Electronically Filed
12/21/2018 3:12 PM
Idaho Supreme Court
Karel Lehrman, Clerk of the Court
By: Melanie Gagnepain, Deputy Clerk

IN THE SUPREME COURT OF THE STATE OF IDAHO
BRENT REGAN, a qualified elector of the )
State of Idaho,
) Supreme Court Docket No. 46545-2018
)
Petitioner,
)
vs.
)
LAWERENCE DENNEY, Secretary of State )
of the State of Idaho, in his official capacity,
)
)
Respondent,
)
DELEENA FOSTER, an individual, PAMELA )
BLESSINGER, an individual, BRUCE )
BELZER, MD, an individual, and IDAHO )
MEDICAL ASSOCIATION, INC., an Idaho )
non-profit corporation,
)
)
Intervenors-Respondents.
)
RESPONDENT’S BRIEF
LAWRENCE G. WASDEN
ATTORNEY GENERAL
BRIAN P. KANE, ISB #6264
Assistant Chief Deputy Attorney General
brian.kane@ag.idaho.gov
STEVEN L. OLSEN, ISB #3586
Chief of Civil Litigation
W. SCOTT ZANZIG, ISB #9361
Deputy Attorney General
Statehouse, Room 210
Boise, ID 83720-0010
scott.zanzig@ag.idaho.gov
Counsel for Respondent
 

BRYAN SMITH
SMITH, DRISCOLL & ASSOCIATES, PLLC
414 Shoup Avenue
Idaho Falls, ID 83405
bds@eidaholaw.com
Attorney for Petitioner
KENNETH R. MCCLURE
DAVID R. LOMBARDI
JEFFREY W. BOWER
GIVENS PURSLEY LLP
601 West Bannock Street
Boise, ID 83701-2720
krm@givenspursley.com
drk@givenspursley.com
jeffbower@givenspursley.com
Attorneys for Intervenors-Respondents 

 TABLE OF CONTENTS
I.

STATEMENT OF THE CASE ....................................................................................1

II.

ADDITIONAL ISSUES PRESENTED ON APPEAL ..................................................2

III.

ARGUMENT ................................................................................................................3
A.

The Court Lacks Original Jurisdiction to Consider the Petition .......................3
1.

The Court has determined that Idaho Code § 34-1809(4)
does not and cannot create original jurisdiction in the
Supreme Court ......................................................................................3

2.

Even if Idaho Code § 34-1809(4) could expand the Court’s
original jurisdiction to allow for consideration of a challenge
to an initiative, it could not provide jurisdiction for this
challenge, because Idaho Code § 56-267 is no longer an
initiative; it already has become law ......................................................5

B.

Petitioner Does Not Have Standing ...................................................................5

C.

The Petition Raises Non-Justiciable, Purely Hypothetical Concerns ................7
1.

Medicaid is an entirely optional cooperative state-federal
program ..................................................................................................7

2.

The Medicaid plan amendment process is state driven, not
delegated to the federal government ......................................................8

3.

Idaho Code § 56-267’s Medicaid eligibility expansion will
not occur unless the legislature appropriates necessary funds
..............................................................................................................10

4.

Petitioner’s claims are not justiciable because they are
purely hypothetical...............................................................................11

D.

Section 56-267 is constitutional because it delegates no authority to the federal
government and prescribes specific terms under which the State may expand
Medicaid eligibility ..........................................................................................12

E.

The Court Should Award Respondent Reasonable Attorneys’ Fees Because
Petitioner Brought This Action “Frivolously, Unreasonably or Without
Foundation” Within the Meaning of Idaho Code § 12-121 .............................19

i

 IV.

CONCLUSION ............................................................................................................20

ii

 TABLE OF AUTHORITIES
Cases
American Power & Light Co. v. SEC, 329 U.S. 90 (1946) ........................................................... 14
Ameritel Inns, Inc. v. Greater Boise Auditorium Dist., 141 Idaho 849, 119 P.3d 624 (2005)........ 6
Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015) ......................................... 18
Greer v. Lewiston Golf & Country Club, Inc., 81 Idaho 393, 342 P.2d 719 (1959)....................... 6
Haight v. Dep’t of Trans., 163 Idaho 383, 414 P.3d 205 (2018) .............................................. 7, 11
Harris v. McRae, 448 U.S. 297 (1980) ........................................................................................... 7
Idaho Savings & Loan Ass’n. v. Roden, 82 Idaho 128, 350 P.2d 225 (1960)............................... 15
In re Petition to Determine Constitutionality of Idaho Code Sections 67-429B and
67-429C, Enacted in the Indian Gaming Initiative, Proposition One, No. 29226
(Idaho S. Ct. June 2, 2003) (order dismissing petition), reh’g denied (Oct. 16, 2003) ............... 3
In Re Petition of the Idaho State Federation of Labor, 75 Idaho 367, 272 P.2d 707 (1954) ......... 5
J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928) ................................................ 13
Koch v. Canyon County, 145 Idaho 158, 177 P.3d 372 (2008) ...................................................... 6
Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943) ...................................................................... 5
Mead v. Arnell, 117 Idaho 660, 791 P.2d 410 (1990)..................................................................... 3
Michalk v. Michalk, 148 Idaho 224, 220 P.3d 580 (2009)............................................................ 19
Moore ex rel Moore v. Reese, 637 F.3d 1220 (11th Cir. 2011) ...................................................... 7
National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) .................. passim
Neil v. Public Utilities Comm’n, 32 Idaho 44, 178 P. 271 (1919) .............................................. 3, 4
Noh v. Cenarrusa, 137 Idaho 798, 53 P.3d 1217 (2002) ............................................................ 4, 5
State v. Kellogg, 98 Idaho 541, 568 P.2d 514 (1977) ............................................................ passim
State v. Rhoades, 121 Idaho 63, 822 P.2d 960 (1991) .............................................................. 7, 11

iii

 Steuerer v. Richards, 155 Idaho 280, 311 P.3d 292 (2013) .......................................................... 19
Texas v. United States, No. 4:18-cv-00167-O, 2018 WL 6589412 (N.D. Tex. Dec. 14, 2018) ..... 8
Troutner v Kempthorne, 142 Idaho 389, 128 P.3d 926 (2006) ....................................................... 6
Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001) .................................... 13
Statutes
Idaho Code § 7-202......................................................................................................................... 2
Idaho Code § 12-121................................................................................................................. 3, 19
Idaho Code § 33-2202................................................................................................................... 15
Idaho Code § 33-2901, - 2902, and -2905 .................................................................................... 15
Idaho Code § 34-1809(3) ................................................................................................................ 4
Idaho Code § 34-1809(4) ....................................................................................................... passim
Idaho Code § 34-1813..................................................................................................................... 5
Idaho Code § 56-202..................................................................................................................... 17
Idaho Code § 56-202(a) .................................................................................................................. 8
Idaho Code § 56-202(d) .................................................................................................................. 9
Idaho Code § 56-203(1-7, 9)........................................................................................................... 9
Idaho Code § 56-253..................................................................................................................... 17
Idaho Code § 56-254..................................................................................................................... 15
Idaho Code § 56-267.............................................................................................................. passim
Idaho Code § 56-267(1) ................................................................................................................ 17
Idaho Code § 67-5291................................................................................................................... 17
Idaho Code § 74-104(1) ................................................................................................................ 15
42 U.S.C. § 1396 (1976 ed. and Supp. II)....................................................................................... 7

iv

 42 U.S.C. § 1396a ....................................................................................................................... 7, 9
42 U.S.C. § 1396a(a)(30)(A) ........................................................................................................ 18
42 U.S.C. § 1396(a)(10)(A)(i)(VIII) ............................................................................................... 8
42 U.S.C. § 1396c ........................................................................................................................... 8
Regulations
42 CFR § 430.0 ............................................................................................................................... 9
42 CFR § 430.10 ............................................................................................................................. 9
42 CFR § 430.12 ............................................................................................................................. 9
42 CFR § 430.16 ............................................................................................................................. 9
42 CFR § 430.18 ........................................................................................................................... 10
Constitutional Provisions
Idaho Const. Art. II, § 1 ................................................................................................................ 13
Idaho Const. Art. III, § 1 ................................................................................................................. 1
Idaho Const. Art. III, § 29 ............................................................................................................. 14
Idaho Const. Art. IV, § 10............................................................................................................. 11
Idaho Const. Art. VII, § 13 ........................................................................................................... 10
Idaho Const. Art. VIII, § 3 .............................................................................................................. 6
Other Authorities
H. 695............................................................................................................................................ 10
S. 1174 .......................................................................................................................................... 11
S. 1391 .......................................................................................................................................... 11

v

 I.

