Did the Idaho AG flag legal problems with the Reclaim Idaho 'Quality Education Act' initiative that would have raised income taxes on high earners and corporations to fund K-12 schools?
Subject
The Idaho AG's advisory Certificate of Review under Idaho Code § 34-1809 of the Reclaim Idaho-affiliated August 2019 citizen initiative that proposed to amend Idaho Code title 63 (Tax) and add a new section to title 33 (Education) to raise the individual and corporate income tax rates and direct the resulting additional revenue to a new "Quality Education Fund."
Currency note
This opinion was issued in 2019. 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.
Plain-English summary
In August 2019, an organization affiliated with Reclaim Idaho (the same group behind the 2018 Medicaid expansion initiative) filed an initiative to fund K-12 schools through a tax increase on the wealthiest individuals and on corporations. AG Lawrence Wasden's Certificate of Review under Idaho Code § 34-1809 was issued September 24, 2019.
The proposal had four substantive components:
- New top individual income tax bracket. Splits the existing "$7,500 and over" bracket so the top 6.925% rate would apply to "$7,500 but less than $250,000," and adds a new bracket for "$250,000 and over" taxed at 9.925%.
- Higher corporate rate. Raises the corporate income tax rate from 6.925% to 8%.
- New "Quality Education Fund." Created in Title 33, continuously appropriated, expended by the State Board of Education to reduce class sizes, provide classroom materials, fund career-tech / full-day kindergarten / arts / music / drama / special education, and "attract and retain" teachers (with explicit exclusion of administrator salaries). Money distributed to school districts and charter schools by average daily attendance, similar to § 33-905(2).
- Supplement-not-replace clause. The Quality Education Fund "shall augment and not replace" general account appropriations.
The AG flagged six categories of legal concern.
Single-subject rule risk (Idaho Const. art. III, § 16). The proposal combines two distinct policies: an income tax increase and a new education fund. Under Cheney v. Smith, 108 Idaho 209 (Ct. App. 1985), an initiative can make several changes only if they all relate to the same "general subject" and are "germane" and "not incongruous." The AG noted the connection between the tax increase and the education fund (the increase funds the fund) but warned the connection might not be substantial enough to survive court challenge. He cited Idaho Watersheds Project v. State Board of Land Commissioners, 133 Idaho 55 (1999), striking down a constitutional amendment for combining two land-endowment adjustments under a similar single-subject rule.
Tax-bracket drafting deviations. The "$7,500 but less than $250,000" rate column included the phrase "but less than $250,000," inconsistent with how other brackets are written. More seriously, the new top bracket failed to include a "base amount of tax" reflecting Idaho's progressive rate structure. Without that base amount, the bracket cannot be applied accurately. The AG noted that a Reclaim Idaho contact had told the office the omission was an oversight.
Fundamental distribution formula error. This was the AG's biggest concern. The proposal said "an amount equal to three percent (3%) of taxable income" goes to the Quality Education Fund. But "taxable income" under Idaho Code § 63-3011B is federal taxable income, not tax revenue collected. The amount of tax collected from the new bracket is determined by applying the tax rate to taxable income and then subtracting credits (Idaho Code § 63-3029P). The 3%-of-taxable-income formula produces a different number than the 3-percentage-point rate increase actually generates. The AG noted the petition's stated intent was to send the rate-increase proceeds to the fund, and recommended re-drafting to align mechanism with intent.
Structural placement. The proposed amendment to § 63-3067 should be inserted after the existing exception (lottery-winnings withholding distribution), not as a third item.
Overlap with existing education statutes. Several proposed-fund purposes overlap with existing statutes: § 33-1004(g) on class size; § 33-512(3) on textbooks; §§ 33-1635 and 33-1002G on career technical education; § 33-2001 et seq. on special education; §§ 33-1004A-1004J on teacher compensation. The proposal does not address how the new fund interacts with these. Implementation could become messy.
