Could one Idaho initiative change both eminent-domain law and the rules for regulatory takings?

Plain-English summary

This is the AG's statutory review (Idaho Code § 34-1809) of a ballot initiative filed February 28, 2006, by Laird Maxwell, proposing to amend Idaho's eminent domain statutes (Idaho Code §§ 7-701 and 7-701A) and Idaho regulatory-takings statutes (§§ 67-8002 and 67-8003).

The certificate raised four sets of issues:

Drafting form (Art. III, § 18). The proposal needed to reproduce the full text of amended sections (§§ 7-701, 7-701A, 67-8002, and 67-8003) with strikeouts for deletions and underscoring for additions. After consultation, the petitioner provided a marked-up draft, and the AG recommended using that draft for circulation.

Single-subject question (Art. III, § 16). The proposal addressed both eminent domain (Title 7, Chapter 7) and regulatory takings (Title 67, Chapter 80). The AG noted these are arguably two separate subjects (eminent domain is a complete taking; regulatory takings are partial), but a court could classify both as "takings of property" and so directly or indirectly connected. The AG could not predict whether a court would permit the linkage.

Conflict with House Bill 555. The review said recently signed House Bill 555 created a new Idaho Code § 7-701A, effective July 1, 2006. The initiative also proposed a § 7-701A. If enacted, the provisions would need reconciliation, likely by the Idaho Code Commission. The proposal also appeared to repeat some of House Bill 555's language in § 7-701(12); the certificate noted that a later enacted statute generally controls where reconciliation is needed.

Ambiguity in § 67-8003(6)(c). The proposed exemption for land-use laws "enacted prior to the effective date" did not explain what happens when an earlier law is amended. The certificate asked whether the whole law or only its amendment would be covered and said this ambiguity had a strong likelihood of producing significant litigation.

The certificate also said initiative legislation stands on equal footing with legislation passed by the legislature and that, apart from the constitutional questions it discussed, the proposal addressed topics within the initiative power.

What this means for you

If you are drafting an initiative: The certificate recommends printing the complete text of sections to be amended and using the underlined draft supplied after consultation. It also calls attention to House Bill 555's new § 7-701A and asks for a clearer rule about amendments to older land-use laws.

If you are evaluating the proposal: The Attorney General did not decide whether eminent domain and regulatory takings met the one-subject requirement. The review says a court could find the subjects connected but that its office could not predict a challenge's outcome.

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 certificate describes a 2006 proposal and House Bill 555 as understood at the time. Check present statutes before relying on the section numbers or effective dates it discusses.

Common questions

Q: Did this initiative make the ballot?
A: The certificate reviews the proposal and says a copy of its advisory comments was sent to petitioner Laird Maxwell. It does not report whether the measure later qualified for the ballot.

Q: Why did the Attorney General ask for the full text of amended sections? A: Idaho Constitution art. III, § 18 bars amendment by mere reference to a section's title. The certificate recommended printing the complete amended sections and marking additions and deletions so petition signers could see the proposed changes.

Q: What is the difference between eminent domain and regulatory takings? A: The certificate describes eminent domain as a complete taking for public use and quotes Idaho's regulatory-takings definition as an administrative or regulatory action causing a total or partial, permanent or temporary deprivation of private property in violation of a constitution. It treated the relationship between these topics as an open one-subject question for the initiative.

Q: Why did the AG flag the conflict with House Bill 555? A: Both House Bill 555 and the initiative proposed a § 7-701A. The certificate said the provisions would need reconciliation, likely by the Idaho Code Commission, and noted that a statute enacted later generally controls. It did not prescribe a particular renumbering.

Q: Why is the "enacted prior to" exemption ambiguous? A: The certificate asks what happens if a land-use law predating the initiative is later amended: does the new rule apply to the entire law or only the amendment? It says the proposal lacks parameters for answering that question and warns of significant litigation over the exemption's boundaries.