STATEMENT OF THE CASE

Idaho Code § 56-267 met the requirements for an initiative and was placed for
consideration by the Idaho electorate on the November 2018 ballot as Proposition 2. There were
365,107 Idahoans who voted to make Idaho Code § 56-267 law, while 237,567 voted against it.
A majority of the voters, 60.6%, voted in favor of the initiative. In fulfillment of the requirements
under Article III, § 1, of the Idaho Constitution, and Chapter 18, Title 34, of the Idaho Code, the
Acting Governor issued a proclamation on November 20, 2018.1 As a result, Idaho Code § 56267 is a law of the State of Idaho.
Petitioner, Brent Regan, seeks an order from this Court declaring that Idaho Code § 56-267
is unconstitutional because it impermissibly delegates discretionary authority to the federal
government and the Idaho Department of Health and Welfare. Petitioner’s Brief at 16. But section
56-267 does not unlawfully delegate any authority, because it provides specific terms for
expansion of Medicaid coverage in Idaho and authorizes the Department of Health and Welfare to
take the actions necessary to implement that expansion. It provides:
56-267. MEDICAID ELIGIBILITY EXPANSION. (1) Notwithstanding any
provision of law or federal waiver to the contrary, the state shall amend its state
plan to expand Medicaid eligibility to include those persons under sixty-five
(65) years of age whose modified adjusted gross income is one hundred thirtythree percent (133%) of the federal poverty level or below and who are not
otherwise eligible for any other coverage under the state plan, in accordance
with sections 1902(a)(10)(A)(i)(VIII) and 1902(e)(14) of the Social Security
Act.
(2) No later than 90 days after approval of this act, the department shall submit
any necessary state plan amendments to the United States Department of Health
and Human Services, Centers for Medicare and Medicaid Services to implement
the provisions of this section. The department is required and authorized to take
all actions necessary to implement the provisions of this section as soon as
practicable.

1 A copy of the proclamation is attached as Appendix 1.

1

 Section 56-267 allows for expansion of Medicaid only if three conditions are met. The
newly eligible must be under 65 years old, have an adjusted gross income under 133% of the
federal poverty level, and not be otherwise eligible for coverage under specific statutory
provisions. Medicaid is a federal-state cooperative program under which costs for medical
services are shared by the federal and state sovereigns. The discretion granted under Idaho Code
§ 56-267 permits the responsible state authorities to cooperate and implement the law as intended.
Petitioner did not challenge Proposition 2 during the initiative process. He waited until
November 21, 2018, to bring his challenge to section 56-267, after it became law. Petitioner did
not file an action in district court challenging the law. Instead, he filed an original action in this
Court, relying solely on Idaho Code § 34-1809(4). Petition for Review at 3, ¶ 1.2
II.
A.

ADDITIONAL ISSUES PRESENTED ON APPEAL

Should the Court dismiss the petition because the Court lacks original jurisdiction

to consider it?
B.

Should the Court dismiss the petition because Petitioner lacks standing?

C.

Even if the Court had original jurisdiction to consider a challenge to section

56-267, should it dismiss the petition as non-justiciable because it raises purely hypothetical
concerns?
D.

Even if the Court considered the petition on its merits, should the Court deny the

petition because section 56-267 prescribes the specific terms under which the State and

2 Petitioner has titled his action a “Petition for Review,” but it does not seek review of any

“inferior tribunal, board or officer exercising judicial functions” as provided in Idaho Code
§ 7-202. And Petitioner has argued that Idaho Appellate Rule 5(d) should not apply to his case,
Petitioner’s Brief at 6, so it cannot be considered as a request for an extraordinary writ governed
by Rule 5(d). Thus, Idaho Code § 34-1809(4) is the sole basis on which Petitioner relies to
establish original jurisdiction in this Court.

2

 Department of Health and Welfare may expand Medicaid eligibility, and it delegates no authority
to the federal government?
E.

Should the Court award Respondent his reasonable attorneys’ fees because

Petitioner brought this action “frivolously, unreasonably or without foundation” within the
meaning of Idaho Code § 12-121?
III.
A.

ARGUMENT

The Court Lacks Original Jurisdiction to Consider the Petition.
Petitioner contends Idaho Code § 34-1809(4) confers original jurisdiction in this Court.

There are two problems with this argument. First, the Constitution, not the legislature, defines the
Court’s jurisdiction. Article V, § 9; Neil v. Public Utilities Comm’n, 32 Idaho 44, 178 P. 271, 273
(1919).

So the legislature had no authority to expand the Court’s original jurisdiction in section

34-1809(4). Second, by its terms, section 34-1809(4) applies only to “initiative[s].” The law
Petitioner challenges, Idaho Code § 56-267, is no longer an initiative; it is a law.
1.

The Court has determined that Idaho Code § 34-1809(4) does not and cannot
create original jurisdiction in the Supreme Court.

The separation of powers doctrine mandates that neither the legislature nor the executive
can regulate the Supreme Court’s original jurisdiction. Mead v. Arnell, 117 Idaho 660, 663, 791
P.2d 410, 413 (1990). Based on this principle, this Court determined that Idaho Code § 34-1809(4)
is an impermissible attempt to expand the Court’s original jurisdiction. In re Petition to Determine
Constitutionality of Idaho Code Sections 67-429B and 67-429C, Enacted in the Indian Gaming
Initiative, Proposition One, No. 29226 (Idaho S. Ct. June 2, 2003) (order dismissing petition),
reh’g denied (Oct. 16, 2003).3 In that case, as in this, the petitioners sought to bring an original

3 For the Court’s convenience, copies of its orders from the Indian Gaming Initiative case

are attached to this brief as Appendices 2 and 3.

