The Idaho Statesman is reporting that an attorney with the Idaho State Appellate Public Defender’s Office is alleging that the Idaho Legislature violated the Idaho Constitution when the Legislature authorized counties to create adult misdemeanor probation offices. In her memorandum, attorney Sara Thomas alleges that the Legislature usurped the exclusive authority of the Idaho Department of Correction conferred by the Idaho Constitution, Article X, § 5.
For the sake of discussion, assume she is correct. Who is responsible for checking for constitutional conflicts in proposed legislation before it is passed? Would it surprise you to learn that Idaho’s judges, prosecuting attorneys, and some other attorneys involved in misdemeanor probation cases were apparently ignorant of the Idaho Constitution? If you agree that the existing legislation allowing county administration of misdemeanor probation, would you then be in favor of simply continuing to ignore the Idaho Constitution? If not, how would you correct the problem?
1.Who is responsible for checking for constitutional conflicts in proposed legislation before it is passed?
The legislative judicial review teams? I have always wondered what they do, they are all judges. Nobody really knows when they meet and there are no records if they do.
Legislative Review Teams
District Judges
Hon. Renae Hoff
Hon. Michael McLaughlin
Hon. John Stegner
Hon. Barry Wood
Hon. Gregory Moeller
Hon. Stephen Dunn
Hon. Steve Verby
Hon. Benjamin Simpson
Magistrate Judges
Hon. Barry Watson
Hon. Gaylen Box
Hon. Ryan Boyer
Hon. Gary DeMeyer
Hon. David Epis
Hon. R. Ted Israel
Hon. Gregory Kalbfleisch
Hon. James A. Schiller
2.Would it surprise you to learn that Idaho’s judges, prosecuting attorneys, and some other attorneys involved in misdemeanor probation cases were apparently ignorant of the Idaho Constitution?
No, they depend on the legislative judicial review team that nobody knows what they do.
3.If you agree that the existing legislation allowing county administration of misdemeanor probation, would you then be in favor of simply continuing to ignore the Idaho Constitution? If not, how would you correct the problem?
No. I want transparency between all branches of government and that includes meeting dates and minutes documented so the public knows WTH is going on. I also want an explanation on what the legislative review teams do. Who actually violates what? Do we need the Legislature or not?
Comment by Stebbijo — October 12, 2011 @ 5:48 pm
There is no authority for checking on constitutional conflicts in legislating as it is being formulated as you suggest. Nor should there be.
Our constitutional form of government establishes and divides power among three equal branches; the lawmaking, the administration, and the judicial.
Any enactment by the legislature is presumed constitutional until it is declared otherwise by the Supreme Court.
Some may consul legislators about concerns of constitutional integrity, such as the Attorney General or lawyers on the staff of the legislature or any person, but opinions by any and all of these are only opinions.
Comment by Gary Ingram — October 12, 2011 @ 8:53 pm
Maybe Gary, you can lend us some insight? Why does the Idaho Supreme Court appoint a legislative review team?
I became interested in this committee when I got a hold of the administrative conference committee minutes last April. Here is a portion of that document.
It doesn’t sound like the branches are separate to me – the Judicial Branch is heavy on the side of legislation.
Comment by Stebbijo — October 13, 2011 @ 7:22 am
Here is the rest of it – anyone know when and where these meetings occur or have occured?
5. District Meetings to Review Legislation
Patti Tobias and others will be available to meet in
each of the judicial districts, to ensure the effective implementation of
new legislation.
Comment by Stebbijo — October 13, 2011 @ 11:19 am