Q: What does "equal footing" mean for initiative legislation? A: It means a statute passed by initiative has the same legal force as a statute passed by the Legislature. The initiative power, granted by Idaho Const. art. III, § 1, is the people's reserved share of legislative power. Initiative legislation is subject to the same constitutional constraints (single subject, full-text amendment, etc.) as legislation passed bicamerally (Luker v. Curtis, 64 Idaho 703 (1943); Simpson v. Cenarrusa, 130 Idaho 609 (1997)).

Background and statutory framework

The certificate says Idaho Code Title 7, Chapter 7 addresses eminent domain and Title 67, Chapter 80 addresses regulatory takings. It cites Idaho Constitution art. I, § 14 on taking private property for public use, Idaho Code § 7-704 on necessity, and § 67-8002(4)'s definition of regulatory taking.

The initiative was submitted on February 28, 2006. The Attorney General's comments were advisory and addressed form and possible legal problems with that proposal.

Citations and references

Statutes and constitutional provisions:

• Idaho Code §§ 7-701, 7-701A, 7-704
• Idaho Code § 34-1809 (AG initiative review)
• Idaho Code §§ 67-8002, 67-8003 (regulatory takings)
• Idaho Const. art. I, § 14 (eminent domain)
• Idaho Const. art. III, §§ 1 (initiative), 16 (single subject), 18 (full-text amendment)

Cases:

• Blackwell Lumber Co. v. Empire Mill Co., 28 Idaho 556 (1916)
• Golconda Lead Mines v. Neill, 82 Idaho 96 (1960)
• Luker v. Curtis, 64 Idaho 703 (1943)
• State v. Finch, 79 Idaho 275 (1957)
• Simpson v. Cenarrusa, 130 Idaho 609 (1997)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C032806.pdf

Original opinion text

STATE OF IDAHO
OFFICE OFTHE ATTORNEY GENERAL
LAWRENCE G WASDEN

March 28, 2006

The Honorable Ben Ysursa
ldaho Secretary of State
STATEHOUSE

Re: Certificate of Review
Proposed Initiative Relatina to Eminent Domain & Reaulatow Takinas

Dear Secretary of State Ysursa:

An initiative petition was submitted to your office on February 28, 2006 Pursuant to ldaho 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 following 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 TITLE

Following the filing of the proposed initiative, this office will prepare short and long ballot titles The ballot titles must 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 titles, if petitioners would like to propose language with these standards in mind, they are encouraged to do so Any proposed language will be considered carefully

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Secretary of State Ysursa
March 28,2006
Page 2 of 4

MATTERS OF SUBSTANTIVE IMPORT

The submitted initiative seeks to amend ldaho Code §§ 7-701, 7-701A, 67-8002, and 67-8003 Chapter 7 of Title 7 of the ldaho Code addresses Eminent Domain Chapter 80 of Title 67 addresses Regulatory Takings,

Amendments Should Be Printed In Full

Article Ill, Section 18 of the ldaho Constitution prohibits any act from being "revised or amended by mere reference to its title, but the section as amended shall be set forth and published at full length" See Golconda Lead Mines v. Neill, 82 ldaho 96, 99-101, 350 P,,2d 221, 222-23 (1960) We, therefore, recommend that the full text of ldaho Code 3s 7-701, 7-701A, 67-8002, and 67-8003 be reproduced in the proposed initiative, with amendments indicated appropriately by underscoring for additions and strikeouts for deletions These underscoring and strikeouts, while not required constitutionally, may facilitate informed decision-making with respect to whether to sign the petition, After consultation with the petitioner, a draft containing the underlining was provided to this office It is recommended that the underlined draft be used for circulation and collection of signatures in order to facilitate informed decision-making,

