In the 1990 Idaho general election, 21 members of the Republican party and 21 members of the Democratic party were elected as the 42 members of the Idaho State Senate in the 51st Idaho Legislature. For the first time in the history of this state, the members of the Senate were equally divided between two political parties.
Following the swearing-in of the Senators-elect on December 6, 1990, one of the first actions taken by the Senate was the selection of the President Pro Tempore. First, the Democrats placed in nomination for this position the name of Senator Bruce L. Sweeney. The vote of the Senators ended in a 21-21 division. Lieutenant Governor C.L. Otter then cast his vote in opposition to the election of Senator Sweeney. The Republicans then placed in nomination for the position the name of Senator Michael Crapo. This vote also ended in a 21-21 tie. Lieutenant Governor Otter then cast the tie breaking vote in favor of Senator Crapo. The members of the Democratic party, through their leader Senator Sweeney, objected to the vote of Lieutenant Governor Otter upon the basis that he is prohibited by the Idaho Constitution from voting on organizational matters of the senate, including the election of its President Pro Tempore. The objection was overruled by the Lieutenant Governor and Senator Crapo was declared elected President Pro Tempore.
On December 7, 1990, the 21 Democratic senators filed a verified petition asking for extraordinary relief in the nature of a writ prohibiting Lieutenant Governor Otter from further involvement in the organization of the Idaho Senate and commanding the Republican senators to comply with the Idaho Constitution as interpreted by petitioners. The petition further requests a writ permanently and absolutely prohibiting Lieutenant Governor Otter from voting on "organizational matters" when a tie vote occurs.
Pursuant to an order of this Court, the respondents filed a response to the verified petition admitting that the Lieutenant Governor cast the tie breaking vote in electing Senator Crapo as President Pro Tempore. The respondents agreed with the petitioners that this Court has jurisdiction to hear this matter and that the issue is of public interest; however, they asserted that petitioners have not met their burden to support the issuance of an extraordinary writ. Further, respondents asserted that the question whether the President of the Senate may cast a tie-breaking vote is an improper subject for judicial review. On December 21, 1990, oral argument was presented to the Court by counsel for the petitioners and respondents.
Petitioners request that this Court accept original jurisdiction in this matter and grant extraordinary relief. This Court has the power to accept original jurisdiction in this matter and issue extraordinary relief in the form of a writ of mandamus, a writ of prohibition, or any writ necessary for the complete exercise of its appellate jurisdiction. Idaho Const. art. 5, § 9. We have exercised this jurisdiction in the past and have provided relief where appropriate. Cowles Publishing Co. v. Hutchinson, 118 Idaho 753, 800 P.2d 640 (1990) (writ issued to require magistrate court to open preliminary hearing to the public); Idaho Falls Redevelopment Agency v. Countryman, 118 Idaho 43, 794 P.2d 632 (1990) (writ denied); Eismann v. Miller, 101 Idaho 692, 619 P.2d 1145 (1980) (writ issued to prevent frivolous pro se filings); Sierra Life Ins. Co. v. Granata, 99 Idaho 624, 586 P.2d 1068 (1978) (writ issued to compel district court to assume jurisdiction); Mahler v. Birnbaum, 95 Idaho 14, 501 P.2d 282
Does the Lieutenant Governor violate the separation of powers clause of the Idaho Constitution by voting during the Senate's organizational session when the vote is equally divided?
STANDARD OF REVIEW
Petitioners' request for relief requires an interpretation and construction of the Idaho Constitution. We note at the outset that "[t]he general rules of statutory construction apply to constitutional provisions generally." Westerberg v. Andrus, 114 Idaho 401, 403, 757 P.2d 664, 666 (1988); Engelking v. Investment Board, 93 Idaho 217, 221, 458 P.2d 213, 217 (1969) ("[T]he general rules of statutory construction apply to the amendment of a constitution as well as to constitutional provisions generally"); Lewis v. Woodall, 72 Idaho 16, 18, 236 P.2d 91, 93 (1951) ("[T]he statutory rules of construction apply to the interpretation of constitutional provisions"); Keenan v. Price, 68 Idaho 423, 437, 195 P.2d 662, 670 (1948) ("[G]eneral principles of statutory construction apply to the interpretation of constitutions"); Higer v. Hansen, 67 Idaho 45, 52, 170 P.2d 411, 415 (1946) ("The same rules apply to the construction of provisions of the Constitution as apply to construction of statutes"); Phipps v. Boise St. Car Co., 61 Idaho 740, 747, 107 P.2d 148, 151 (1940) ("The general provisions of statutory construction apply to the interpretation of constitutions").
