What did Idaho's AG say about the Idaho Education Association's 2006 initiative to raise the sales tax to 6% and dedicate the proceeds to K-12 public schools?
Plain-English summary
This is the Idaho AG's statutory review (under Idaho Code § 34-1809) of a 2006 ballot initiative filed by the Idaho Education Association on December 5, 2005. The proposal would have set the Idaho sales and use tax rate at 6% beginning July 1, 2007, and dedicated the additional revenue to a newly created "Idaho Public Schools Investment Fund" for K-12 funding, with reporting requirements imposed on local school districts.
The AG raised several drafting and constitutional concerns:
Inconsistent terminology. The initiative used three different formulations of permitted uses across proposed Idaho Code §§ 33-911, 33-912(a), and 33-912(b): "funding public education at the K-12 level," "any of nine designated purposes," and "90% must be used for classroom instruction and support." The AG recommended a single consolidated provision and a definition of "classroom instruction and support."
No self-executing appropriation. Idaho Const. art. 7, § 13 provides that no money may be drawn from the treasury except by appropriation made by law. The phrase "shall be utilized" for K-12 schools does not, by itself, appropriate funds. If the petitioner intended an automatic appropriation, the language needed to be clearer (the AG cited Idaho Code § 33-1513 as a model for "continuously appropriated" funds).
Charter school ambiguity. The proposal used inconsistent terms ("local school districts," "local schools," "public schools," "K-12 public schools") and did not address how charter schools (which are public schools but are operated by nonprofit entities and chartered by either districts or the Public Charter School Commission) would participate in the funding mechanism or its reporting obligations.
Federal funds reference. The initiative required the annual K-12 appropriation to include "federal funds." The AG flagged that as problematic because federal-fund use is governed by federal, not state, law.
Repetitive rate language. The "[t]he sales and use taxes ... shall be returned to and maintained at the six percent (6%) rate" language was repeated in two sections, with only one carrying the "effective July 1, 2007" qualifier. The AG recommended removing the redundancy.
Limits on future legislatures are unenforceable. Multiple provisions purported to bind the 2007 (and later) legislatures, including the operational tax rate, the alternative-revenue-stream requirement, and a 2020 reauthorization ballot question. The AG explained that initiative legislation has the same status as statutes passed by the legislature, and a statute cannot bind future legislatures from repealing or amending it. Future legislatures are not effectively constrained by these provisions.
Distribution mechanics oversights. The required revenue placement in the "Idaho Local Public Schools Investment Fund" did not account for Idaho Code §§ 63-3203 (tax anticipation note distributions) or 63-3709 (multistate tax-collection reductions).
Currency note
This opinion was issued in 2006. 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 drafting principles flagged here (avoid inconsistent terminology, draft express appropriations under Art. 7 § 13, do not attempt to bind future legislatures) remain generally applicable to Idaho initiative drafting. The specific code sections referenced have all been amended since 2006. Anyone advising a similar initiative today should pull current Idaho Code (especially Title 33 chapters on school funding and Title 63 on tax administration) before relying on any specific section number.
Common questions
Q: Did this initiative pass?
A: No. The Idaho sales tax rate was raised to 6% in 2006 by a special session of the Legislature (HB 1) as part of a property-tax-relief package, before this initiative could reach the ballot. The IEA initiative did not qualify for the ballot.
Q: Why does the appropriations clause matter for ballot initiatives?
A: Idaho Const. art. 7, § 13 says no money can be drawn from the treasury except by appropriation made by law. If a ballot initiative just deposits money in a fund without expressly appropriating it for spending, the legislature still has to make an annual appropriation before the money can be used. That defeats the purpose of dedicating the revenue. To avoid that, the initiative needed to declare the funds "continuously appropriated" (see Idaho Code § 33-1513 for an example, where pupil transportation funds are continuously appropriated).
Q: Why can't an initiative bind future legislatures?
A: Because in Idaho, initiative legislation is on equal footing with statutes passed by the legislature (Westerberg v. Andrus, 114 Idaho 401 (1988)). Any statute can be amended or repealed by a later statute (Luker v. Curtis, 64 Idaho 703 (1943)). The constitutional power to legislate is granted by Idaho Const. art. III, § 1, and a statute cannot strip the legislature of its constitutional authority (Williams v. State Legislature, 111 Idaho 156 (1986)).
Q: What did the AG say about charter schools?