Supplement-not-replace clause may be unenforceable. Idaho appropriations are made annually under § 33-1001 et seq. as separate acts. The proposal's text gives no year-to-year comparison framework for determining whether the new fund is supplementing or replacing. A court asked to enforce the clause would have difficulty deciding what counts as replacement, especially because each year's appropriation is "not necessarily related to the appropriation made the year before." The AG suggested the clause might be satisfied trivially if the legislature continued any appropriation from the general account.
The AG also gave detailed copy-edit recommendations on Oxford commas, semicolon use, redundant references to "franchises," scrivener's errors duplicating text from existing § 63-3067(3), and inconsistent phrasing of distribution percentages.
Common questions
Q: What was the Quality Education Act?
A 2019 Reclaim Idaho-affiliated initiative that would have raised the individual income tax rate to 9.925% on income over $250,000 and the corporate rate from 6.925% to 8%, dedicating the additional revenue to a new continuously appropriated K-12 education fund.
Q: Did the Quality Education Act make the ballot?
The Certificate of Review is one step in the process. Reclaim Idaho's Quality Education Act campaign continued, but the COVID-19 pandemic disrupted signature gathering in 2020. A modified version was the subject of subsequent AG review and litigation. This particular August 2019 version, with the legal concerns identified here, would have needed substantial redrafting.
Q: Why is the "single-subject rule" a concern?
Idaho Const. art. III, § 16 says "every act shall embrace but one subject." The rule is meant to prevent legislators (or initiative drafters) from combining two unpopular ideas with one popular one. Cheney v. Smith says an initiative can do multiple things if they all relate to one "general subject." Here, raising tax rates and creating an education fund are arguably two different subjects, but the connection (the new revenue funds the fund) might satisfy the test. It would depend on how a court applied the standard.
Q: What's the issue with using "taxable income" as the distribution base?
"Taxable income" is the figure on a taxpayer's federal-conforming return before Idaho-specific adjustments (§ 63-3011C) and credits (§ 63-3029P). Tax revenue collected by the state is the figure after all those adjustments. Multiplying a percentage against "taxable income" does not yield "tax revenue." If the petition's intent was to deliver the increased tax revenue to the fund, using "taxable income" as the base produces a different number than what the rate increase actually generates.
Background and statutory framework
Idaho Code § 34-1809 requires the AG to issue an advisory Certificate of Review of every filed initiative within 20 working days. The Certificate is not binding; petitioners can revise or proceed with the original text.
Idaho's progressive income tax lives in § 63-3024 (individuals) and § 63-3025 (corporations). The structure depends on each bracket containing both a rate and a "base tax" reflecting cumulative tax from lower brackets.
Idaho Code § 63-3067 controls how income tax revenue is distributed (mostly to the General Fund, with carve-outs for lottery-winnings withholdings and refund-account adjustments).
The "Quality Education Fund" framework modeled on § 33-905(2) (School District Building Account) would have used average-daily-attendance as the distribution metric.
Citations
- Idaho Const. art. III, § 16 (single-subject rule)
- Idaho Code § 34-1809 (Certificate of Review)
- Idaho Code §§ 63-3024, 63-3025, 63-3025A, 63-3011B, 63-3011C, 63-3029P, 63-3067 (Tax Code)
- Idaho Code §§ 33-512(3), 33-905(2), 33-1001 et seq., 33-1004(g), 33-1004A through 33-1004J, 33-1635, 33-2001 et seq. (Education Code)
- Cheney v. Smith, 108 Idaho 209 (Ct. App. 1985)
- Idaho Watersheds Project v. State Bd. of Land Comm'rs, 133 Idaho 55 (1999)
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2019/11/Certificate_09242019.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
September 24 , 2019
The Honorable Lawerence Denney
Idaho Secretary of State
Statehouse
VIA HAND DELIVERY
Re:
Certificate of Review
Proposed Initiative Relating to Increasing the Individual Income Tax
Dear Secretary of State Denney:
An initiative petition was filed with your office on August 30 , 2019 . Pursuant to
Idaho Code section 34-1809, this office has reviewed the petition and prepared the
following advisory comments. Given the strict statutory timeframe within which this office
must review the petition, our 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." Th is office offers no opinion with regard
to the policy issues raised by the proposed initiative. The opinions expressed in this
review are limited to those potentially affecting the legality of the 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 our office prepares titles for the initiative, petitioners may submit
proposed titles for consideration . Any proposed titles should be consistent with the
standard set forth above.