When called upon to review legislation, this Court has stated:
State, Dept. of Law Enforcement v. One 1955 Willys Jeep, 100 Idaho 150, 153, 595 P.2d 299, 302 (1979). Where a statute or constitutional provision is clear we must follow the law as written. Moses v. State Tax Com'n, 118 Idaho 676, 799 P.2d 964 (1990); State v. Ankney, 109 Idaho 1, 704 P.2d 333 (1985); Herndon v. West, 87 Idaho 335, 393 P.2d 35 (1964); John Hancock Mutual Life Ins. Co. v. Neill, 79 Idaho 385, 319 P.2d 195 (1957). Where the language is unambiguous, there is no occasion for the application of rules of construction. Airstream, Inc. v. CIT Financial Serv., Inc., 111 Idaho 307, 723 P.2d 851 (1986); Ottesen v. Board of Com'rs of Madison County, 107 Idaho 1099, 695 P.2d 1238 (1985); Worley Highway Dist. v. Kootenai County, 98 Idaho 925, 576 P.2d 206 (1978).
We note the venerable words of Chief Justice Marshall in Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 185, 6 L.Ed. 23 (1824) as he spoke about constitutional interpretation and construction:
Id., 22 U.S. at 188-189.
The fundamental object in construing constitutional provisions is to ascertain the intent of the drafters by reading the words as written, employing their natural and ordinary meaning, and construing them to fulfill the intent of the drafters. Haile v. Foote, 90 Idaho 261, 409 P.2d 409 (1965); Keenan v. Price, 68 Idaho 423, 195 P.2d 662 (1948).
THE LIEUTENANT GOVERNOR DOES NOT VIOLATE THE SEPARATION OF POWERS CLAUSE OF THE IDAHO CONSTITUTION BY VOTING DURING THE SENATE'S ORGANIZATIONAL SESSION WHEN THE VOTE IS EQUALLY DIVIDED.
The separation of powers doctrine embodies the concept that the three branches of government, legislative, executive and judicial, should remain separate and distinct so that each is able to operate independently. This concept of separation of powers was adopted as a guiding principle by the United States government, although not expressly mentioned in the United States Constitution. O'Donoghue v. United States, 289 U.S. 516, 530, 53 S.Ct. 740, 743, 77 L.Ed. 1356 (1933) ("It is important thus to separate the several departments of government and restrict them ..."); Springer v. Government o Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928); Evans v. Gore, 253 U.S. 245, 40 S.Ct. 550, 64 L.Ed. 887 (1920), 11 ALR 519, (overruled on other grounds O'Malley v. Woodrough, 307 U.S. 277, 59 S.Ct. 838, 83 L.Ed. 1289, 122 ALR 1379 (1939)); J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624 (1928); Kilbourn v. Thompson, 103 U.S. 168, 191, 26 L.Ed. 377 (1881) ("It also remains true, as a general rule, that the powers confided by the Constitution to one of these departments cannot be exercised by another").
Joseph Story, in Story on the Constitution, (1873), quotes Charles de Montesquieu, the French philosopher, on the dangers of allowing the three branches to become entwined:
Id. at 377.
The framers of the Idaho Constitution saw fit to include this concept in our constitution as an express provision:
Idaho Const. art. 2, § 1 (emphasis added).
Petitioners assert that allowing the Lieutenant Governor to cast a tie-breaking vote on "procedural matters" violates the separation of powers doctrine because it results in the executive branch exerting undue influence on the Senate. The separation between the three branches is not always absolute and unequivocal. Joseph Story is instructive on this issue:
J. Story, Story on the Constitution, p. 380 (emphasis added).
The "mixture" of which Story wrote has been incorporated into our state and federal government structures. The President of the United States participates in the legislative process through the power of his veto. The impeachment power allows restraints on one branch of government by another. G. Gunther, Constitutional Law (9th ed. 1975). On a state level, the governor has the power to veto legislation, art. 4, § 10, and to grant pardons, art. 4, § 7. The legislature must ratify certain executive appointees such as the members of the Idaho Water Resource Board, I.C. § 42-1732, members of the State Tax Commission, I.C. § 63-501, members of the Industrial Commission, I.C. § 72-501(1), and members of the Idaho Public Utilities Commission, I.C. § 61-201. Thus, the separation of powers concept is not an all or nothing proposition. The intrusion of one constitutional department of government into the powers of another department is not a violation of the separation of powers clause of the constitution if that intrusion is authorized by the constitution itself.