3

 proceeding in this Court to raise a post-election challenge to an initiative that had become law. In
its order dismissing the petition for lack of jurisdiction, the Court held that section 34-1809(4) did
not and could not create original jurisdiction in the Supreme Court because “[t]he legislature has
no power to extend this Court’s original jurisdiction. Neil v. Public Utilities Comm’n, 32 Idaho
44, 178 P. 271 (1919).” In the Indian Gaming case, the petitioners argued that Article III, §1,
which guarantees the right of initiative to the people, includes the legislative ability to assign
original jurisdiction to the Court to review initiatives. But the Court rejected that notion: “There
is absolutely nothing in the wording of this provision that could be reasonably so construed.”
Order at 2.4
In this case, Petitioner has not provided any argument as to how Idaho Code § 34-1809(4)
is a constitutionally permissible expansion of this Court’s original jurisdiction. In Neil, the Court
expressly stated, “The jurisdiction of this court is fixed by the Constitution and cannot be
broadened or extended by the Legislature.” 32 Idaho at 52, 178 P. at 273. And the Court’s order
in the Indian Gaming Initiative case considers and rejects any conceivable argument Petitioner
might offer. This Court should dismiss the petition for lack of original jurisdiction.5

4 In Noh v. Cenarrusa, 137 Idaho 798, 53 P.3d 1217 (2002), at least one member of the

Court would have held that Idaho Code § 34-1809(4) was unconstitutional:
The Legislature's instruction to this Court to hear controversies that would not
otherwise be justiciable constitutes an exercise of a power properly belonging to
this Court that the legislature is not constitutionally permitted to exercise. The
majority acknowledges that the legislature cannot create a justiciable controversy
where none exists. I believe we should take the next step and find unconstitutional
the relevant clause of I.C. § 34-1809.
Id. at 804, 53 P.3d at 1223 (2002) (Kidwell, J., concurring).
5 Petitioner may point to the Court’s review of ballot titles as conferring original
jurisdiction on this Court. See Idaho Code § 34-1809(3). But a challenge to ballot titles is an
appeal from the Attorney General, who is acting in a quasi-judicial capacity by assigning impartial
titles to the measure. In this regard, the Attorney General is not acting as either an adversary or

4

 2.

Even if Idaho Code § 34-1809(4) could expand the Court’s original jurisdiction to
allow for consideration of a challenge to an initiative, it could not provide
jurisdiction for this challenge, because Idaho Code § 56-267 is no longer an
initiative; it already has become a law.

Idaho Code § 34-1809(4) purports to allow for review of an initiative at any time following
the Attorney General’s issuance of the certificate of review; however, this provision does not by
its terms permit review of a law. An initiative is the power of the people to propose legislation,
and enact or reject the same at the polls independent of the legislature. Luker v. Curtis, 64 Idaho
703, 136 P.2d 978 (1943). This means that an initiative is only an initiative until such time as it is
rejected or approved. Once a majority of voters approves an initiative, the Governor issues a
proclamation under Idaho Code § 34-1813 declaring that the measure has the “full force and effect
as the law of the state of Idaho from the date of [the] proclamation.” At that point, the measure is
no longer an initiative because it has become law, and is on “equal footing” with all other laws in
the State of Idaho. Luker, 64 Idaho at 706, 136 P.2d at 979.
As of November 20, 2018, Proposition 2 ceased being an initiative and became Idaho Code
§ 56-267, a law. Because he waited until November 21, 2018 to challenge that law, Petitioner
should have filed his claims in district court under Title 10, Chapter 12, the Uniform Declaratory
Judgment Act.
B.

Petitioner Does Not Have Standing.
Recognizing that Idaho Code § 34-1809(4) attempts to unconstitutionally create original

jurisdiction, it also attempts to bestow standing on “[a]ny qualified elector . . . .” But if that statute

advocate of the measure. So a ballot title petition to the Court is one of certiorari or review, not
an assignment of original jurisdiction. In Re Petition of the Idaho State Federation of Labor, 75
Idaho 367, 374, 272 P.2d 707, 710-711 (1954). See also Noh v. Cenarrusa, 137 Idaho 798, 802,
53 P.3d 1217, 1221 (2002) (noting the distinction between a challenge to ballot titles versus a
challenge to constitutionality). In this case, the Attorney General has determined that he cannot
defend Idaho Code § 34-1809(4) because it is contrary to well-settled Idaho Supreme Court
precedent, as described by the Court in its Indian Gaming order.

5

 is overturned by this Court, then Petitioner cannot independently demonstrate standing. As a
general rule, a citizen or taxpayer, by reason of that status alone, does not have standing to
challenge governmental action. “An interest, as a concerned citizen, in seeing that the government
abides by the law does not confer standing.” Troutner v. Kempthorne, 142 Idaho 389, 391, 128
P.3d 926, 928 (2006). “A citizen or taxpayer may not challenge a governmental enactment where
the injury is one suffered alike by all citizens and taxpayers of the jurisdiction.” Ameritel Inns,
Inc. v. Greater Boise Auditorium Dist., 141 Idaho 849, 852, 119 P.3d 624, 627 (2005). “The
general rule holds even if the citizen or taxpayer alleges some indirect harm from the governmental
action.” Koch v. Canyon County, 145 Idaho 158, 160, 177 P.3d 372, 374 (2008).
As the Court explained in Koch, there is a narrow exception to this rule that permits
taxpayer standing when the case involves an “‘illegal expenditure of public money,’” id. at 161,
177 P.3d at 375 (quoting Greer v. Lewiston Golf & Country Club, Inc., 81 Idaho 393, 397, 342
P.2d 719, 722 (1959)), that would violate Article VIII, § 3, of the Idaho Constitution. Koch, 145
Idaho at 162, 177 P.3d at 376. This narrow exception does not apply in this case. Petitioner does
not contend that Idaho Code § 56-267 violates Article VIII, § 3, of the Idaho Constitution.
In the instant case there is no illegal expenditure of money coupled with an increased tax
burden because the Idaho legislature has the discretion and authority to appropriate the necessary
funds to implement section 56-267. Petitioner has not alleged any harm to himself. Instead,
Petitioner has raised a generalized policy-based grievance against the State’s implementation of
Medicaid expansion, which is not actionable. Petitioner cannot satisfy the requirements for
standing.

6

 C.

The Petition Raises Non-Justiciable, Purely Hypothetical Concerns.
Even if the legislature had the power to expand the Court’s original jurisdiction through

Idaho Code § 34-1809(4), Petitioner’s claims should be dismissed because they are not justiciable.
They raise merely “hypothetical” concerns. See Haight v. Dep’t of Trans., 163 Idaho 383, 391,
414 P.3d 205, 213 (2018) (citing State v. Rhoades, 121 Idaho 63, 69, 822 P.2d 960, 966 (1991)).
State participation in Medicaid and its expansion is optional, and depends on the legislature’s
willingness to appropriate the necessary funds. Even if the legislature chooses to appropriate the
funds necessary to implement section 56-267, the possible future concerns Petitioner raises are
merely conjectural, and may never come to pass.
1.

Medicaid is an entirely optional cooperative state-federal program.

The Medicaid program was created in 1965, when Congress added Title XIX to the Social
Security Act, 79 Stat. 343, as amended, 42 U.S.C. § 1396 et seq. (1976 ed. and Supp. II), for the
purpose of providing federal financial assistance to states that choose to reimburse certain costs of
medical treatment for needy persons. Although participation in the original Medicaid program is
entirely optional, once a state elects to participate, it must comply with the requirements of Title
XIX. Harris v. McRae, 448 U.S. 297, 301 (1980). Medicaid is a jointly financed federal-state
cooperative program to assist states in the provision of medical care to their needy citizens. Moore
ex rel Moore v. Reese, 637 F.3d 1220, 1232 (11th Cir. 2011).
In 2010, 42 U.S.C. §1396a was amended6 to expand what states were required to offer
through their respective Medicaid programs. National Federation of Independent Business
(“NFIB”) v. Sebelius, 567 U.S. 519, 542 (2012). Most relevant for this case, the Act required state

6 These amendments were part of the larger Patient Protection and Affordable Care Act of

2010.

