ID Certificate 7/22/2004 2004-07-22

What did Idaho's AG say about a 2004 ballot initiative to repeal Idaho's Right to Work law?

Short answer: The AG cleared the initiative as raising no significant legal issues. Initiative legislation is on equal footing with bicameral legislation and so can repeal a statute. The substantive policy question of whether to repeal Right to Work was outside the scope of the AG's review.

Disclaimer: This is an official Idaho Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Idaho attorney for advice on your specific situation.

Plain-English summary

This is the AG's statutory review (under Idaho Code § 34-1809) of a ballot initiative filed July 9, 2004, by David D. Whaley to repeal Idaho's Right to Work law (Idaho Code §§ 44-2001 to 44-2012).

The certificate is brief because the AG identified no significant legal issues. The proposed initiative sought to repeal a series of legislative enactments, which is well within the scope of the initiative power reserved to the people by Idaho Const. art. III, § 1. Laws passed by initiative are on equal footing with legislation enacted by the Legislature (Westerberg v. Andrus, 114 Idaho 401 (1988)), and the two must comply with the same constitutional requirements. Since the initiative and the law it sought to repeal are on equal footing, no constitutional or substantive defect appeared on the face of the proposal.

This was the second Right to Work repeal initiative reviewed in roughly a year (the AG had reviewed a similar proposal on July 10, 2003, sponsored by Barbara A. Harris). The AG offered no opinion on the policy merits of repeal, only on the legal form of the proposal.

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.

Idaho's Right to Work law (Idaho Code §§ 44-2001 to 44-2012) remains in force as of this writing. Neither the 2003 nor the 2004 repeal initiative qualified for the ballot. The legal framework around initiative power and Right to Work statutes has not materially changed.

Common questions

Q: Did this initiative make the ballot?
A: No. Neither the 2003 nor the 2004 Right to Work repeal initiative gathered sufficient signatures to qualify for the ballot.

Q: What is Idaho's Right to Work law?
A: A series of statutes (Idaho Code §§ 44-2001 to 44-2012) enacted in 1985 that prohibits employers and unions from making union membership or the payment of union dues a condition of employment. Idaho was the 21st state to adopt right-to-work legislation. The law followed a long political battle in Idaho; its repeal has been proposed several times by initiative.

Q: Why is this certificate so short?
A: Because a clean repeal of an existing statute, with no other substantive provisions, raises no special constitutional concerns. The longer certificates are typically required when the AG finds drafting errors, single-subject problems, federal-preemption issues, or constitutional defects. A clean statutory repeal usually generates only a short clearance.

Q: Could a Right to Work statute violate any constitutional provision if it were repealed?
A: Federal labor law (the Taft-Hartley Act amendment to the National Labor Relations Act, 29 U.S.C. § 164(b)) expressly authorizes states to enact or repeal right-to-work statutes. So repeal does not raise federal preemption concerns. It is a policy choice that voters or the Legislature may make.

Background and statutory framework

Idaho's initiative power (Idaho Const. art. III, § 1) is implemented through Title 34, Chapter 18 of the Idaho Code. Section 34-1809 requires the Attorney General to review every initiative petition and issue a Certificate of Review with advisory comments.

Idaho Code §§ 44-2001 to 44-2012 (the Idaho Right to Work Act) was enacted in 1985 over the veto of Governor John V. Evans. It prohibits employers from requiring union membership or the payment of union dues, fees, or assessments as a condition of employment, and allows employees terminated for failure to comply with such a requirement to bring an action for damages.

Citations and references

Statutes and constitutional provisions:
- Idaho Code § 34-1809 (AG initiative review)
- Idaho Code §§ 44-2001 to 44-2012 (Right to Work Act)
- Idaho Const. art. III, § 1 (initiative power)

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

Related certificate: ID AG Cert. 7/10/2003 (substantively similar Right to Work repeal proposal, sponsored by Barbara A. Harris).

Source

Landing page: https://www.ag.idaho.gov/office-resources/opinions/
Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C072204.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

July 22, 2004
VIA HAND DELIVERY

The Honorable Ben Ysursa
Idaho Secretary of State
Statehouse

Re: Certificate of Review
Proposed Initiative To Repeal The Right To Work Law (Idaho Code §§ 44-2001 - 44-2012)

Dear Mr. Secretary:

An initiative petition was filed with your office on July 9, 2004. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and 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." The petitioners are free to "accept or reject them in whole or in part." The opinions expressed in this review are only those which may affect the legality of the initiative. This office offers no opinion with regard to the policy issues raised by this proposed initiative.

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

Petitioner has submitted a proposed initiative seeking to repeal Idaho Code §§ 44-2001 - 44-2012, commonly known as Idaho's "Right to Work" law. As a series of legislative enactments, these code sections are subject to repeal by the initiative power reserved to the people by the Idaho Constitution. Idaho Const. art. III, § 1.

Article III, § 1 of the Idaho Constitution vests the legislative power of the state in the Senate and House of Representatives, and in the people through the initiative process. 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). As both the proposed initiative and the law it seeks to repeal are interpreted to be on "equal footing," this proposed initiative does not appear to raise any significant legal issues.

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 David D. Whaley by deposit in the U.S. Mail of a copy of this certificate of review.

Sincerely,

LAWRENCE G. WASDEN
Attorney General

Analysis by:
Brian P. Kane
Deputy Attorney General