Did the Idaho AG approve the 2007 'Public Employee Accountability Act' ballot initiative that aimed to strip judicial immunity and force grand juries on demand?

Plain-English summary

A petitioner filed a 2007 Idaho ballot initiative titled the "Public Employee Accountability Act" that aimed to overhaul Idaho's accountability framework for public employees, especially judges and prosecutors. The initiative would have done several things at once: redefined "public employee" to include all members of the judicial branch, eliminated absolute judicial and prosecutorial immunity, required a grand jury to be summoned whenever a private party believed a public employee had committed a crime against them and a prosecutor declined to charge, set fifteen-day mandatory impeachment timelines for the legislature, prohibited the legislature from referring grand-jury bills of particulars to the Judicial Council, required the state treasurer to fund grand juries from the general or emergency fund (with criminal penalty for refusal), and gave the legislature authority to amend the Idaho Constitution to preserve the initiative's purposes.

The Attorney General's Certificate of Review concluded that most of the initiative would likely be struck down. The threshold problem was the single-subject rule of Idaho Const. art. III, § 16, which prohibits combining "incongruous and objects totally distinct" within a single act. The initiative's combination of immunity removal, mandatory grand juries, impeachment timelines, and grand jury funding was almost certainly more than one subject. Beyond that umbrella defect, the initiative ran into multiple discrete constitutional problems:

• Grand jury authority. Idaho Const. art. I, § 8 and Idaho Code § 2-501 give district courts the discretionary authority to summon grand juries. Parsons v. Idaho Tax Commission (1986) confirmed that grand-jury access is not a constitutional right. The initiative's mandatory grand-jury-on-demand provision would unconstitutionally displace district court discretion.

• Legislative rules. Idaho Const. art. III, § 9 gives each house the power to determine its own rules of proceeding. Mandating that the legislature begin impeachment within fifteen days, and prohibiting referral to the Judicial Council, would unconstitutionally constrain the legislature's rule-making power (Keenan v. Price (1948)).

• Special sessions. Idaho Const. art. IV, § 9 vests sole discretion to convene extraordinary sessions of the legislature in the governor. Because the legislature is in regular session only from January through roughly March/April, the fifteen-day impeachment mandate would force a special session whenever a bill of particulars came outside that window, effectively requiring the governor to act.

• Funding. The mandatory state funding scheme (general or emergency fund, criminal penalty for the treasurer) raised separate constitutional issues with appropriations and separation of powers.

• Immunity removal. Eliminating absolute judicial immunity, well-settled at common law (Mitchell v. Forsyth (1985)), would face significant constitutional challenges, especially under Idaho's separation-of-powers framework.

• Definitional vagueness. The initiative's broad definition of "malfeasance" (essentially any "act for which there is no authority or warrant of law or which a person ought not to do at all") was so loose it would create confusion about what conduct fell within it.

The Certificate is advisory only; the petitioners could accept or reject any of the recommendations. The AG took no position on the policy.

Currency note

This opinion was issued in 2007. 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

What is absolute judicial immunity?

A common-law doctrine that protects judges (and prosecutors, witnesses, and legislators in their official capacities) from civil suits for actions taken within the scope of their judicial functions. The U.S. Supreme Court in Mitchell v. Forsyth (1985) discussed the contours; the basic rationale is to protect judicial independence from the chilling effect of constant litigation. Eliminating absolute immunity would expose judges to lawsuits for their decisions.

What is the single-subject rule?

Idaho Const. art. III, § 16 says: "Every act shall embrace but one subject and matters properly connected therewith." The Idaho Supreme Court explained in In re Crane (1915) that the purpose is "to prevent combining of incongruous and objects totally distinct." A bill or initiative that combines multiple unrelated subjects is unconstitutional as to anything outside its title or its primary subject.

Why can't the initiative force the legislature to start impeachment proceedings on a deadline?

Two reasons. First, Idaho Const. art. III, § 9 lets each house determine its own rules of proceeding (Keenan v. Price (1948)). Mandating a fifteen-day timeline and forbidding referral to the Judicial Council both override the legislature's rule-making authority. Second, art. V, § 4 says "the house of representatives solely shall have the power of impeachment." Telling the House when and how to exercise that exclusive power runs into separation-of-powers problems.