P.O. Box 83720, Boi se, Idaho 83720-001O
Telephone: (208) 334-2400, FAX: (208) 854-8071
Located at 700 W. Jefferso n Street, Suite 21O
Secretary of State Denney
September 24, 2019
Page 2
MATTERS OF SUBSTANTIVE IMPORT
I.
Summary of the Proposed Initiative
The proposed initiative presents amendments to code sections found in Idaho
Code, title 63 (hereinafter "Tax Code") and proposes a new section to be added to Idaho
Code, title 33 (hereinafter "Education Code"). The amendments to the Tax Code would
increase the individual income tax rate on amounts earned in excess of $250,000 a year
and increase the tax rate on the income earned by corporations. The proposed new
section of the Education Code, along with a further amendment to the Tax Code, creates
and appropriates money to a new "quality education fund." The money for this fund is to
come from tax revenue the state receives as a result of the increased tax rates. Each
section of the initiative will be described in turn.
A.
Section One of the Initiative Proposes an Amendment to Idaho's
Individual Income Tax Rate.
Section one of the initiative proposes an amendment to Idaho Code section 633024, the section of Idaho Code which defines the individual income tax rates. As it
currently exists, the code section lists seven tax brackets ranging from "Less than $1,000"
to "$7,500 and over." Idaho Code§ 63-3024(a). For each of these seven brackets, there
is an associated tax rate ranging from 1.125% to 6.925%. Id.
The initiative proposes two modifications to the tax brackets: first modifying the
seventh tax bracket (the "$7,500 and over" bracket) and second adding an eighth tax
bracket. The modification to the seventh tax bracket changes it from "$7,500 and over"
to "$7,500 but less than $250,000." The proposal does not change the tax rate (6.925%)
for the seventh bracket. The proposed eighth tax bracket would be for taxable income
"$250,000 and over." The initiative would set the tax rate on taxable income in this bracket
at 9.925%.
Section one also contains an amendment to Idaho Code section 63-3024(a) for
adjusting this new eighth bracket for inflation. This adjustment mirrors the language
already in statute for adjusting the other seven brackets for inflation; however, it differs in
what base year is used for the adjustment. Where the other seven brackets are adjusted
using a base year of 1998, the initiative specifies that the base year for the eighth bracket
is 2022.
B.
Section Two of the Initiative Proposes an Amendment to Idaho's
Corporate Income Tax Rate.
The second section of the initiative seeks to increase Idaho's corporate income tax
rate. Presently Idaho Code section 63-3025(1) establishes a tax rate on corporate
income of 6.925%. The initiative proposes amending this rate to 8%.
Secretary of State Denney
September 24, 2019
Page 3
C.
Section Three of the Initiative Proposes an Amendment to How Income
Tax Revenue is Distributed and Appropriates Tax Revenue to the
Quality Education Fund.
The third section of the initiative proposes an amendment to Idaho Code section
63-3067(2). This code section states how tax revenue received by the state is to be
distributed by the Idaho State Tax Commission. As it presently stands, all money-except
for revenue received from the withholding of lottery winnings-"received by the state ...
shall be deposited ... and become part of the general account [fund] under the custody
of the state treasurer." Idaho Code § 63-3067. Revenue received from the withholding
of lottery winnings is to be distributed such that half is deposited in the "public school
income fund" and the other half is use for "county juvenile probation services."
