Did Idaho's 1994 voter-passed term limits law (Idaho Code 34-907) reach state judges, or only executive-branch officials?
Plain-English summary
Representative Tippets asked whether the ballot-access term-limits restriction at Idaho Code § 34-907(1)(c) applied to members of the Idaho judiciary. The statute said no name could appear on a ballot if the person had served as "a state elected official, during eight (8) or more of the previous fifteen (15) years." Judges and justices appear on retention ballots every four or six years; the question was whether they counted as "state elected officials" within the statute's reach.
The AG concluded a reviewing court would likely say no. Two pieces of evidence pointed away from including judges. First, the ballot title that voters approved when adopting Proposition 2 in 1994 described § 34-907(1)(c) as covering "state executive offices," not the judiciary. Idaho Supreme Court precedent (In re Idaho State Fed'n of Labor) treats ballot-title preparation as a quasi-judicial function and gives the title weight as authoritative legislative history for an initiative. Judges are clearly not officers of the executive branch; they are governed by article 5 of the Idaho Constitution.
Second, the statute's mechanics didn't fit. The eight-of-fifteen restriction was calibrated to two terms of office: state legislators' two-year terms times four, statewide executive officers' four-year terms times two, and so on. Idaho Supreme Court justices serve six-year terms (Idaho Const. art. 5, § 6), so the eight-year cap would hit at the midpoint of a justice's second term, not at any natural break-point. The text just doesn't match judicial offices.
The AG noted the equal-footing principle (Luker v. Curtis): an initiative is on equal footing with a legislative act, and the same interpretive tools apply. The U.S. Supreme Court had already invalidated the federal portion of Idaho's term-limits scheme in U.S. Term Limits, Inc. v. Thornton (1995), but the state portion remained operative pending the Rudeen v. Cenarrusa appeal.
Currency note
This opinion was issued in 1999. 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.
Idaho's term-limits statute was substantially affected by subsequent litigation (the Rudeen line of cases) and ultimately by legislative repeal in 2002. The interpretive question this opinion addressed is therefore historically interesting but not currently binding. Anyone researching current Idaho ballot-access rules should consult the current statute.
Common questions
Q: Why does the ballot title matter so much?
A: Because it is the statement voters relied on when approving the initiative. Idaho courts treat the AG's ballot-title preparation as a quasi-judicial function (In re Idaho State Fed'n of Labor) and use the title as legislative history when interpreting the resulting law. The Proposition 2 title described § 34-907(1)(c) as covering "state executive offices," and that description bound the AG's later interpretation.
Q: Are judges "elected officials" in Idaho?
A: They appear on retention ballots, which are a kind of election. So in a literal sense yes. But the statutory phrase "state elected official" is read against the surrounding context, including the ballot title and the practical fit of the restriction's mechanics. In context, "elected" referred to executive-branch elections rather than judicial retention ballots.
Q: What's the equal-footing rule from Luker v. Curtis?
A: It's the rule that initiative-passed legislation has the same legal status as legislature-passed legislation. The same canons of interpretation, the same constitutional limits, and the same legislative-history tools apply. It cuts both ways: voters cannot do through initiative what the Legislature could not do, but courts can also use the same interpretive techniques to read initiatives as they read statutes.
Q: What happened to the term limits law eventually?
A: A district court in Power County struck down the county-officials portion in Rudeen v. Cenarrusa (August 2000). The case went on appeal to the Idaho Supreme Court. The Idaho Legislature ultimately repealed the state-level term limits in 2002 before the Idaho Supreme Court resolved the appeal on the merits.
Background and statutory framework
Proposition 2, adopted by Idaho voters in 1994, enacted three statutes: Idaho Code § 34-907 (state and county officials), § 50-478 (municipal officers), and § 33-443 (school district trustees). Each established term-limit-type ballot-access restrictions. The U.S. Supreme Court's 1995 decision in U.S. Term Limits, Inc. v. Thornton invalidated the application to congressional candidates as inconsistent with the federal Qualifications Clauses, but the state and local portions remained in force pending state-court litigation.
The Idaho Constitution at art. 3, § 1 vests the initiative power in the people. Art. 5 governs the judicial branch and at § 6 sets six-year terms for Idaho Supreme Court justices.
Citations and references
Constitutional provisions: Idaho Const. art. 3, § 1; art. 5; art. 5, § 6.
Statutes: Idaho Code §§ 33-443, 34-907, 34-907(1)(c), 34-1809, 50-478.
Cases: In re Idaho State Fed'n of Labor, 75 Idaho 367, 272 P.2d 707 (1954); Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943); United States Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/Op99-01.pdf
Original opinion text
ATTORNEY GENERAL OPINION 99-1
The Honorable John H. Tippets
Idaho House of Representatives
Idaho State Legislature
STATEHOUSE MAIL
Per Request for Attorney General's Opinion
QUESTION PRESENTED
Does the ballot access restriction contained in Idaho Code § 34-907(1)(c) apply to members of the judiciary?