Article 2, § 1, of the Idaho Constitution contemplates limited interbranch encroachment when it follows the separation of powers pronouncement with the language, "except as in this constitution expressly directed or permitted." We first must determine if the language contained in art. 4, § 13 of the Idaho Constitution constitutes an express authorization, as required by art. 2 § 1, which would allow the Lieutenant Governor to cast a vote in case the Senate is equally divided.
The language of art. 4, § 13 is:
Black's Law Dictionary defines "express" as, "[c]lear; definite; explicit; plain; direct; unmistakable; not dubious or ambiguous. Declared in terms; set forth in words. Directly and distinctly stated. Made known distinctly and explicitly, and not left to inference." Black's Law Dictionary (6th ed. 1990). "`Express' means `manifested by direct and appropriate language.'" Black's Law Dictionary 691 (Rev. 4th ed. 1968). Messmer v. Ker, 96 Idaho 75, 80, 524 P.2d 536, 541 (1974).
Id. at 524 (footnotes omitted).
The source of the American governmental concept of a non-legislative person presiding over the Senate and having a casting vote originates with the New York constitution drafted in 1777.
N.Y. Const. of 1777, art. XX.
The Lieutenant Governor does not violate the constitutional separation of powers as set forth in art. 2, § 1, by voting when the Senate is equally divided unless there are other constitutional limitations upon that power. We must then consider if there are other constitutional limitations placed upon the matters on which the Lieutenant Governor may cast a tie-breaking vote.
The New York Constitution was the inspiration for article I, § 3 of the United States Constitution, drafted in 1787, which expressly provides, "The vice-president of the United States shall be president of the senate, but shall have no vote, unless they be equally divided." The United States Senate has interpreted this authority of the Vice-President to vote when they (the Senate) are "equally divided" on both legislative and organizational matters:
Senate Procedure Precedents and Practices, S.Doc. No. 44, 88th Cong., p. 706, (footnotes omitted).
Petitioners point out that the Vice President of the United States typically is voluntarily absent during the organizational proceeding of the United States Senate. We acknowledge this custom of the United States Senate but do not find it to be of constitutional origin or precedent.
The drafters of the Montana Constitution in 1889 modeled art. 7, § 15 of their constitution after the New York and United States Constitutions and made their Lieutenant Governor president of the Senate with a tie breaking vote. The Montana Supreme Court determined that this provision applies to both legislative and organizational matters. State ex rel. Easbey v. Highway Patrol Bd, 140 Mont. 383, 388, 372 P.2d 930, 935 (1962).
In the summer of 1889, the framers of the Idaho Constitution drafted a provision virtually identical to that contained in art. 7, § 15 of the Montana Constitution. We are fortunate enough to have evidence of the intent of the framers in adopting art. 4, § 13 of our constitution:
Mr. Ainslie, delegate from Boise County, who was the chair of the standing committee on the Executive Department of the Constitutional Convention—the committee which drafted Article 4 of the constitution—responded to the argument of Mr. McConnell.
Proceedings and Debates of the Constitutional Convention, Vol. I, p. 412 (I.W. Hart ed. 1912) (emphasis added).
This colloquy makes it evident that the drafters intended the Lieutenant Governor to vote in the case of a tie, and included a clause in art. 4, § 13 in the Idaho Constitution for that reason. Article 4, § 13 does not restrict the questions on which the Lieutenant Governor may cast this tie-breaking vote.
1990 is not the first time in the history of the state of Idaho that the Lieutenant Governor has exercised this power to vote when the Senate is equally divided. During the 21st legislative session held in 1931, the Senate consisted of 23 republicans and 21 democrats. Tie votes occurred three times during that session, and the Lieutenant Governor cast the deciding vote to break each of the ties. These votes were for the elections of attaches, journal clerk and Sergeant at Arms—all organizational matters. S.J., 1931 Legislative Session, p. 5-8.