Section three proposes to amend this section by adding a second exception for
distributing received revenue. The amendment proposes that the additional revenue
received as a result of increasing the individual income tax rate and corporate income tax
rate should not be distributed to the general account but should be distributed to a new
fund: the Quality Education Fund.
D.
Section Four of the Initiative Proposes the Creation of a New "Quality
Education Fund."
The fourth section of the initiative proposes that a brand new section be added to
the Education Code.
This section, titled "Quality Education Fund-RulemakingDefinitions," proposes the creation of a new continuously appropriated fund that is to be
"expended by" the State Board of Education. Money for this fund is to come from
"legislative transfers or appropriations, from the sales tax account, from the state income
tax and from any other governmental or private sources."
The purpose of the fund is to allow the state to "invest in betterment of public
schools in Idaho." It proposes to achieve this goal by allowing the State Board of
Education to use the money in the Quality Education Fund to:
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Reduce class sizes;
Prevent class size increases;
Provide current and adequate classroom materials, such as textbooks and
supplies;
Provide career technical education;
Provide full day kindergarten;
Provide art programs;
Provide music programs;
Provide drama programs; and
Provide special education services.
Secretary of State Denney
September 24, 2019
Page 4
In addition to these specifically enumerated actions, the State Board of Education is also
given the open-ended instruction of "including, attracting and retaining highly qualified
teachers." The State Board of Education is to achieve this goal by taking actions
"including but not limited to . . . providing competitive salaries, offering continuing
education opportunities, and providing support for new educators." The money in the
fund expressly may not be used to "pay superintendents', principals' or other
administrators' salaries or other compensation."
The money in the Quality Education Fund is to be distributed in a manner similar
to the distribution of money held in the School District Building Account. See Idaho Code
§ 33-905(2). The money in the Quality Education Fund is to be distributed from the fund
to school districts and public charter schools "not later than August 31." The money is
distributed to each school district and public charter school in proportion to their average
daily attendance of the district (or charter school) as compared to the total average daily
state-wide attendance. The distribution section also contains a special provision for
schools of the deaf and the blind. For the purpose of distribution, such schools are treated
as if each were a separate school district.
The Quality Education Fund is intended as a supplement to-and not a
replacement of-the typical "K-12 public school support." The money in the fund is meant
to "augment" the "state's general account appropriation."
Finally, the State Board of Education is tasked with "promulgat[ing] rules to
implement the provisions of this section."
E.
Section Five of the Initiative is a Severability Clause.
The fifth section of the initiative states that the provisions of the initiative are
"severable ... if any provision of [the] initiative ... is ... invalid."
F.
Section Six of the Initiative States the Effective Date.
The sixth section of the initiative states that the initiative's effective date is January
1, 2021.
II.
Substantive Analysis
A.
There is a Risk that the Initiative Violates the Single-Subject Rule of
the Idaho Constitution.
Because the initiative seeks to both raise income tax rates and create a new fund
to promote education in Idaho, there is a risk that the initiative violates the single-subject
rule set forth in article Ill, section 16 of Idaho Constitution. That section states:
Secretary of State Denney
September 24, 2019
Page 5
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.
Idaho Const. art. Ill,§ 16. The Idaho Court of Appeals, in interpreting this provision, has
found that a bill (or initiative) may make several changes to law so long as each of the
changes relate back to the same "general subject." In particular, so long as all of the
portions of the initiative "fall[] within [the] subject" and "are germane to" and "not
incongruous with" the subject, then the initiative does not violate the single-subject rule.
Cheney v. Smith, 108 Idaho 209,210,697 P.2d 1223, 1224 (Ct. App. 1985).
For the present initiative, there is nothing particularly incongruous about an income
tax rate increase and a new fund for promoting education being put forth in the same
initiative. However, these two policies are also not obviously germane to one another.
The proposed initiative does connect the two policy changes by specifying that any
additional revenue received from the income tax rate increases be used for the promotion
of education in Idaho. However, there is a risk that this connection is not substantial
enough for the initiative to survive if it is challenged in court on the single-subject rule.
