Gem State Roundup

Legislature asks to intervene in rulemaking case at the Idaho Supreme Court

By: - November 3, 2023 1:26 pm
Idaho State Capitol building in Boise

The Idaho State Capitol building in Boise on March 20, 2021. (Otto Kitsinger for Idaho Capital Sun)

This story was first published on Idaho Reports on Nov. 3, 2023.

The Idaho Legislature has asked to intervene in the case involving the Idaho State Athletic Commission asking for a petition to the Idaho Supreme Court.

The Idaho State Athletic Commission and the Idaho Division of Professional Licenses filed a petition with the Idaho Supreme Court on Oct. 6, claiming certain provisions of the state’s new rulemaking process are unconstitutional. The case was scheduled for oral arguments in the Supreme Court on Nov. 20.

The commission takes issue with HB 206, which cycles administrative rule approval over the course of eight years and gives lawmakers the final say over whether those rules go into effect. The bill passed the Legislature in March on party lines and went into effect on July 1, with proponents arguing the change allows lawmakers to spread work out over time.

The petitioners argue the new statute prevents state administrative agencies from creating enforceable rules until lawmakers approve them, as opposed to the previous system in which rules went into effect as soon as individual agencies adopted them.

In filings submitted to the court on Thursday, Senate Pro Tempore Chuck Winder and House Speaker Mike Moyle both declared in affidavits that they did not know about the commission’s complaint until Oct. 30. Terri Kondeff, Director of the Legislative Services Office, also says she did not know about the filing until Oct. 30.

Legislative leadership is asking that the Supreme Court vacate the Nov. 20 arguments and reschedule for December, to allow for “the Legislature’s meaningful participation.” On Friday, the court issued an order rescheduling arguments for December.

Private law firm Smith and Malek, PLLC, is representing the legislature in the motion.

“Though the Attorney General’s Office was properly served a copy of the Petition and supporting materials on October 6, 2023, it failed to communicate the existence of the instant matter to the Legislature or its points of contact in any way,” Smith and Malek PLLC attorney Kolby Reddish wrote in the brief supporting the request.

The state’s administrative rulemaking process is a long-debated topic in the Legislature. Administrative rules have the same weight as the law, but do not require the same voting process as lawmaking. Those rules cover everything from provisions of parole to Idaho Fish and Game hunting and fishing regulations to agriculture inspections.

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