Why does the governor matter?

Because the Idaho Legislature meets in regular session for only a few months each year. If a bill of particulars arrives outside that window, the only way to begin impeachment proceedings within fifteen days would be to call a special session. Idaho Const. art. IV, § 9 reserves that power exclusively to the governor. Indirectly forcing the governor to act would override that constitutional discretion.

What is "malfeasance" supposed to mean?

The initiative defined it as "an act for which there is no authority or warrant of law or which a person ought not to do at all, or the unjust performance of some act, which party performing it has no right, or has a legal and fiduciary duty not to do." That definition is so broad and vague the AG concluded it would create confusion in practice.

Did this initiative make the ballot?

The Certificate of Review only addresses legal form. Whether the petitioner gathered enough signatures, redrafted the proposal, or abandoned it would need to be confirmed against Idaho election records.

Background and statutory framework

Idaho Code § 34-1809 sends every initiative petition to the Attorney General for advisory legal review. The Certificate covers form, style, and substantive legal problems including any constitutional defects.

Article III, § 16 of the Idaho Constitution states the single-subject rule. Article I, § 8 deals with grand juries. Article III, § 9 reserves rule-making to each house of the legislature. Article IV, § 9 reserves the special-session calling power to the governor. Article V, § 4 vests sole impeachment authority in the House of Representatives.

Idaho Code § 2-501 implements the grand-jury rule by saying grand juries shall not be summoned unless the district judge so directs. Parsons v. Idaho Tax Commission (1986) confirmed there is no constitutional right to grand-jury access; calling a grand jury is discretionary with the court.

Citations

Idaho Constitution: art. I, § 8; art. III, §§ 8, 9, 16; art. IV, § 9; art. V, § 4.

Idaho Code: §§ 2-501, 34-1809.

U.S. Supreme Court: Mitchell v. Forsyth, 472 U.S. 511 (1985).

Idaho cases: In re Crane, 27 Idaho 671, 151 P. 1006 (1915); Parsons v. Idaho Tax Commission, 110 Idaho 572, 716 P.2d 1344 (1986); Keenan v. Price, 68 Idaho 423, 195 P.2d 662 (1948).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C021307.pdf

Original opinion text

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

February 13, 2007

The Honorable Ben Ysursa
Idaho Secretary of State
HAND DELIVERED

Re: Certificate of Review
Initiative Regarding The Public Employee Accountability Act

Dear Secretary of State Ysursa:

An initiative petition was filed with your office on January 12, 2007, and received by this office on January 16, 2007. Pursuant to Idaho Code § 34-1809, this office has reviewed the initiative petition and has 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 initiative 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," and the petitioners are free to "accept or reject them in whole or in part."

MATTERS OF SUBSTANTIVE IMPORT

Introduction

Entitled the "Public Employee Accountability Act," the initiative petition ("Initiative") seeks to significantly modify current Idaho law in several ways. Petitioners have presented an Initiative that seeks to eliminate absolute judicial immunity (and would appear to also abolish absolute legislative and prosecutorial immunity), provides for a grand jury to inquire into a prosecutor's decision not to charge a crime upon a party's request, and directs the legislature on the issue of impeachment. Specifically, the petitioners seek the following:

• Add a definition of "malfeasance" to the Idaho Tort Claims Act;
• Define "Public Employee" to include "all members of the judicial branch of government";
• Delete absolute immunity for all public employees, including the judicial branch;
• Require a grand jury to be called and convened if any party believes a public employee engaged in a judicial or quasi-judicial proceeding has committed a crime against him/her if a prosecutor has declined to charge the public employee;
• Toll the statute of limitation until fourteen (14) days after the grand jury renders a finding;
• Provide the grand jury with broad powers including investigating new criminal allegations and directing police inquiry;
• Require that a bill of particulars be submitted to the state legislature which must initiate impeachment proceeding with fifteen days if a public official who is subject to impeachment is found in violation of the law;
• Prohibit the legislature from referring a grand jury's bill of particulars regarding an impeachable officer to Judicial Council;
• If extraordinary funding for the grand jury is needed, the state treasurer must take funds from either the general fund or an emergency fund and allocate them to the county treasurer where the grand jury is seated;
• Direct the Idaho Legislature to amend the Initiative to preserve the intent and principles of the Initiative if any portion of the Initiative is ruled unconstitutional; and
• Grant to the state legislature the authority to amend the Idaho constitution to achieve the intent and principles of this act.