See, e.g., Idaho Watersheds Project v. State Bd. of Land Comm'rs, 133 Idaho 55, 60,
982 P.2d 358, 363 (1999) (Finding that a constitutional amendment that made two
adjustments related to school endowment land violated a similar single-subject rule
controlling constitutional amendments).
B.
The Initiative Deviates from the Present Statutory Definitions of the
Tax Brackets.
The initiative deviates in two ways from how the legislature has previously defined
the tax brackets. First, the rate column for the seventh tax bracket ("$7,500 but less than
$250,000"), defines the rate as 6.925% of "the amount over $7,500 but less than
$250,000." This phrase in the rate column-in particular the portion that reads "but less
than $250,000"-does not appear in any of the other brackets in the statute. Instead, the
other tax brackets have some variation of the following phrase: the rate applies to "the
amount over $5,000." Putting the phrase "but less than $250,000" into the rate column
does not appear to substantively change the provision, but it is inconsistent with the
statutory language for the other brackets.
Second, in the rate column for the proposed eighth bracket ("$250,000 and over"),
the initiative has failed to include the base amount of tax due from taxpayers with income
of over $250,000. Idaho's tax rate is progressive, this meaning that the first $999 earned
by every taxpayer is taxed according to the first tax bracket's ("Less than $1,000") rate of
1.125%, the second $1,000 is taxed according to the second tax bracket's ("$1,000 but
Secretary of State Denney
September 24, 2019
Page 6
less than $2,000") rate of 3.125%, the third $1,000 earned is taxed according to the third
tax bracket's ($3,000 but less than $4,000) rate of 4.625%, and so forth. All of the other
brackets include a base amount of tax in the starting point reflecting this progressive tax
adjustment and the inclusion of this figure is critical for accurately determining tax due.
An individual associated with Reclaim Idaho, an organization interested in the drafting of
this initiative, has indicated that the exclusion of the base tax was an oversight.
C.
The Initiative Deviates from How Other Tax Revenue Is Distributed by
Basing its Distribution on "Taxable Income."
The initiative's proposed amendment to Idaho Code's income tax distribution
section, section 63-3067, states that "an amount equal to three percent (3%) of taxable
income" will be distributed to the Quality Education Fund. The use of the phrase "taxable
income" to make this distribution diverges from the other methods of distributing income
tax described in Idaho Code section 63-3067. Specifically, the other methods for
distributing income tax revenue rely on the amount of tax revenue the state has collected
as the base for distribution. The initiative diverges from this scheme because the base it
has selected, "taxable income," is not the same as the amount of income tax revenue the
state has collected. Instead, "taxable income" is only an amount reported on a taxpayer's
tax return as a part of the process of determining tax liability-it does not reflect the
amount of tax paid by a taxpayer to the State of Idaho.
The phrase "taxable income" is defined as "federal taxable income as determined
under the Internal Revenue Code." Idaho Code § 63-3011 B. Multiplying a tax rate
against this figure would not yield the amount of tax a taxpayer actually pays to the state.
Two categories of adjustments must be made to determine how much tax a taxpayer must
pay. First, after that amount of taxable income is ascertained, a taxpayer is permitted to
make state-specific adjustments to their "taxable income" to reach a figure known as
"Idaho taxable income." Idaho Code§ 63-3011C. Second, after Idaho taxable income is
determined and the appropriate tax rates are applied, a taxpayer may be entitled to credits
that will directly reduce their tax liability. See Idaho Code § 63-3029P. Both types of
adjustment will lead to a substantially different amount of income tax owed than had the
taxpayer multiplied the tax rates against his or her taxable income. In short, the phrase
taxable income cannot stand in as measure for income tax revenue collected.