CONCLUSION
The phrase "state elected official" is not defined in the Idaho Code. However, this office believes that a reviewing court probably will conclude that the judiciary is not included in the ballot access restriction created by Idaho Code § 34-907(1)(c).
ANALYSIS
Idaho Code § 34-907 was enacted by voter initiative, along with Idaho Code §§ 50-478 and 33-443, during the 1994 general election. Collectively, these provisions appeared on the ballot as "Proposition 2." The statutes enacted through Proposition 2 established ballot access restrictions for a variety of incumbent federal state and local officials. While ballot access restrictions for federal elected officials were ruled unconstitutional by the United States Supreme Court in United States Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), Proposition 2's ballot access restrictions for state and some local officials remain in place.
As an initial matter, art. 3, sec. 1 of the Idaho Constitution states that the voters of Idaho may exercise the power to enact legislation without the legislature:
This power is known as the initiative, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, initiate any desired legislation and cause the same to be submitted to the vote of the people at a general election for their approval or rejection.
Idaho Const., art. 3, §1.
The Idaho Supreme Court has determined that the initiative is "on equal footing" with acts of the legislature. Luker v. Curtis, 64 Idaho 703, 706, 136 P.2d 978, 979 (1943). Therefore, in attempting to interpret the phrase "state elected official," a reviewing court is likely to use whatever information was prepared in connection with Proposition 2 to determine the meaning of language within the proposition in the same way that a court would use legislative history to determine the meaning of statutory language adopted by the legislature.
Idaho Code § 34-907(1)(c) prohibits a person's name from appearing on an election ballot if that person has served as "a state elected official, during eight (8) or more of the previous fifteen (15) years." The phrase "state elected official" is not defined in the Idaho Code. Therefore, it is possible to argue that since members of the judiciary are subject to retention elections every four or six years, they should then be considered state elected officials for purposes of Idaho Code § 34-907(1)(c). However, there are two factors that serve to undercut this conclusion.
First, the ballot title for the initiative enacting term limits in 1994 stated that Idaho Code § 34-907(1)(c) is limited to "state executive offices":
PROPOSITION TWO
AN INITIATIVE ESTABLISHING TERM LIMITS FOR ELECTED FEDERAL, STATE, COUNTY, MUNICIPAL AND SCHOOL DISTRICT OFFICIALS
Initiative relating to the number of years an elected official may serve: providing a new section to the Idaho Code, § 34-907, limiting the number of years a person may serve in the following elected offices by restricting eligibility to appear on the ballot after serving a prescribed number of years: United States House of Representatives, United States Senate, state executive offices, state legislature, county elected offices; providing a new section to the Idaho Code, § 50-478, restricting municipal officers' eligibility to appear on the ballot after serving eight years in one position; providing a new section to the Idaho Code, § 33-443, restricting school district trustees' eligibility to appear on the ballot after serving six years in one district; providing that any person may stand for election as a write-in candidate; providing an effective date of January 1, 1995; providing that service prior to that date shall not be counted for purposes of ballot eligibility and providing a severability clause.
(Emphasis added.)
Naturally, members of the judiciary do not hold "state executive offices." Put another way, judges and justices are not officers of the executive branch of government. They are officers of the judicial branch governed by art. 5 of the Idaho Constitution.
Idaho Code § 34-1809 sets out a formal process for the development of ballot titles. They are intended to be a "true and impartial statement of the purpose of" the initiative. Idaho Code § 34-1809. In preparing these titles, the office of the attorney general is performing "a quasi judicial function." In re Idaho State Fed'n of Labor, 75 Idaho 367, 374, 272 P.2d 707, 711 (1954). As a result, a reviewing court is likely to place great importance on how a ballot title describes the application of a voter initiative. If a reviewing court follows the ballot title that was developed for Idaho Code § 34-907(1)(c), then the court is likely to rule that ballot access restrictions apply only to executive branch officers, not to members of the judiciary.
Second, the event that triggers Idaho Code § 34-907(1)(c)'s ballot access restriction is the holding of a "state elected office" for eight or more years after January 1, 1995. For every official covered by section 34-907(1)(c), the statutory limit coincides with the end of the second term of office. If the provision applied to members of the Idaho Supreme Court, for example, the eight-year limit would occur at the midpoint of each justice's second term because art. 5, sec. 6 of the Idaho Constitution establishes six-year terms for members of the Idaho Supreme Court. A reviewing court is likely to conclude that section 34-907(1)(c) does not apply to members of the judiciary because it does not reflect the actual term of office for some members of the judiciary.
Dated this 17th day of March, 1999.
Sincerely,
ALAN G. LANCE
Idaho Attorney General
Analysis by:
MATTHEW J. MCKEOWN
Deputy Attorney General