7

 programs to provide Medicaid coverage to adults with incomes up to 133 % of the federal poverty
level. 42 U.S.C. §1396(a)(10)(A)(i)(VIII). When Congress passed this amendment, it made the
expansion of Medicaid eligibility a mandatory requirement for ongoing Medicaid participation. In
other words, if a state did not expand its Medicaid offerings in compliance with the Act, the federal
government could withhold 100% of a state’s Medicaid funding.
Twenty-six states, including Idaho, sued to challenge this mandatory expansion provision
alleging that Medicaid was an optional cooperative agreement between states and the federal
government, and that by conditioning ongoing funding on state expansion of Medicaid, the
amendment violated the Spending Clause. The United States Supreme Court agreed, finding that
the financial inducement offered by Congress to states to expand Medicaid was akin to a “gun to
the head.” NFIB v. Sebelius, 567 U.S. at 581. Requiring states to expand Medicaid or risk the loss
of all Medicaid funding was an “economic dragooning” leaving states with no real option but to
accept the expansion. The Court resolved this infirmity by prohibiting application of § 1396c in a
way that resulted in states placing the entirety of their Medicaid funding in jeopardy. Id. at 58586. In sum, Medicaid remains a fully-optional state and federal cooperative program.7
2.

The Medicaid plan amendment process is state driven, not delegated to the federal
government.

Idaho Code § 56-267 instructs the Department of Health and Welfare to expand the State’s
offering of Medicaid services to enumerated beneficiaries. This instruction is consistent with the
Director and the Department’s already existent authority under Idaho Code §§ 56-202(a) (Director

7 Idaho is not a party to the recent district court decision in Texas addressing the

constitutionality of healthcare reform in total. Texas v. United States, No. 4:18-cv-00167-O, 2018
WL 6589412 (N.D. Tex. Dec. 14, 2018). It is important to note that that decision does not impose
a nationwide injunction or impact Idaho's Medicaid expansion efforts in any way.

8

 to administer public assistance and social services to eligible people)8 & 56-203(1-7, 9).
Additionally, Idaho Code § 56-267 is not self-executing. Two additional steps must be taken.
First, the State must amend its plan, and second, the Idaho legislature must appropriate the “state
match” for the expanded scope of Medicaid.
Medicaid is a federal-state cooperative plan. Under this cooperative endeavor, each state
submits to the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid
Services (“CMS”) a comprehensive written statement called a “state plan” that describes the nature
and scope of its Medicaid program. 42 CFR § 430.10. A state specifies in its state plan many
operational and policy decisions including eligible groups, types and range of services covered,
how payments to providers are determined, and other administrative and operating procedures.
42 USC § 1396a; 42 CFR § 430.0. Each state plan is subject to amendment at any time when the
state has a material change in policy, state law, or organization and operation of the program, or
there is a change in federal laws or by court decision. 42 CFR § 430.12. The state plan will also
give assurances that a state will follow federal rules in order to provide the basis for federal
financial participation in the state program. 42 CFR § 431.10. The format for a state plan is
organized into seven sections according to the federal template that includes basic content as well
as state-specific content that reflects the characteristics of the state’s program. 42 CFR
§ 430.12. CMS may either approve or disapprove a state plan or plan amendment. A state plan is
considered approved within 90 days unless CMS disapproves or requests further information from
the state in order to make a final determination, which would begin another 90-day timeframe for
CMS to consider the submission. 42 CFR § 430.16. Procedures and timeframes for a state that

8 Idaho Code § 56-202(d) requires annual reporting to the legislature and governor of

activities and expenditures along with compliance with federal reporting requirements. This adds
yet another layer of oversight for the legislature.

9

 appeals or challenges a CMS action regarding a state plan are found in the Code of Federal
Regulations at 42 CFR § 430.18 and more specifically at Subpart D of 42 CFR Part 430.
Idaho Code § 56-267 requires Idaho Medicaid to submit a proposed state plan amendment
to CMS within 90 days. No expansion of Medicaid eligibility will occur without completion of
this process. Therefore, there is no impermissible delegation.
3.

Idaho Code § 56-267’s Medicaid eligibility expansion will not occur unless the
legislature appropriates necessary funds.

Medicaid is an optional program designed to encourage states to accept federal funds to
cover medical services for blind, disabled, elderly, and needy families with dependent children.
States have the ability to opt in or out of Medicaid at any time, but opting in requires states to
provide a match of federal funds. As Petitioner has noted, Idaho is required to provide a “match”
of 10% funding, while the federal government provides 90% of the funding.
The expansion of Medicaid eligibility permitted by section 56-267 requires an
appropriation to fulfill the state match portion of Medicaid. Under Article VII, § 13, of the Idaho
Constitution, money can be drawn from the Idaho treasury only through an appropriation made by
law. Thus, no expansion of Medicaid eligibility will occur in Idaho unless the legislature
appropriates the necessary additional funds.
If the legislature does appropriate the funds necessary to implement section 56-267, its
oversight and involvement will not end there. Each year, Idaho’s continued participation in
Medicaid, including any expansion, requires an annual appropriation. Each year, the State’s
Medicaid Division within the Department of Health and Welfare receives an appropriation to
continue offering Medicaid services and programs within Idaho. See H. 695, Appropriations –

10

 Health and Welfare – Medicaid (2018); S. 1174, Appropriations – Health and Welfare – Medicaid
(2017); S. 1391, Appropriations – Health and Welfare – Medicaid (2016).9
4.

Petitioner’s claims are not justiciable because they are purely hypothetical.

Petitioner’s claims rest upon a series of “what ifs.” In order for a case to be justiciable, it
must rest on a definite or concrete premise that touches on legal relations of the parties as opposed
to advising on what the law would be based on a hypothetical set of facts. See Haight, 163 Idaho
at 391, 414 P.3d at 213 (citing State v. Rhoades, 121 Idaho 63, 69, 822 P.2d 960, 966 (1991)).
Much of Petitioner’s brief is dedicated to two hypothetical scenarios: (1) What if the federal
government increases the eligibility requirements from 133% of the poverty level to 153%?
(Petitioner’s Brief at 11); and (2) What if the federal match changes from 90% to 71%?
(Petitioner’s Brief at 12). Both of these hypotheticals are purely conjectural.
Both overlook two significant points as well. First, Petitioner’s hypothetical changes to
Medicaid in the wake of NFIB v. Sebelius would be considered optional for states to adopt because
they could be interpreted as an impermissible post-acceptance or retroactive condition. See 567
U.S. at 584. Second, if Medicaid were altered as provided for in the hypotheticals, the Secretary
of Health and Human Services would be prohibited from withdrawing existing Medicaid funds for
failure to comply with the requirements set out in such changes. Id. at 585. Any injury Idaho
might suffer under Petitioner’s hypotheticals is illusory at best.

9 Appropriations although not codified are law. They meet all constitutional requirements

for laws because they contain an enacting clause (Article III, § 1) having been passed by both
chambers (Article III, 15), and presented to the governor for signature (Article IV, § 10, § 11). In
this regard the Legislature never delegates its vested authority because the appropriation is an
annual new law with regard to Medicaid.

11

 Additionally, the Idaho legislature would be given the opportunity to review any
amendments through the annual appropriation process. Nothing within section 56-267 is beyond
review by the Idaho legislature.
The circumstances advanced by Petitioner are purely hypothetical and based on future
events that may or may not happen.

Additionally, through the appropriation process, the

legislature will be able to review the implementation of Idaho Code § 56-267. The hypothetical
harm Petitioner alleges will occur only if Congress acts and the Idaho legislature fails to act. No
evidence demonstrates the likelihood of either happening.10
D.

Section 56-267 is constitutional because it delegates no authority to the federal
government and prescribes specific terms under which the State may expand
Medicaid eligibility.
Even if the Court had original jurisdiction and determined that Petitioner has standing and

that his petition presents a real justiciable controversy, the petition has no merit. Petitioner relies
on the “non-delegation” doctrine, see Petition for Review at 2-3, but that doctrine is not implicated
by Idaho Code § 56-267.

