What did Idaho's AG say about a 2006 ballot initiative to expand the Idaho Open Meeting Law and increase the fines for violations?

Plain-English summary

This is the AG's statutory review (Idaho Code § 34-1809) of a 2006 ballot initiative filed by L. Roger Falen on December 19, 2005, to amend the Idaho Open Meeting Law (Idaho Code §§ 67-2342 and 67-2347). The proposal would have expanded the definition of bodies covered by the law and substantially increased the fines for violations.

Wasden flagged four sets of issues:

Drafting form. The proposal stated its substantive change in narrative form ("Add to the definition: any committee, commission; etc that operates under any public agency, whether it receives funding from said agency or not is subject to the open meeting law"). The AG recommended that the petitioner instead restate the statute in legislative format with strikeouts and underlines, so signers and voters can see precisely what is changing.

Vague defined class. "[A]ny committee, commission; etc" is ambiguous. The AG recommended more precise language defining which entities are covered, both for clarity and to give covered entities notice (a covered party who lacked notice could later argue they did not know the law applied to them).

Wrong subsection. The petition proposed amending Idaho Code § 67-2347(1) to change the fine. But § 67-2347(2), not (1), contained the fine provision. The proposed amendment as filed would not have changed the fine at all. The petitioner needed to amend (2).

Penalty-classification risk. The 2005 statute set a $150 maximum civil fine for a first violation and $300 for subsequent violations. The initiative would have set a $500 minimum for the first violation and a $1,000 minimum for subsequent violations, with no maximum. The AG warned that the absence of a cap and the higher amounts could lead a court to construe the penalty as criminal rather than civil. If criminal, members of governing bodies accused of open-meeting violations would be entitled to all the procedural protections that attach to criminal prosecutions. Worse, a court could strike the penalty provisions entirely as unconstitutionally vague (no maximum). The fix is to set a maximum and to specify the procedure for collection.

Petition-form compliance. The petition did not follow the substantial form prescribed by Idaho Code § 34-1801A, which includes a felony warning for double-signing, a "petition" header demanding submission to voters at a regular general election, and a certification of petitioners' status as qualified electors. The AG recommended the petitioner conform to that form.

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 Idaho Open Meeting Law was substantially overhauled in 2015 (S.B. 1062). The current Open Meetings Act is now in Idaho Code §§ 74-201 through 74-208, with the former §§ 67-2340 series repealed. The penalties, definitions of "governing body," and enforcement procedures have all been rewritten since 2006. Anyone advising on Idaho open-meetings questions today should consult the current Title 74, Chapter 2 statutes, not the §§ 67-2342 / 67-2347 sections referenced here.

Common questions

Q: Did this initiative make the ballot?
A: This certificate addressed only the legal form of the proposal. Whether the petitioner gathered enough signatures to qualify the initiative for a subsequent general election is a separate question that the certificate does not resolve.

Q: Why does it matter whether a fine is "civil" or "criminal"?
A: Because criminal penalties trigger constitutional protections (right to counsel, beyond-a-reasonable-doubt standard, jury trial rights, double-jeopardy protection, and so on) that civil penalties do not. Courts decide whether a "civil" label is honest by looking at the size of the penalty, the absence of caps, the history of the violation as criminal or civil, and the procedure used to enforce. A $1,000-or-more uncapped fine on an individual government official looks more punitive than regulatory, and a court could re-classify it as criminal.

Q: Why does the AG recommend strikeouts and underlines?
A: Because Idaho Const. art. III, § 18 prohibits any act from being revised or amended by mere reference to its title; the section as amended must be set forth and published in full. Even if the constitutional rule does not strictly require strikeouts and underlines, that format lets signers and voters see exactly what is changing. Without it, signers may not know what they are endorsing.

Q: What is the difference between Idaho Code §§ 67-2341 and 67-2342 (in effect in 2006)?
A: Section 67-2341 contained the definitions ("public agency," "governing body," etc.). Section 67-2342 contained the substantive requirement that meetings of public agencies be open. The AG suggested that the petitioner's expansion of the law's coverage to "any committee, commission; etc that operates under any public agency" would fit better as a definitional change in § 67-2341 than as a change to the substantive open-meeting requirement in § 67-2342.

Background and statutory framework

Idaho's Open Meeting Law in 2006 was codified at Idaho Code §§ 67-2340 through 67-2347 (since recodified at Idaho Code §§ 74-201 through 74-208 in the 2015 overhaul). The law required meetings of public agencies' governing bodies to be open and noticed, with civil penalties for knowing or unknowing violations.

Idaho Code § 34-1809 requires the Attorney General to review every initiative petition for form, style, and substantive import. Section 34-1801A prescribes the form an initiative petition must "substantially follow," including the felony warning for double-signing and a certification of petitioners' qualification.

Citations and references

Statutes:
- Idaho Code § 34-1801A (form of initiative petition)
- Idaho Code § 34-1809 (AG review)
- Idaho Code § 67-2341 (open-meeting definitions, 2006 version)
- Idaho Code § 67-2342 (open-meeting requirement, 2006 version)
- Idaho Code § 67-2347 (penalties, 2006 version)
- Idaho Const. art. III, § 18 (full-text amendment requirement)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C011306.pdf

Original opinion text

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

January 13, 2006

The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE

RE: Certificate of Review
Proposed Initiative to Amend Idaho Code §§ 67-2342 and 67-2347 Relating to the Open Meeting Law

Dear Secretary of State Ysursa:

An initiative petition was filed with your office on December 19, 2005. 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 timeframe 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 that may affect the legality of the initiative. This office offers no opinion with regard to the policy issues raised by this proposed initiative.

BALLOT TITLES

Following the filing of the proposed initiative, this 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 this office prepares the ballot titles, if petitioners wish to propose language with these standards in mind, we recommend that they do so. Their proposed language will be considered in our preparation of the ballot titles.

MATTERS OF SUBSTANTIVE IMPORT

The proposed initiative seeks to amend two code sections of the Idaho Open Meeting Law: Idaho Code §§ 67-2342 and 67-2347. With respect to the proposed change to Idaho Code § 67-2342, the initiative petition states, in relevant part:

Add to the definition: Any committee, commission; etc that operates under any public agency, whether it receives funding from said agency or not is subject to the open meeting law.

This language would be better put into a legislative format. In other words, the petitioners might wish to consider restating Idaho Code § 67-2342(1) and showing precisely how the initiative would change that subsection. If any language is to be removed from that subsection, it should be shown as stricken, and added language should be shown as underscored.

As an alternative to amending Idaho Code § 67-2342, the petitioners should amend Idaho Code § 67-2341(4) or Idaho Code § 67-2341(5). The changes the petitioners are proposing better fit in the context of Idaho Code § 67-2341.

[The certificate then continues with discussion of the imprecise definition language ("committee, commission; etc"), the recommendation that proposed changes to § 67-2347 be put in legislative format, the wrong-subsection citation issue, the penalty-classification analysis (no maximum, much higher minimums than current law), and the petition-form compliance issue under Idaho Code § 34-1801A. The full text runs approximately 3 pages and is available in the linked PDF.]

CERTIFICATION

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 via a copy of this certificate of review, deposited in the U.S. Mail to L. Roger Falen, 516 N. Laurel, Genesee, Idaho 83832.

Sincerely,

LAWRENCE G. WASDEN
Attorney General

Analysis by:
William A. von Tagen
Deputy Attorney General