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

A 2006 Idaho initiative proposed expanding the Open Meeting Law to committees and commissions operating under public agencies, whether or not they received agency funding. It also proposed higher fines. The Attorney General advised the petitioner to put the changes into legislative format, showing the complete affected subsections with deletions struck and additions underscored. He said the proposed coverage language, including “any committee, commission; etc,” needed a more precise definition so affected bodies could tell whether the law applied to them.

The petition targeted Idaho Code § 67-2347(1) for the fine change, but the certificate says the fine provision was in subsection (2). The existing civil fines were capped at $150 for a first violation and $300 for later violations. The petition proposed minimum fines of $500 and $1,000 respectively, with no maximum. The AG warned that a court might treat the new penalties as criminal rather than civil, requiring criminal procedure protections, and potentially could strike the penalty provisions. He did not predict that either result was certain.

The AG also advised using the petition form substantially prescribed by Idaho Code § 34-1801A. The submitted petition lacked the statute's warning against improper signatures, its “INITIATIVE PETITION” demand for a general election vote, and its qualified-elector certification. These were advisory comments on legality and drafting, not an opinion on the proposal's policy.

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.

Common questions

Which open meeting sections did the AG suggest changing?

The petition proposed changes to Idaho Code §§ 67-2342 and 67-2347. The AG said the committee coverage language might fit better in the definitions at § 67-2341(4) or (5). For the fine, he identified § 67-2347(2), rather than the petition's subsection (1).

Why did the committee language need more precision?

The certificate said “any committee, commission; etc” did not give clear notice of which bodies would be covered. Members of an affected body might argue they had no notice the law applied to them, making enforcement harder.

Did the AG say the proposed fines would definitely be criminal?

No. He said a court might construe the uncapped minimum penalties as criminal rather than civil. That could bring criminal law procedures and constitutional protections into play. He also warned that a court potentially could strike the penalty provisions, given the missing maximum and the existing law's civil character.

Why show deleted and added statutory words?

The AG wanted the petition to restate the affected subsections in legislative format, with removed words struck and new words underscored. He said this would make the law signed by petitioners and voted on by the public match the text placed into the Idaho Code if approved.

What was missing from the petition form?

The certificate lists the warning that knowingly signing twice or signing as an unqualified elector is a felony, a petition heading and demand for submission at a regular general election, and a certification that petitioners were qualified electors. The AG pointed the petitioner to Idaho Code § 34-1801A.

Background and statutory framework

The AG reviewed the proposal under Idaho Code § 34-1809 and stressed that the statutory deadline allowed him to isolate concerns, not analyze every possible issue. The recommendations were advisory; petitioners could accept or reject them. The office said it would prepare impartial short and long ballot titles after filing and would consider title language proposed by petitioners.

Citations

• Idaho Code §§ 34-1801A, 34-1809, 67-2341, 67-2342, 67-2347.

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
VIA HAND DELIVERY

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:

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

Secretary of State Ysursa
January 13, 2006
Page 2 of 3

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.

Notwithstanding the above concerns, the petitioners might wish to consider additional language to make the definition they intend more precise. For instance, a more precise description than “[a]ny committee, commission; etc” should be considered to provide some level of clarity and notice to those entities that are covered by the proposed initiative, should the initiative become law. The lack of this clarity could affect the ability to enforce the proposed code section, as members of such “committee, commission; etc” might argue that they did not have notice that they were covered by the law

The proposed changes to Idaho Code § 67-2347(1) should, likewise, be put into a legislative format in which the petitioners set forth that subsection in its entirety and show which words are being deleted and which words are being added by the proposed initiative. By following such practice, the petitioners will ensure that the initiative petition that is being signed and the initiative that is being voted upon will be the law placed into the Idaho Code, should this initiative make it onto the ballot and be passed into law. Failure to do so means that, should the initiative pass, codifiers, or perhaps the legislature, may be called upon to put the language of the proposed initiative into a legislative or code format.

The petitioners propose changes to Idaho Code § 67-2347(1). This code section does not appear to be the code section the petitioners meant to cite. The “fine” provision of Idaho Code § 67-2347 is found in subsection 2, not in subsection 1. Therefore, the amendment to Idaho law should be an amendment to Idaho Code § 67-2347(2) and not to Idaho Code § 67-2347(1).

There is a more significant potential problem with the changes proposed to Idaho Code
§ 67-2347, and that has to do with the nature of the penalty proposed. At present, Idaho Code § 67-2347(2) provides for a monetary civil fine of not more than $150 on any member of a governing body who participates in a meeting in violation of the Open Meeting Law. Subsequent violations are penalized in an amount not to exceed $300.

Secretary of State Ysursa
January 13, 2006
Page 3 of 3

Petitioners, through this initiative, are seeking to increase the amount of the penalty. Under the proposed initiative petition, the penalty would be a minimum of $500 for the first violation and $1,000 for any subsequent violation. There is no maximum fine or penalty. These penalties would be against the individual members of the governing body. The potential exists that these provisions might cause a court to construe the penalty provisions of this act to be criminal in nature rather than civil. Enforcement might then be governed by the criminal law, and members of governing bodies accused of violating the provisions of the Open Meeting Law might be entitled to all of the protection afforded them under the state and federal constitutions and rules of criminal procedure. Since the present statute does not state that Open Meeting Law violations are criminal in nature, and since the initiative does not include a maximum penalty, a court potentially could even strike down the very penalty provisions the petitioners are proposing.

The petitioners may wish to review Idaho Code § 34-1801A and use it to draft their petition so that it is substantially in the form prescribed by law. This statute prescribes the form that an initiative petition must substantially follow. The form contains a warning that it is a felony for anyone to knowingly sign the petition more than once or just once if the signor is not a qualified elector. There is a section titled “INITIATIVE PETITION” that includes a demand from the petitioners that their proposed law be submitted to voters at a regular general election and a certification of petitioners’ status as qualified electors. Petitioners have not included these items in their petition.

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