10 Petitioner makes much of the Attorney General’s Certificate of Review indicating the

cooperative nature of the potential give and take between the State and federal government with
regard to the amended Medicaid Plan. Although there could be a dispute between the State and
federal government with regard to a plan amendment, the discretion with regard to continuation in
the Medicaid program ultimately resides with the State. If the federal government alters the criteria
for the provision of Medicaid services, the State, as instructed by NFIB v. Sebelius, has the option
to alter its offerings in accordance with the federal alterations. Although opting out may result in
the State forgoing some funding, the federal government cannot require compliance subject to
removal of all funding. The possible scenarios outlined in the Certificate of Review are
hypothetical, intensely fact dependent, and beyond the scope of the expansion outlined in Idaho
Code § 56-267. Any joint federal-state program entails a risk of disagreement between the two if
the federal government alters the program. Petitioner’s argument would prevent the State from
participating in any federal program. Such an extreme position is completely impractical and
contrary to the very concept of federalism and dual sovereigns.

12

 Petitioner contends that through the adoption of Idaho Code § 56-267, the people, standing
in the place of the Idaho legislature, have delegated legislative authority to the federal government
and Director of the Department of Health and Welfare. The prohibition against the delegation of
legislative power is rooted in the vesting clause of Article III, § 1: “The legislative power of the
state shall be vested in a senate and house of representatives.” This power is then extended to the
people through the initiative clause, “the people reserve to themselves the power to propose
laws. . . .” Id. This vesting of legislative power is reinforced through the application of Article II,
§ 1:
DEPARTMENTS OF GOVERNMENT. The powers of the government of this state are
divided into three distinct departments, the legislative, executive and judicial; and no
person or collection of persons charged with the exercise of powers properly belonging
to one of these departments shall exercise any powers properly belonging to either of
the others, except as in this constitution expressly directed or permitted.
In Idaho, to avoid a violation of the non-delegation doctrine:
[t]he legislature must itself fix the condition or event on which the statute is to operate, but
it may confide to some suitable agency the fact-finding function as to whether the condition
exists, or the power to determine, or the discretion to create, the stated event. The nature of
the condition is broadly immaterial.11
State v. Kellogg, 98 Idaho 541, 543, 568 P.2d 514, 516 (1977). Recognizing the practical reality
of government, the Court observed, “[i]n deciding whether a delegation is proper the court’s
evaluation must be ‘tempered by due consideration for the practical context of the problem sought
to be remedied, or the policy sought to be effected.’” Id.

11 In this regard, Idaho closely tracks with the federal “intelligible principle” standard. Federally,

courts have limited federal delegations to “lay down by legislative act an intelligible principle
to which the person or body authorized to act is directed to conform.” Whitman v. American
Trucking Associations, Inc, 531 U.S. 457 (2001) quoting J.W. Hampton, Jr., & Co. v. United
States, 276 U.S. 394, 409 (1928).

13

 In Kellogg, the Court rejected a claim that the legislature unconstitutionally delegated
authority to the Board of Pharmacy and the federal government to determine which drugs should
require a prescription. The statute in question merely defined the goal of regulating drugs “‘in the
interest of public health and safety.’” Id. at 544, 568 P.2d at 517. It left it up to the Board of
Pharmacy and the Commissioner of the Federal Food and Drug Administration to decide which
drugs to regulate. The Court acknowledged that the legislature wisely left implementation of the
act to those with the expertise necessary to understand a complex topic and best achieve the act’s
purpose. See id. It also recognized that it would be “‘unreasonable and impractical’” for the
legislature to specify all the details of agency action in such a situation. Id. (quoting American
Power & Light Co. v. SEC, 329 U.S. 90 (1946)). The Constitution is satisfied so long as the statute
“‘delineates the general policy, the public agency which is to apply it, and the boundaries of this
delegated authority.’” Id. Idaho Code § 56-267 easily exceeds this standard.12
The statute does not delegate any authority to the federal government. Idaho Code § 56267 allows for the expansion of Medicaid eligibility only under three specific conditions:
1. Individuals must be under 65;
2. Have a modified adjusted gross income less than 133% of federal poverty level; and
3. Not be otherwise eligible for coverage under Idaho’s current state plan.
Contrary to Petitioner’s suggestion, section 56-267 does not say that these conditions will
automatically change if Congress alters federal law. Section 56-267 does refer to “sections
1902(a)(10)(A)(i)(VIII) and 1902(e)(14) of the Social Security Act,” but that reference merely

12 Often non-delegation challenges are directed at legislative grants of rulemaking

authority.
Idaho’s system of legislative review of administrative rules, coupled with the
constitutional authority contained in Article III, § 29, likely operate to preclude a legal challenge
under the non-delegation doctrine because in Idaho, administrative rulemaking is never placed
beyond the review and reach of the Idaho legislature.

14

 acknowledges that the three statutory conditions are consistent with current federal law. If federal
law were to change one of the three criteria, Idaho law would not change with it unless the
legislature amended section 56-267.13 In sum, section 56-267 delegates no authority to the federal
government to make any future changes that would be binding on Idaho.14

13 The legislature might choose instead to opt out of the amended federal criteria. Although

that choice might require Idaho to forgo future Medicaid participation and funding, it would not
affect the federal government’s obligation to provide its share of funding for pre-amendment
services under Idaho Code § 56-267. See NFIB v. Sebelius 567 U.S. at 585 (Secretary cannot
withdraw existing Medicaid funds for failure to comply with expansion).
14Petitioner relies heavily on Idaho Savings & Loan Ass’n v. Roden, 82 Idaho 128, 350
P.2d 225 (1960). Roden has no application to this case. In Roden, the primary issue was whether
statutory provisions the trial court had found unconstitutional for delegating authority to the federal
government were severable from the rest of the statute. The Court held that they were not
severable, and thus reversed the trial court on that issue. The Court’s analysis did agree with the
trial court’s conclusion that the legislature unconstitutionally delegated authority to the federal
government because the Idaho statute at issue required Idaho savings and loan associations to
comply with future federal statutes and regulations enacted or adopted after the Idaho statute’s
effective date. See Roden, 82 Idaho at 134, 350 P.2d at 228.
This case is entirely different than Roden because section 56-267 does not incorporate
future changes to federal Medicaid eligibility law. It merely prescribes criteria that are consistent
with current federal law. Nothing in Idaho’s Constitution prohibits the legislature from adopting
concepts from current federal law when it legislates. Moreover, to the extent Roden held that it
was an unconstitutional delegation for a statute to incorporate federal law, that holding is
inconsistent with this Court’s more recent decisions. See, e.g., State v. Kellogg, 98 Idaho 541, 568
P.2d 514 (1977) (rejecting claim that it was an unconstitutional delegation for statute to incorporate
federal Food and Drug Administration’s determinations about which drugs should require a
prescription).
In fact, numerous Idaho statutes incorporate federal law, including future changes to that
law. E.g., Idaho Code §§ 33-2202 (authorizing State Board of Education to act as the “state board
for career technical education for the purpose of carrying into effect the provisions of the
federal act known as the Smith-Hughes act, amendments thereto, and any subsequent acts
now or in the future enacted by the congress affecting vocational education”); 33-2901, -2902,
and-2905 (acts permitting the University of Idaho to benefit from federal programs and
assenting to comply with not only current federal law but also future “acts amendatory thereof
and supplementary thereto”); 74-104(1) (incorporating federal law and regulations to
determine which records are exempt from disclosure under the Public Records Act). And
Idaho’s existing Medicaid program law incorporates federal laws to determine eligibility. See
Idaho Code § 56-254. If the Court were to accept Petitioner’s argument, all these laws and
many more would be unconstitutional.

