the Idaho Constitution gives the Legislature over its own order and procedure.

What would end the proposed duty to call for a convention?

Under the petition’s text, the duty would end after a federal constitutional amendment was adopted that either defined marriage as only between a man and a woman or ensured each state’s right to decide its own definition. The proposal also described Congress proposing such an amendment as part of its initial condition.

Did the certificate decide whether a marriage amendment was good policy?

No. The AG said the initiative sought to compel a convention call, and the certificate saw no reason to discuss the policy reasons for that call.

What other drafting problem did the AG identify?

The petition did not say where the proposed new law belonged in the Idaho Code. The office treated that omission as an organizational concern.

Background and statutory framework

Idaho Code § 34-1809 required this advisory review of the filed initiative. The certificate cited Idaho Constitution art. III, § 1 for legislative authority and art. III, §§ 9 and 10 for the Legislature’s authority over its rules and procedures. It also cited Westerberg v. Andrus for the principle that initiative statutes and legislatively enacted statutes have equal force and face the same constitutional limits.

Citations and references

• Idaho Code § 34-1809
• Idaho Constitution art. III, §§ 1, 9–10
• Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C040104.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATIORNEY GENERAL

LAWRENCE G. WASDEN

April 1, 2004

The Honorable Ben Ysursa
Secretary of State
HAND DELIVERY

Re: Certificate of Review Initiative for Defense of Marriage Amendment

Dear Secretary of State Ysursa:

An initiative petition was filed with your office on March 12, 2004. 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

Petitioners have submitted the following proposed law:

Until the Congress of the United States of America shall have proposed an amendment to the United States Constitution that only (a) defines marriage as between a man and a woman or (b) ensures to each state the right to decide for itself the definition of marriage for all its residents, then, the Legislature of each session of this State shall, prior to the

P.O. Box 83720, Boise, Idaho 83720-0010
Telephone: (208) 334-2400, FAX: (208) 334-2530 Located at 700 W. Jefferson Street, Suite 210

The Honorable Ben Ysursa
April 1, 2004
Page 2

passage of any new legislation by the Legislature, call for the convening of a United States Constitutional Convention. Such call shall be for a Convention with the same authority and rules as the original founding Convention and shall be valid for a period of seven years once made.
The Legislature shall take all such additional acts as necessary, including the appointment of representatives, to call, attend and fully participate in such a Convention. Such representatives shall meet at a place designated by the sponsors of this law no later than May 14 of each year, and shall as one of their first items of business determine whether there is adequate participation so that a Convention has authority to proceed. When, in consequence of such a Convention, any Constitutional amendment adopted shall either (a) define marriage as only between a man and a woman or (b) ensure to each state the right to decide for itself the definition of marriage for all its residents, then the Legislature of this State shall thereafter have no further obligation to issue a new call for election.

Although this is a proposal for a new law, it does not contain a title, a chapter or any other indication of where within the code it should be placed. This is problematic for organizational reasons within the Idaho Code.

It should also be noted that this proposal does not appear to be as much of a law as it is a mandate that the legislature act. Laws passed by initiative are on equal footing with legislation enacted by the legislature, and the two must comply with the same constitutional requirements. Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1984). This initiative seeks to enact a law, which will mandate that the legislature call for a constitutional convention prior to passage of any legislation. In essence, this statute attempts to limit the constitutional authority of the legislature, as outlined within Article III, § 1 of the Idaho Constitution. A reviewing court would likely conclude that this limitation appears impermissible, because the legislature is granted plenary authority over the setting of its rules of order and procedure by the Idaho Constitution. Idaho Constitution Art. III, §§ 9-10. In short, an initiative cannot restrict the actions of future legislatures absent a constitutional mandate.

As this initiative seeks to compel the legislature to issue a call for a national constitutional convention, there is no reason to discuss the policy reasons for the convention call.

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

The Honorable Ben Ysursa
April 1,2004
Page 3

have been communicated to petitioner Vivian 1. Wayment by deposit in the U.S. Mail of a copy of this certificate of review.

Sincere~y,

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C.'LAWRENCE G. WASDEN
Attorney General

Analysis by:

Brian P. Kane
Deputy Attorney General