Similarly, for the distribution of corporate income tax, the initiative proposes using
"taxable corporate or franchise income" as the base for determining how much corporate
income tax revenue is to be distributed to the Quality Education Fund. This phrase is not
a defined phrase in the Tax Code, however, its use produces the same problem as the
use of the phrase "taxable income." The phrase taxable income cannot be used as a
corollary for income tax revenue collected.
Secretary of State Denney
September 24, 2019
Page 7
It appears that the intent of the initiative is to only distribute the increase of tax
revenue attributable to the proposed rate increases. The initiative states "that the
amounts collected" as a result of the rate increase "shall be remitted to the quality
education fund." To accomplish this goal more directly, the initiative should not use
taxable income as the base for determining how much of the income tax revenue should
be distributed.
D.
The Initiative Does Not Match the Structure of Idaho Code Section 633067.
In its current form, the structure of Idaho Code section 63-3067 follows this pattern:
(1) the exception to the general distribution of income tax revenue and (2) the general
distribution of the remaining portion of income tax revenue. In its proposed amendment
to Idaho Code section 63-3067, the initiative proposes to add a further exception to the
general distribution of income tax revenue. In doing so it proposes changing the structure
of Idaho Code section 63-3067 to (1) an exception to the general distribution, (2) the
general distribution of the remaining portion, and (3) another exception to the general
distribution. The initiative would better match the current statutory structure if it were to
list its proposed exception to the general distribution of income tax revenue immediately
following the first exception to the distribution of the revenue.
E.
The Initiative Overlaps with Other Education Statutes.
Some of what the initiative seeks to accomplish overlaps with statutes that already
exist. Specifically, Idaho Code has provisions addressing the following:
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Managing class size, Idaho Code§ 33-1004(g);
Providing suitable classroom materials, such as textbooks and supplies,
Idaho Code§ 33-512(3);
Providing career technical education, Idaho Code § 33-1635 and § 331002G;
Providing special education services, Idaho Code§ 33-2001, et. seq.; and
Compensating teachers, Idaho Code§§ 33-1004A- 1004J.
Apart from stating that the Quality Education Fund is intended to be a supplementary
source of funding for the state's education system, the initiative does not address these
overlapping provisions. It is unknown how an additional source of revenue will affect the
application of these overlapping provisions.
Secretary of State Denney
September 24, 2019
Page 8
F.
The Initiative's Provision that the Quality Education Fund Supplement
and Not Replace General Account Appropriations May Be Ineffective.
The initiative appears intended to stop the legislature from offsetting any increase
in education spending due to the Quality Education Fund with a reduction in general
account appropriations; however, this provision may be ineffective. The initiative seeks
an overall increase in education spending in Idaho. To this end, it states that the Quality
Education Fund is to "augment and not replace K-12 public school support." It continues
by stating that money from the Quality Education Fund is to be provided in addition to the
state's general account appropriation "and not in place of any part of that appropriation."
The difficulty with this provision is in determining whether the money from the
Quality Education Fund takes the place of any part of an appropriation. Appropriations
are made by the legislature on a year-to-year basis based on detailed reports, budget
requests, and statutory frameworks. See Idaho Code§ 33-1001, et. seq. Each year, the
appropriation is a separate act of the legislature and not necessarily related to the
appropriation made the year before. It is difficult to compare year-to-year appropriation
amounts and it may be difficult to determine whether any year-to-year decrease in an
appropriation is caused by the Quality Education Fund.
Additionally, the plain language of the initiative may make the supplementary
provision difficult to enforce. Because this provision does not call for any year-to-year
comparison of appropriated amounts, it is possible that the requirements of the provision
are satisfied so long as the legislature appropriates any amount of revenue from the
general account in addition to the Quality Education Fund.
Ill.
Recommended Revisions, Alterations, Suggestions, and Miscellaneous
Issues
In addition to the comments already made in this certificate of review, the following
are recommended revisions, alterations, suggestions, and miscellaneous issues for
Section 1:
1.