15

 Looking at the second paragraph of Idaho Code § 56-267, there is similarly no delegation
of legislative authority:
(2) No later than 90 days after approval of this act, the department shall submit any
necessary state plan amendments to the United States Department of Health and Human
Services, Centers for Medicare and Medicaid Services to implement the provisions of
this section. The department is required and authorized to take all actions necessary to
implement the provisions of this section as soon as practicable.
The second paragraph allows for implementation of the three specific criteria defined in the first.
It directs the Department to submit “any necessary state plan amendments” to expand Medicaid
as prescribed in the first paragraph of the statute. It does not create additional discretion, but
instead directs the Department to work through the existing process for the provision of
Medicaid within the state of Idaho.
No language in Idaho Code § 56-267 authorizes or even purports to authorize the Director
to act beyond the scope of the legal authority granted by Idaho Code § 56-267. This provision
authorizes the Director to take the necessary steps to implement the expansion of Idaho’s Medicaid
program to only the specific individuals defined by the statute.15

15 Petitioner also frets over the language “all actions necessary to implement,” by somehow

inserting “the power to ignore any provision of law or federal waiver to the contrary.” Petition for
Review at 3. Petitioner arrives at this conclusion through his unexplained interpretation of the
introductory phrase, “Notwithstanding any provision of law or federal waiver to the contrary . . .
.” Petitioner unjustifiably inflates the meaning of “notwithstanding.” Notwithstanding is a catchall
provision whose supposed referent is unclear and possibly even nonexistent. In the instant case,
it is clear that “notwithstanding” is intended to override any obstacles in existence at the time of
adoption of Idaho Code § 56-267. In sum, it reflects the drafters’ ignorance of the comprehensive
law and seeks to account for it. It does not create any broader authority. As a statute, Idaho Code
§ 56-267 is on equal footing with all other statutes and may be subject to a subsequent
“notwithstanding” clause, a later in time statute enacted that repeals it in whole or part, or any
other legislative limitation. This clause merely permits the Department to move forward with
Medicaid expansion if any contrary law was on the books at the time of enactment, or a waiver
was in place that needs to be removed based on the updated plan amendment.

16

 To the extent that any discretion or authority is granted, such grant is checked by the
annual appropriation process. Medicaid receives its own annual appropriation from the Idaho
legislature; thus to the extent the state match is changed or altered, the legislature will be called
upon to review and determine whether to fund such altered criteria. There is no violation of the
non-delegation doctrine because no portion of Idaho Code § 56-267 is ever beyond the oversight
and review of the Idaho legislature.
Even absent this annual legislative oversight section 56-267 would be constitutional. The
justification this Court approved in upholding the deference in Kellogg applies with equal force
here. Medicaid is a complicated program, and the Department has special expertise developed
through its administration of the current Medicaid program. It makes great sense to task the
Department with implementing the steps necessary to accomplish Medicaid expansion in Idaho.
And section 56-267 delegates far less discretion than that in Kellogg. It does not leave eligibility
criteria to the Department’s discretion, but instead specifically prescribes those criteria. The law
merely directs the Department to take the necessary steps to implement those criteria, i.e., amend
the state plan to expand Medicaid eligibility as provided for in Idaho Code § 56-267(1), and then
submit the amended plan to CMS for approval. If the Department proposes administrative rules
to implement Medicaid expansion, it must present those rules to the legislature for its approval.
See Idaho Code § 67-5291.
It should be noted that Idaho Code § 56-267 is a consistent extension of the powers and
duties already granted to the Director of Health and Welfare to design and implement changes to
Idaho’s current Medicaid programs under Idaho Code §§ 56-202 and 56-253. If the Court were
to accept Petitioner’s impermissible delegation argument here, it would be tantamount to
declaring Idaho’s entire Medicaid program unconstitutional.

17

 In Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015), the United States
Supreme Court upheld the State’s discretion to not raise Medicaid reimbursement rates under
42 U.S.C. § 1396a(a)(30)(A). Private Medicaid providers sued in an effort to force Idaho to adopt
higher rates established by federal law. Id. at 1382. The State defended against the suit, because
as a federal-state cooperative program, the State retained the discretion whether to raise the rates.
The Court dismissed the suit. It noted that Spending Clause legislation such as the Medicaid Act
is a contract between the states and the federal government. Id. at 1387.

Under those

circumstances, states retain discretion and may choose to comply or not comply with the changes
made by the federal government. The Secretary of Health and Human Services may notify the
state it is out of compliance and subject to penalties under the Act, id. at 1386-87, but no one can
force a state to comply with changes in the federal program. Contrary to Petitioner’s claim, the
State of Idaho has established its ability to retain discretion over its participation in Medicaid
without unnecessarily ceding authority to the federal government. Petitioner cannot demonstrate
any set of circumstances under which the state of Idaho will not continue to fully exercise its
sovereign discretion within the federal-state cooperative Medicaid program.
As the United States Supreme Court observed in addressing Medicaid expansion, some
states may decline to participate, some may voluntarily sign up, but the question is one for each
individual state to determine. NFIB v. Sebelius, 567 U.S. 519, 587 (2012). As an optional
program, the Idaho legislature never cedes either its authority or discretion to the federal
government or any agency with regard to Idaho’s participation in Medicaid.

Contrary to

Petitioner’s assertion, the Idaho legislature weighs the State’s ongoing participation in the federal
Medicaid program each and every year, and it will continue to do so in the future.

18

 E. The Court Should Award Respondent Reasonable Attorneys’ Fees Because Petitioner
Brought This Action “Frivolously, Unreasonably or Without Foundation” Within the
Meaning of Idaho Code § 12-121.
Idaho Code § 12-121 authorizes the Court to award “reasonable attorney’s fees to the
prevailing party” if it determines “that the case was brought . . . frivolously, unreasonably or
without foundation.” In determining whether to award fees under section 12-121, this Court
examines “the ‘entire course of the litigation . . . and if there is at least one legitimate issue
presented, attorney fees may not be awarded even though the losing party has asserted other factual
or legal claims that are frivolous, unreasonable, or without foundation.’” Steuerer v. Richards,
155 Idaho 280, 287, 311 P.3d 292, 299 (2013) (quoting Michalk v. Michalk, 148 Idaho 224, 235,
220 P.3d 580, 591 (2009)).
Petitioner’s action meets this standard because it is frivolous, unreasonable, and without
foundation on several levels. It is well-settled law that the legislature cannot expand the Court’s
original jurisdiction, and this Court has already determined that Idaho Code § 34-1809(4) violates
this principle. Thus, there was no valid basis for Petitioner to use section 34-1809(4) to invoke
the Court’s original jurisdiction. And Petitioner has suffered no particularized injury, so he lacks
standing apart from the flawed section 34-1809(4), and his petition raises only speculative, nonjusticiable concerns. Even absent all these jurisdictional defects, the petition is meritless. Idaho
Code § 56-267 does not delegate any authority to the federal government as Petitioner contends.
Nor does it unlawfully delegate legislative authority to the Department of Health and Welfare.
Any delegation to the Department is well within established law and consistent with the existing
Medicaid program. Thus, the petition raises no legitimate issues.

19

 IV.