A: He noted charter schools are public schools (Idaho Code § 33-5203(1)), some are authorized by school districts (§ 33-5203(3)) and some by the Public Charter School Commission (§§ 33-5203(5), 33-5207(6)), and they are all operated by nonprofit entities (§ 33-5204(1)). The initiative did not clarify whether charter schools would receive funding from the new investment fund and how the chartering entities and operating nonprofits would handle reporting obligations. The AG recommended explicit language addressing this.
Q: What is a "Certificate of Review"?
A: A statutory pre-circulation review of a proposed ballot initiative by the Idaho Attorney General under Idaho Code § 34-1809. The recommendations are advisory only; the petitioner is free to accept or reject them in whole or in part.
Background and statutory framework
Idaho's Sales Tax Act (Idaho Code Title 63, Chapter 36) sets the state's sales and use tax rate. In 2005-2006 the rate was 5%. Idaho's K-12 public school funding mechanism is in Title 33; the legislature appropriates from the General Fund annually and distributes to districts under formulas in Idaho Code §§ 33-1002 and following. The IEA's initiative would have layered a new dedicated fund (the "Idaho Local Public Schools Investment Fund") on top of the existing structure, requiring 90% of the new dollars to be spent on "classroom instruction and support."
The constitutional and operational defects the AG flagged are the same kinds of issues that arise in dedicated-revenue initiatives nationwide: how to keep dedicated funds from being supplanted by reduced general appropriations, how to avoid violating a state's "no diversion of dedicated funds" doctrine, how to write self-executing appropriation language, and how to bind future legislatures (which, in most states including Idaho, can't be done at the statutory level).
Citations and references
Statutes and constitutional provisions:
- Idaho Code § 34-1809 (AG initiative review)
- Idaho Code §§ 33-911 to 33-917 (the proposed new sections)
- Idaho Code § 33-1513 (continuous appropriation for pupil transportation, cited as model)
- Idaho Code §§ 33-5203 to 33-5209 (public charter schools)
- Idaho Code §§ 63-3024 (CPI calculation example), 63-3203, 63-3709
- Idaho Const. art. 3, § 1 (legislative power, initiative)
- Idaho Const. art. 7, § 13 (appropriations clause)
Cases:
- Eby v. Newcombe, 116 Idaho 838 (1989) (no surplus language in statutes)
- Magnuson v. Idaho State Tax Commission, 97 Idaho 917 (1976)
- Potlatch Corp. v. U.S., 134 Idaho 912 (2000)
- Peterson v. Franklin County, 130 Idaho 176 (1997)
- Westerberg v. Andrus, 114 Idaho 401 (1988) (initiatives equal to statutes)
- Simpson v. Cenarrusa, 130 Idaho 609 (1997)
- Luker v. Curtis, 64 Idaho 703 (1943)
- Gibbons v. Cenarrusa, 140 Idaho 316 (2002)
- Williams v. State Legislature of Idaho, 111 Idaho 156 (1986)
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C010506.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
January 5, 2006
The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE
Re: Certificate of Review
Proposed Initiative to Increase Sales and Use Taxes and Apply Revenues to Public Education
Dear Secretary of State Ysursa:
We reviewed the initiative petition filed with your office on December 5, 2005. As required by Idaho Code § 34-1809, we offer the following advisory comments. Due to the limited time within which we must respond and the complexity of the legal issues raised in this petition, our review can address only general issues or areas of concern. We cannot provide in-depth analysis of each issue that may present problems. Further, the review statute provides that the Attorney General's recommendations are "advisory only." The petitioners are free to "accept or reject them in whole or in part." Our review addresses only matters that may affect the initiative's legality. We offer no opinion about the policy issues raised by this proposed initiative.
[The certificate then walks through, in order: Ballot Title; Matters of Substantive Import (Summary of the proposal in five enumerated points; General Comments on financial controls, accountability, charter-school participation, and inconsistent terminology; Specific Comments organized by item, including critique of the operative language, the appropriations problem, the use-restriction inconsistencies, the federal-funds problem, the CPI calculation specificity, and the unenforceability of provisions binding future legislatures); and Conclusion. The full text runs approximately 7 pages and is available in the linked PDF.]
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 the petitioner, Idaho Education Association, c/o Jim Shackelford, P.O. Box 2638, Boise, Idaho 83701, by deposit in the U.S. Mail of a copy of this certificate of review.
Sincerely,
LAWRENCE G. WASDEN
Attorney General
Analysis by:
Theodore V. Spangler, Jr.
Deputy Attorney General