In the amendment to the paragraph following the enumeration of the tax
bracket and rates, the initiative states, "For the top bracket contained in subsection (a) of
this section." The phrase "top bracket" is ambiguous as it could refer to the "$250,000
and over" bracket or to the bracket at the top of the list of brackets. Perhaps refer to it as
the "$250,000 and over" bracket or some other designation that is more specific.
2.
In that same paragraph as described in ,1 1, the initiative uses the phrase
"for the amount" and "the amount" to refer to what the other portions of the statute call the
"bracket amounts." To be consistent, and to avoid ambiguity, perhaps change the
initiative's phrasing to "bracket amount."
Secretary of State Denney
September 24, 2019
Page 9
The following are recommended
miscellaneous issues for Section 3:
revisions,
alterations,
suggestions,
and
1.
In the amendment to subsection (2) of Idaho Code section 63-3067, the
initiative uses the word "remitted." This word is not otherwise used to describe the
distribution of income tax revenue. To be consistent with the rest of the statute, perhaps
use the word "distributed."
2.
In the same paragraph as described in ,i 1, the initiative uses the phrase
"corporations and franchises." The use of the word "franchise" in this phrase is redundant
and only serves to introduce confusion. It appears that the initiative uses this word to tie
its distribution language to the franchise tax found in Idaho Code § 63-3025A. However,
as that tax only applies to corporations, it is not necessary for the initiative to separately
refer to "franchises."
3.
In the same paragraph as described in ,i 1, the initiative starts its second
and third sentences of its proposed amendment with a prepositional phrases; it should
punctuate those phrases with commas. "From each single person or married persons
filing separately an amount equal to three percent ... " should be, "From each single
person or married persons filing separately, an amount equal to three percent .... " "For
corporations and franchises an amount equal to 1.075% ... " should be, "For corporations
and franchises, an amount equal to 1.075% .... "
4.
In the same paragraph as described in ,i 1, the initiative fails to consistently
write out the distribution percentages. The initiative first uses the phrase, "an amount
equal to three percent (3%)," but later uses the phrase "an amount equal to 1.075%." In
this later instance, perhaps write out "an amount equal to one and seventy-five onethousandths percent (1.075%)."
5.
Additionally, in the same sentence described in ,r 4, the initiative joins two
independent clauses together with an "and;" the initiative should either divide the two
independent clauses into two separate sentences or punctuate this sentence with a
comma. "From each single person or married persons filing separately an amount equal
to three percent (3%) of the taxable income in excess of $250,000 and for married
persons filing jointly an amount equal to three (3%) of the taxable income in excess of
$500,000" should be, "From each single person or married persons filing separately, an
amount equal to three percent (3%) of the taxable income in excess of two hundred fifty
thousand dollars ($250,000). For married persons filing jointly an amount equal to three
(3%) of the taxable income in excess of five hundred thousand dollars ($500,000)."
6.
Once more, in the same sentence described in ,r 4, the initiative incorrectly
makes the word "person" plural in the phrase "married persons filing separately." As the
sentence is about "each" person, there is no need to say "married persons."
Secretary of State Denney
September 24, 2019
Page 10
7.
In the same paragraph as described in 1[ 1, the three sentences that the
initiative proposes to add are not wholly consistent with one another. The first sentence
states that the intent is to distribute the excess amounts collected as a result of increasing
the individual and corporate income tax rates to the Quality Education Fund. The second
and third sentences however set forth formulas for distributing revenue that are not tied
to the amount of revenue collected. Rather, these formulas are tied to the amount of
taxable income taxpayers have reported. The drafters of the initiative may wish to
reformulate its proposed method of distribution to better align the distribution formulas
with the intent of the initiative.
8.
In the same paragraph as described in 1[ 1, the initiative concludes the first
sentence of its amendment with the phrase "as follows," punctuating that phrase with a
period. As used in Idaho statute, the phrase "as follows" is nearly always followed by a
colon and not a period. Often the phrase is used before subsections. The drafters of the
initiative may wish to reconsider its use of the phrase "as follows" or modify the initiative
to match the statutory norm.