CONCLUSION

The Court should dismiss the petition because it lacks original jurisdiction and Petitioner
lacks standing. Even absent those fatal flaws, the Court should reject the petition. It raises only
non-justiciable hypothetical concerns, and it fails to establish that Idaho Code § 56-267
impermissibly delegates legislative authority. The Idaho legislature will continue to retain all
authority to fund and direct the administration of the Medicaid program; the mere acceptance of
additional monies to expand the number of Idahoans eligible to receive Medicaid does not and will
not strip the legislature of that authority.
DATED: December 21, 2018.
Respectfully submitted,
LAWRENCE G. WASDEN
Attorney General
BRIAN P. KANE, ISB# 6264
Assistant Chief Deputy Attorney General
STEVEN L. OLSEN, ISB #3586
Chief of Civil Litigation
W. SCOTT ZANZIG, ISB #9361
Deputy Attorney General

/s/ W. Scott Zanzig
W. SCOTT ZANZIG, #9361
Deputy Attorneys General
Statehouse, Room 210
Boise, ID 83720
Attorneys for Respondent

20

 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 21st day of December, 2018, a true and correct copy of the
foregoing document was filed with the Clerk of the Court using the iCourt E-File system which
sent a Notice of Electronic Filing to the following person(s):
Bryan D. Smith
Smith, Driscoll & Associates, PLLC
bds@eidaholaw.com
Attorney for Petitioner

Kenneth R. McClure
David R. Lombardi
Jeffrey W. Bower
krm@givenspursley.com
drk@givenspursley.com
jeffbower@givenspursley.com
Attorneys for Intervenors-Respondents

/S/ W. Scott Zanzig
W. SCOTT ZANZIG
Deputy Attorney General

21

 APPENDIX 1

Tfi e

Ofice Qf tfi e

ggvernor
State Capitaf

Executive ®epartment

@0132

@1’0C[amatlon

State qflcfafio

WHEREAS,

the Secretary ofStaz‘e

and the

State

Board ofCanvassers have canvassed the

November 6, 2018 concerning Proposition Two (An initiative t0 provide that the
amend its state plan t0 expand Medicaid eligibility t0 certain persons); and,

votes cast 0n
State shall

WHEREAS,
23 7,567 “N0

”

the results

that

saidproposifion has received 365, I 07 “Yes

”

votes,

votes,

Acting Governor offhe State ofldaho, pursuant
Idaho Code, d0 hereby proclaim that Proposition Two has been passed by

NOW, THEREFORE,
t0 Section

Show

34-18] 3,

I,

BRAD LITTLE,

the people offhe State ofldaho.

IN WITNESS WHEREOF, I have hereunto

set

my

hand and caused t0 be aflixed the Great Seal offhe
z'n Boise on this 20th
State 0f Idaho at the Capitol
day 0f November, in the year 0f our Lord two
thousand and eighteen and 0f the Independence 0f
the United States ofAmerica the two hundredforlythird and offhe Statehood ofldaho the one hundred

kw

twemy-ninth.

BRADIYTT’LE

ACTING G0 VERNOR

l

LA WERENCE DENNEY
SECRETARY 0F STATE

 APPENDIX 2

Case 4:09-cv-00162-BLW Document 8-5

Filed 04/07/10 Page 2 of 4

In the Supreme Court of the State
State of
0f Idaho
IN THE MATTER OF THE PETITIONI
PETITION/
ACTION TO DETERMINE THE
CONSTITUTIONALITY OF IDAHO CODE
67'429B AND 67-429C,
67—429C,
SECTIONS 67-429B
ENACTED IN THE INDIAN GAMING
INITIATIVE, PROPOSITION ONE.

)
)
)
)
)
)

---------------------------------------------------------MAXINE T.
T. BELL; LAIRD NOH; PAUL

)

)
CHRISTENSEN; and BRYAN FISCHER,
)
)
Petitioners,
Petitioners,
)
)
V.
v.
)
)
PETE T.
T. CENARRUSA, in
as Idaho
his capacity
in his
Idaho )
capacity as
0f State,
Secretary
)
in
State, DIRK KEMPTHORNE, in
Secretary of
)
his capacity
as Idaho
his
Idaho Governor,
L.
Governor, ERNEST L.
capacity as
STENSGAR, and
and THE COALITION FOR
)
INDIAN SELF RELIANCE, real
parties in
)
real parties
in
interest,
)
interest,
)
Respondents.
Respondents.
)

ORDER
ORDER
NO. 29226

Ref.
02 8—385
Ref. No. 02S-385

vvvvvvvvvvvvvvvvvvvvvv

Petitioners have
filed a
a petition/action
to exercise
asking this
The Petitioners
have fiied
petition/action asking
this Court to
exercise original
original

or inherent
inherent jurisdiction
jurisdiction
jurisdiction or
jurisdiction to
to determine
detennine the
ofIdaho
the constitutionality
constitutionality 0f
Idaho

Code §§
67—429B
§§ 67-429B

67—429C. The Petitioners
Petitioners assert
assert several
several grounds upon which
and 67-429C.
that this
Which they
this Court
Court has
has
they contend that
'

original
jurisdiction to
to hear
their petition.
original jurisdiction
hear their
petition.
that this
has original
this Court has
First,
they contend
contend that
jurisdiction based npon
portion of
original jurisdiction
that portion
First, they
upon that
of

“Any qnalified
34—1809 that
Idaho Code §§ 34-1809
provides: "Any
the state
Idaho
qualified elector
that provides:
elector of
state ofIdaho
ofthe
of Idaho may,
may,

at
at any
any

the attorney
general has
time
time after
bring an
the Supreme
afier the
issued a
has issued
certificate of
attorney general
review, bring
a certificate
of review,
action in
Supreme
an action
in the

Court’s original
initiative.” This
the constitutionality
determine the
Court to
to detennine
This Court's
jurisdiction is
constitutionality of
0f any
original jurisdiction
is
any initiative."

Coun’s original
set forth
the Constitution.
Constitution. The legislature
set
has no power to
forth in
in the
to extend
legislature has
this Court's
extend this
original
jurisdiction.
jurisdiction. Neil
Neil

’n, 32
v. Public
Utilities Comm 'n,
32 Idaho
v.
Public Utilities
P. 271
271 (1919).
Idaho 44,178
44, 178 P.
Petitioners
(1919). The Petitioners

contend,
that purswint
to Article
pursuant to
Article III,
0f the
however, that
the Idaho
Idaho Constitution,
the legislature
contend, however,
has
Constitution, the
legislature has
III, §
1, of
§ 1,
the
the

to grant
this Court
power to
grant this
Court original
jurisdiction to
to determine
detennine the
the constitutionality
original jun'sdiction
constitutionality of
initiatives.
0f initiatives.

 Case 4:09-cv-00162-BLW Document 8-5

Filed 04/07/10 Page 3 of 4

“legal voters
The portion
portion of
npon which
the Petitioners
rely states
voters
states that
Petitioners rely
Which the
that "legal
Article III,
of Article
1U, §
1, upon
§ 1,
in such
may, under
under such conditions
conditions and in
as
such manner as
may,

acts of the
provided by
the legislature,
legislature,
may be provided
by acts

at a
the vote
initiate
submitted to
legislation and cause
to be submitted
to the
the people at
cause the
vote of the
desired legislation
initiate any
the same to
any desired

rejection.” They
general
authorizes the
the
contend that
that this
this provision
their approval
provision authorizes
election for
general election
approval or
for their
or rejection."
They contend
is
legislature
jurisdiction to
this court
regarding initiatives.
court in
matters regarding
t0 grant
in matters
original jurisdiction
initiatives. There is
legisiature to
to this
gant original

so construed.
It
absolutely
nothing in
the Wording
wording of this
this provision
provision that
that could reasonably
construed. It
in the
reasonably be so
absolutely nothing
the legislature
merely authorizes
legislature
authorizes the
merely

to
the voters
to determine
voters may
conditions and manner in
the conditions
in which the
determine the

process.
exercise
to propose
propose laws
by the
exercise the
laws by
initiative process.
the initiative
the power to

Petitioners next
this Court has
jurisdiction to
that this
to hear
petition
next contend
hear their
The Petitioners
has original
contend that
original jurisdiction
their petition
pursuant to
that portion
portion of Article
Article V,
pursuant
to that
V, §
§

