When a public vote isn't legal

In the Coeur d'Alene election for mayor and council, the major campaign pledge of one set of candidates is that, if elected, they will have a public vote on any major controversial issue: "Let the people decide."

In 1983, as attorney for the City of Coeur d'Alene, I argued before the Idaho Supreme Court that it was lawful and right for the city to set an election for a public vote upon a major controversialissue; we lost. Gumprecht v. City of Coeur d'Alene, 104 Idaho 615, (1983).

Last year, the advocates petitioning to recall the mayor and three council members proclaimed their major grievance as the refusal of these four to allow a public vote upon the McEuen Park Plan.

The Idaho Supreme Court, interpreting the Idaho Constitution and Idaho Code, has in three important cases held that neither a city nor a county can hold an election on any issue except on bonds.

The Gumprecht case had its origin when a group of us, using the name "Save Our Shores," submitted and successfully circulated an initiative to require setbacks and height limitations around the city lakeshore. The city set the election for May 1982.

A few days before the election, opponents filed a Petition for Writ of Prohibition directly in the Idaho Supreme Court which was immediately granted to prohibit the election.

City Attorney Bill McFarland asked me to represent the city at the hearing set in the next year, so I filed briefs and made the unsuccessful argument. The opinion in Gumprecht held that the city did not have jurisdiction to allow an election and quoted from Perrault v. Robinson, 29 Idaho 267, (1916):

"The question here is not, as in most of the cases cited, may an election which is provided for by law be restrained, but is, have the mayor and council of Boise jurisdiction to call an election which is unauthorized by law and thereby involve the taxpayers of that city in a useless expense. . .? 29 Idaho at 272 ." 104 Idaho at 617.

After his slate of candidates had filed, Jeff Ward, representing the Kootenai County Reagan Republicans, was quoted in the Sept, 14 Spokesman Review as advocating a public vote:

"The question is whether or not the people should have a vote in large public expenditures - major decisions that change the character of the city," he said. "I think that's one of the huge issues that's going to be brought up."

That door was slammed shut by a unanimous Idaho Supreme Court in Weldon v. Bonner County Tax Coalition, 124 Idaho 31, (1993).

The Bonner County Commissioners had passed a resolution setting the aggregate ad valorem property tax for 1993 at a higher level than 1992. The Bonner County Tax Coalition, a group with objectives similar to the Reagan Republicans, filed a referendum upon the resolution and an initiative with a lower budget both to be set for public vote.

Bonner County's elected officials filed suit in district court seeking and obtaining judgment holding that the county did not have jurisdiction to allow a public vote. On appeal, the Idaho Supreme Court affirmed the district court prohibiting a public vote.

"We reject the Coalition's argument that the budget process is a law and is a legislative act. It is neither an 'act' or a 'measure,' and, therefore, we hold that Idaho's referendum and initiative laws are not proper means to reject and/or implement a county budget process."124 Idaho at 38 - 39.

Adoption of a budget which includes "large public expenditures" is always an administrative act that is never subject to a public vote.

Some years back, I represented a local Audubon Society Chapter in a suit to bar expansion of a Jerome County airport as harming birds. The district judge in an oral opinion from the bench ruled that an advisory vote by the county favoring the airport was illegal.

The most recent case is City of Boise v. Keep The Commandments Coalition, 143 Idaho 254, (2006) which involved an initiative to prevent removal of the plaque of Ten Commandments from Julia Davis Park. The majority opinion relied on recent state-wide initiatives and referendum cases holding that such were not ripe for judicial review upon filing, but only if passed after vote. Weldon, Gumprecht and Perrault had been rulings upon initial filing rather than after passage. The Court overruled these cases, but only as to timing. The substance, lack of jurisdiction and non-legislative remained intact on the merits. The commencement initiative was defeated at the special election.

Justice Trout in dissent urged a present ruling and outlined all of the reasons that the initiative, if enacted, would be void. The city would be held to be in excess of its jurisdiction in holding an election; the initiative was administrative not legislative. 143 Idaho at 258-259.

The McEuen Park Plan, all budgeting issues including employee salaries and every other issue raised in the recall campaign were administrative, not subject to public vote. Justice Trout cited a Kansas case, City of Wichita v. Kansas Taxpayers Network, Inc., 255 Kan. 534, 874 P.2d 672 (1994) holding that an initiative may be characterized as administrative even through involving establishment of policy.

These were all initiative or referendum cases now held not to be subject to judicial review until passed. Any city council resolution calling for a public vote upon any issue except bonding would, immediately after adoption, be met by a petition for a Writ of Prohibition to prevent a public vote.

Those city candidates advocating public votes on major issues are promising what is legally prohibited. That is what the Idaho Supreme Court told me and the City of Coeur d'Alene in 1983.