Most of the provisions of this measure would likely be struck down by a reviewing court as unconstitutional. In addition, the definition of "malfeasance" included in the Initiative is problematic.

Proposed Initiative Likely Violates Article III, § 16, Prohibiting Consideration of More than a Single Subject

Article III, § 16 states:

UNITY OF SUBJECT AND TITLE. Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.

In re Crane, 27 Idaho 671, 689, 151 P. 1006 (1915), states "the purpose of the clause . . . is to prevent combining of incongruous and objects totally distinct . . . ." The Initiative addresses removing absolute immunity of public employees, summoning a grand jury, directing impeachment proceedings in the legislature, and funding grand jury proceedings. It appears likely that the breadth of the subjects, which should be set forth in distinct enactments (or Initiatives), would provide a basis for this Initiative being found unconstitutional.

Proposed Initiative Likely Violates Article I, § 8 Giving the District Court Sole Discretion to Impanel a Grand Jury

Idaho Constitution, Art. I, § 8 provides in part that "a grand jury may be summoned upon the order of the district court in the manner provided by law . . .", while Idaho Code § 2-501 provides that "grand juries shall not be summoned unless the district judge so directs."

The Initiative directs a grand jury to be impaneled at the request of a party who believes a "public employee" has committed a crime against him. The Idaho Supreme Court in Parsons v. Idaho Tax Commission, 110 Idaho 572, 716 P.2d 1344 (1986), determined that access to a grand jury is not a constitutionally protected common law right and that a district court has discretionary authority not to call a grand jury.

The Initiative provides an aggrieved party may request a grand jury; it appears that upon receiving a request, a district court could take no action but to summon the grand jury. Displacing the district court's constitutional authority to summon a grand jury would likely violate this constitutional provision.

Proposed Initiative Likely Violates Article III, § 9 Which Gives a Legislative House the Sole Power to Make Its Own Rules of Proceedings

In the Initiative, once the legislature receives a bill of particulars from the jury foreman, it is required to initiate impeachment proceedings within fifteen (15) days. Article V, § 4, provides that "[t]he house of representatives solely shall have the power of impeachment." The Initiative further prohibits the legislature "from referring the matter to the Judicial Council."

Section 9 of Article III of the Idaho Constitution, gives each house the power to determine its own rules of proceeding. As stated by Keenan v. Price, 68 Idaho 423, 437, 195 P.2d 662 (1948) "[t]he power of the legislative houses to make their own rules is for orderly procedure and the expedition and disposition of their business." To mandate the legislature begin impeachment proceedings in a time certain and to prohibit referral to another body would prevent the legislature from making rules for its orderly procedure.

Proposed Initiative Likely Violates Article IV, § 9, Providing the Governor Sole Discretion to Convene Extraordinary Sessions of the Legislative as well as Separation of Powers When an Extraordinary Session is Called for Impeachment

The Initiative requires the legislature to initiate impeachment proceedings within fifteen (15) days after receipt of a bill of particulars from the jury foreman. The Idaho Legislature is only in session beginning the second Monday of January (Article III, § 8) and ending usually in March or April. If a bill of particulars is presented outside this time frame, the legislature would have to be called back into session to consider the bill within fifteen (15) days.

The authority to call an extra session of the legislature rests solely in the governor's discretion under Idaho Constitution Article IV, § 9 ("governor may, on extraordinary occasions, convene the legislature by proclamation, stating the purposes for which he has convened it"). Although the Initiative doesn't clearly direct the governor to act, if the impeachment proceedings were required when the legislature was not in session, the governor would be required to act because there is no other mechanism for calling a special session. Requiring the governor to convene the legislature to begin impeachment proceedings likely violates the discretionary power of a governor.

Proposed Initiative Section Concerning Funding Likely Violates Several Constitutional Provisions

The Initiative requires the state to fund a grand jury if extraordinary funds are needed. The foreman of a grand jury would submit a request for state funds to the Attorney General who in turn would notify the State Treasurer. The State Treasurer is required, upon threat of being charged with a misdemeanor, to take funds either from general fund or an emergency fund.