“The
9,
the Idaho
Idaho Constitution,
provides: "The
Constitution, which provides:
9, of the

certioran',
Supreme Court shall
jurisdiction to
t0 issue
issue writs
writs of
also have original
shall also
original jurisdiction
0f mandamus,
handanms, certiorari,

to the
prohibition, and habeas
habeas corpus,
proper to
of its
complete exercise
exercise of
and all
all writs
writs necessary
or proper
the complete
its
prohibition,
necessary or
corpus, and

by their
requesting aa writ
writ ofprohibition.
appellate
jurisdiction." They
They argue
appellate jurisdiction.”
are requesting
argue that
ofprohibition.
petition they
that by
their petition
they are
"arrests the
proceedings of
board or
prohibition “arrests
A writ
writ of prohibition
the proceedings
or
of any
corporation, board
tribunal, corporation,
any tribunal,
person,
person,

when such proceedings
jurisdiction of such
are without
the jurisdiction
When
proceedings are
without or
or in
excess of the
such tribunal,
tribunal,
in excess

I

7~401 (1998).
corporation,
or person.”
person." IDAHO
IDAHO CODE §
declaration
seek a
Petitioners seek
a declaration
corporation, board or
(1998). The Petitioners
§ 7-401

that
that

are not
to arrest
Idaho
are unconstitutional.
unconstitutional. They are
seeking to
arrest
Idaho Code §§
not seeking
§§ 67-429B and 67-429C are

tribunal, corporation,
corporation, board
board or
person.
the proceedings
proceedings of
or person.
the
0f any
any tribunal,
that this
The Petitioners
Petitioners next
next contend
has original
jurisdiction under the
original jurisdiction
the Uniform
contend that
this Court
Court has

Declaratory Judgment Act.
jurisdiction to
a
Act. This
This Court
Cour: has
has jurisdiction
to grant
Declaratory
grant a

summary judgment only
in
only in

as granted
the Constitution.
connection with
with the
jurisdiction as
the proper
proper exercise
exercise of its
connection
granted by
Constitution
original jurisdiction
its original
by the

See
See

v. Arnell,
Arnell, 117 Idaho 660,
P.2d 410 (1990).
not have original
jurisdiction to
to
Mead v.
original jurisdiction
660, 791 P.2d
(1990). We do not

hear actions
judgment that
that are
unconnected With
with our
jurisdiction under
seeking a declaratory
hear
actions seeking
are unconnected
our jurisdiction
declaratory judgment
“to issue
Article
issue writs
writs
Article V,
V, §§ 9,
9, "to

Finally, Petitioners
Petitioners
Finally,

corpus.”
of
mandamus, certiorari,
certiorari, prohibition,
prohibition, and habeas
habeas corpus."
ofmandamus,

contend
jurisdiction to
this
contend that
has original
that this
this Court
hear this
Court has
original jurisdiction
to hear

declaratory judgment action
pursuant to
action pursuant
to Article
the Idaho
Idaho Constitution,
Article V,
Constitution,
declaratory
V, §
2, of the
§ 2,
provides:
provides:

which

“The judicial
"The
judicial power of the
the state
be vested
vested in
the trial
court for
state shall
shall be
in a
trial of
a court
for the
of

other courts
impeachments, aa Supreme Court,
district courts,
courts irrferior
inferior to
Court, district
courts, and such other
to the
the Supreme
legislature.” It
Court
however, which define
the legislature."
established by
Court as
as established
It is
is §§
9 and 10
10 of
of Article
Article V,
define
V, however,
by the
§§ 9

‘1“

 Case 4:09-cv-00162-BLW Document 8-5

Filed 04/07/10 Page 4 of 4

Court’s original
original jurisdiction.
this
jurisdiction. Dewey v4
v. Schreiber
Schreiber Implement Co.,
P. 921
this Court's
CoA, 12 Idaho 280,85
280, 85 P.
in all
all
construed to
provide that
that this
this Court
has original
jurisdiction in
(1906).
original jun'sdiction
Court has
2 were construed
if §
to provide
Indeed, if
(1906). Indeed,
§ 2
original
section do we have original
neither section
superfluous. Under neither
cases,
10 would be superfluous.
cases, then
then §§
9 and 10
§§ 9
Petitioners’ petition/action.
the Petitioners'
jurisdiction to
to hear
hear the
petition/action. Therefore,
after
jurisdiction
Therefore, after

due consideration,
consideration,

determine the
the petition/action
to detennine
petition/action to
IT
the constitutionality
constitutionality of
that the
IT IS
IS HEREBY ORDERED that
the Indian
Proposition One,
enacted in
Idaho
Indian Gaming Initiative,
Initiative, Proposition
Idaho Code §§
in the
§§ 67-429B and 67-429C, enacted
this Court does not
original
not have original
without prejudice
be,
hereby is,
prejudice because this
be, and hereby
is, DISMISSED without

~

matter.
jurisdiction
jurisdiction to
to decide
decide the matter.

Zfiday

of
DATED this
this '<;:!!d-dayof

C/

~.

2003.
2003.

,

the Supreme Court
By Order of
of the

WALK
1

Adv

da Copple Trout, (111%.1

tice

ATTEST:
Stephen W. Kenyon,
I, Stephen
of the
Clerk 01
mg Supreme
Supreme Court
Kenyon, Clerk
Court
of the
the State
oi Idaho,
State 01
01
the
Idaho, do hereby
sanity thet
that the
hereby certify
above'is
is a true
true and
above
01
the
..
O"-dey
and correct
correct copy
of
the
copy
entered in
entered
in the
the above
above entitled
entitled cause
now on
on
and now
cause and
in my office.
record
office.
record in
M 0%
'(lIITNESS
hand and
and tl!e
Seat of
of this
wrrNess my hand
mis COJ.!rt'f1j·\o,,"
Connifl...
me seal
l,

rec}

cc:
cc:

rick C. Lyon, Clerk

Counsel
Record
Counsel of Record

STEPHeN W. KENYON

By:~""-V'--'

W<2A.c:f>

Clerk
Deputy

 IV.

CONCLUSION ............................................................................................................20

ii

 Steuerer v. Richards, 155 Idaho 280, 311 P.3d 292 (2013) .......................................................... 19
Texas v. United States, No. 4:18-cv-00167-O, 2018 WL 6589412 (N.D. Tex. Dec. 14, 2018) ..... 8
Troutner v Kempthorne, 142 Idaho 389, 128 P.3d 926 (2006) ....................................................... 6
Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001) .................................... 13
Statutes
Idaho Code § 7-202......................................................................................................................... 2
Idaho Code § 12-121................................................................................................................. 3, 19
Idaho Code § 33-2202................................................................................................................... 15
Idaho Code § 33-2901, - 2902, and -2905 .................................................................................... 15
Idaho Code § 34-1809(3) ................................................................................................................ 4
Idaho Code § 34-1809(4) ....................................................................................................... passim
Idaho Code § 34-1813..................................................................................................................... 5
Idaho Code § 56-202..................................................................................................................... 17
Idaho Code § 56-202(a) .................................................................................................................. 8
Idaho Code § 56-202(d) .................................................................................................................. 9
Idaho Code § 56-203(1-7, 9)........................................................................................................... 9
Idaho Code § 56-253..................................................................................................................... 17
Idaho Code § 56-254..................................................................................................................... 15
Idaho Code § 56-267.............................................................................................................. passim
Idaho Code § 56-267(1) ................................................................................................................ 17
Idaho Code § 67-5291................................................................................................................... 17
Idaho Code § 74-104(1) ................................................................................................................ 15
42 U.S.C. § 1396 (1976 ed. and Supp. II)....................................................................................... 7

iv