Unitv of Subiect,,

Article Ill, Section 16 of the ldaho Constitution provides in part that "[elvery act shall embrace but one subject and matters properly connected therewith " The ldaho Supreme Court has held that "if the provisions of an act all relate directly or indirectly to the same subject, having a natural connection therewith, and are not foreign to the subject expressed in the title, they may be united in one act" Boise Citv v. Baxter, 41 ldaho 368, 376, 238 P 1029, 1032 (1925); Accord Cole v. Fruitland Canninq Ass'n, 64 ldaho 505, 511, 134 P 2d 603, 605 (1945) Inherent in this requirement is the need for the statute to "disclose, either by express declaration or by clear intendment, or at least portend the common object in order that it may be determined whether all parts are congruous and mutually supporting, and reasonably designed to accomplish the common aim " AFL v. Lanclley, 66 ldaho 763,768, 168 P 2d 831,833 (1946)

A question may be raised as to whether Eminent Domain and Regulatory Takings are rationally related to one another Article 1, § 14 of the ldaho Constitution provides that private property may be taken for a public use This section of the ldaho Constitution is self-executing, leaving to the legislature only the task of providing the procedure for implementation Blackwell Lumber Co. v. Empire Mill Co, 28 ldaho 556, 568, 155 P 680, 684 (1916) ldaho Code fj 7-704 requires that any taking for a public use be necessary Regulatory Takings are defined by ldaho Code § 67-8002(4), which "means a regulatory or administrative action resulting in deprivation of private property that is the subject of such action, whether such deprivation is total or partial, permanent or temporary, in violation of the state or federal constitution " These topics could arguably

Secretary of State Ysursa
March 28,2006
Page 3 of 4

be connected to one another by classifying both as takings of property-Eminent Domain is a complete taking, while Regulatory Takings are a partial taking of property,,

A court could find that these issues are either directly or indirectly connected to one another This office cannot predict, with certainty, whether a court would permit these topics to be linked in a challenge or whether this presents a constitutional technicality,,

Initiated Leqislation And Bicameral Leqislation Share "Equal Footinq."

It is settled that the "power of legislation, reclaimed by the people through the medium of [Article Ill, Section I], did not give any more force or effect to initiative legislation than
to legislative acts but placed them on an equal footing " Luker v. Curtis, 64 ldaho 703, 706, 36 P 2d 978, 979 (1943); Accord State v. Finch, 79 ldaho 275, 280, 315 P 2d 529, 530 (1957) Consequently, the constitutionality of a voter-approved initiative is determined "by the same standards as if the legislature had enacted i t " Simpson v. Cenarrusa, 130 ldaho 609,611,944 P 2d 1372,1374 (1997)

The Initiative Mav Require Reconciliation With Laws Takinq Effect July 1. 2006

The initiative as proposed makes amendments to ldaho statutes Since statutes can be amended by initiative, this initiative appears to address topics well within the province of the initiative power Other than the constitutional issues presented above, there are a couple of minor points to consider with the proposed initiative:

I H 555 Creates a New Section
Recently, House Bill 555 ("H555") was signed into law, creating a new ldaho Code § 7-701A, which will go into effect on July I,2006 The proposed initiative also creates a new ldaho Code § 7-701A These provisions will have to be reconciled in some way, likely by the ldaho Code Commission Additionally, the initiative appears to have used some of the same language as that used in H555 in its proposed ldaho Code 3 7-701(12) If this initiative is enacted, these provisions will also likely need to be reconciled with one another, keeping in mind that the statute enacted later in time generally controls

2 Confusion May Result
Within the proposed ldaho Code § 67-8003(6)(c), the initiative proposes to exempt land use law regulations that were enacted prior to the effective date of the law from its application This could create confusion because no parameters defining what is meant by "enacted prior to the effective date" have been set forth For example, if a land use law is amended, does the entire law become applicable or just the amendment? Would this result in a measuring by the court of the substantiveness of the amendment for applicability of this section? This has a strong likelihood of

Secretary of State Ysursa
March 28,2006
Page 4 of 4

resulting in a significant amount of litigation to fully define the boundaries of this proposed statute Although this is a policy question for the voters, it has significant legal ramifications that warrant its mention

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 Laird Maxwell 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