9.
In subsection three (3) of the Idaho Code§ 63-3067, there appears to be a
scrivener's error. The initiative does not appear to intend to make any modifications to
this subsection, however, the language in the initiative does not match the language of
the statute. Idaho Code§ 63-3067(3) states:
Any unencumbered balance remaining in the state refund account on June
30 of each and every year in excess of the sum of one million five hundred
thousand dollars ($1,500,000) shall be transferred to the general fund and
the state controller is hereby authorized and directed on such dates to make
such transfers unless the board of examiners, which is hereby authorized
to do so, changes the date of transfer or sum to be transferred.
While the initiative states:
Any unencumbered balance remaining in the state refund account on June
30 of each and every year in excess of the sum of one million five hundred
thousand dollars ($1,500,000) shall be transferred to the general fund and
the state controller is hereby authorized and directed on such dates to make
such transfers unless the board of examiners, which is hereby authorized
and directed on such dates to make such transfers unless the board of
examiners, which is hereby authorized to so, changes the date of transfer
or sum to be transferred.
(Emphasis added.) The initiative has added the language indicated in italics. This added
language appears to be just a mistake in copying the language of the statute.
Secretary of State Denney
September 24, 2019
Page 11
The following are recommended
miscellaneous issues for Section 4:
revisions,
alterations,
suggestions,
and
1.
In subsection one (1) of proposed Idaho Code section 33-911, the second
sentence of the proposed section needs an Oxford comma to improve clarity. The
sentence presently states, "The fund shall consist of moneys made available through
legislative transfers or appropriations, from the sales tax account, from the state income
tax and from any other governmental or private sources." The sentence should state,
"The fund shall consist of moneys made available through legislative transfers or
appropriations, from the sales tax account, from the state income tax, and from any other
governmental or private sources."
2.
The second half of the same paragraph as described in 1[ 1 contains a
complicated list of what the State Board of Education may fund with money from the
Quality Education Fund. This list lacks conjunctive terms and does not use semi-colons
consistently. The list states: "Reducing class sizes and preventing class size increases;
attracting and retaining highly qualified teachers and support staff, including but not
limited to, providing competitive salaries, offering continuing education opportunities, and
providing support for new educators; providing current and adequate classroom
materials, such as textbooks and supplies for students; providing career technical
education, providing full day kindergarten, providing art, music and drama programs,
providing special education services." The list should state, "Reducing class sizes and
preventing class size increases; attracting and retaining highly qualified teachers and
support staff, including but not limited to, providing competitive salaries, offering
continuing education opportunities, and providing support for new educators; providing
current and adequate classroom materials, such as textbooks and supplies for students;
providing career technical education; providing full day kindergarten; providing art, music
and drama programs; and providing special education services."
3.
In subsection two (2) of proposed Idaho Code section 33-911, a phrase in
the first sentence is missing the article "the." The phrase states, "moneys in the fund
pursuant to distribution provided in subsection (1) .... " This phrase should be, "moneys
in the fund pursuant to the distribution provided in subsection (1) .... "
4.
In the same paragraph referred to in 1[ 2, the final sentence lacks an Oxford
comma. That sentence presently states, "Moneys from the fund shall not be used to pay
superintendents', principals' or other administrators' salaries or other compensation." The
sentence should be, "Moneys from the fund shall not be used to pay superintendents',
principals', or other administrators' salaries or other compensation."
Secretary of State Denney
September 24, 2019
Page 12
CERTIFICATION
I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style,
and matters of substantive import. The recommendations set forth above have been
communicated to the Petitioner via a copy of this Certification of Review, deposited in the
U.S. Mail to Reclaim Idaho c/o Jeremy Gugino, 701 E. Jefferson St., Boise, Idaho 83712 .
Sincerely,
LAWRENCE G. WASDEN
Attorney General
Analysis by:
Nathan Nielson
Deputy Attorney General