In 1967, I.C. § 67-404a was passed, for the first time separating an organizational session from the regular session of the Idaho legislature. This procedure was not part of the legislative process designed by the drafters of the Idaho Constitution in 1889, and it is not helpful in analyzing the purpose of the tie-breaking purpose provided in art. 4, § 13. Whether the organizational session is separate, as I.C. § 67-404a provides, or merely the first stage of the legislative session, as it was prior to 1967, the Lieutenant Governor's authority to vote in the case of a tie vote is the same.
These historical precedents all support an interpretation of art. 4, § 13 permitting
Petitioners urge that the organizational and rule-making provisions of Idaho Const. art. 3, § 9 limits the involvement in organizational matters to members of each house, therefore, precluding the Lieutenant Governor from taking part in the organization of the senate.
The predicate for petitioners' position in relation to art. 3, § 9, of the Idaho Constitution, is that the Senate does not exist until it is organized, and therefore, the contemplation of art. 3, § 9, is that only those who have been elected to positions in the Senate have the franchise to cast a vote to "organize the Senate" and thus bring it into being.
Petitioners argue that there is no Senate until after rules have been established, the President Pro Tempore and other officers have been elected, committees have been appointed and committee chairs have been designated. The Journal of the First Session of the Legislature of the State of Idaho, held in Boise City, Idaho, on December 8, 1890, reflects a different understanding of when the Senate comes into existence:
This record makes it clear that the members of the first Senate knew the Senate
Petitioners further assert that art. 3, § 10 of the Idaho Constitution, which provides that if either house remains unorganized after four (4) days the house members will not receive pay until it becomes organized, is the sole remedy for a deadlock in the Senate. Petitioners suggest that the original drafters must have intended art. 3, § 10 to provide legislators with sufficient incentive to resolve a deadlock and that neither § 9 nor § 10 of art. 3 of the Idaho Constitution expressly provides that the Lieutenant Governor may vote in organizational matters:
Petitioners assert that these provisions restrict the authority granted in art. 4, § 13 because the Lieutenant Governor is not expressly granted any recognition in these articles.
It is our duty to reconcile constitutional provisions that apparently conflict with one another. Standlee v. State, 96 Idaho 849, 852, 538 P.2d 778, 781 (1975) ("Constitutional provisions apparently in conflict must be reconciled if at all possible"); Engelking v. Investment Board, 93 Idaho 217, 221, 458 P.2d 213, 217 (1969) ("[P]rovisions apparently in conflict must be reconciled"); Christensen v. West, 92 Idaho 87, 88, 437 P.2d 359, 360 (1968) ("Statutes in pari materia [pertaining to the same subject matter], although in apparent conflict, are so far as reasonably possible construed to be in harmony with one another"); Tway v. Williams, 81 Idaho 1, 336 P.2d 115 (1959). Therefore, we must determine if there is a conflict among these various constitutional provisions.
It is apparent that the drafters of our constitution envisioned various contingencies that would prevent the efficient operation of our legislature. Because certain events could stall the legislature and prevent the transaction of necessary business, the drafters of our constitution included several provisions to alleviate potential problems.
As the report of the Constitutional Convention bears out, the drafters of our constitution were concerned with the possibility of the Senate ending in a tie. For that reason, they gave a deciding vote to the President of the Senate in order to break a deadlock that resulted from an equally divided Senate. Without such a provision, the Senate would remain in deadlock and nothing would be accomplished. This would frustrate the purpose of the Senate.
But an equally divided Senate is not the only contingency the drafters contemplated. Those who framed our constitution were aware of many other exigencies that could arise that would prevent the Senate from organizing itself. Such as a lack of a quorum, filibustering, dilatory legislators, legislators who would not vote, an absent
The parties urge us to analyze the Senate Rules as affecting the outcome of the issues presented, and as to whether the appellate process provided for in those rules are an adequate remedy, thereby precluding the availability of an extraordinary writ to the petitioners.
Id. 105 Idaho at 606, 671 P.2d at 1069.
Having addressed the constitutional issues involved, we decline to review the Senate Rules.
After reviewing the petition for extraordinary relief we hold that the Lieutenant Governor did not violate the separation of powers clause of art. 2, § 1 by voting pursuant to art. 4, § 13. We hold that Idaho Const. art. 4, § 13 authorizes the Lieutenant Governor to vote any time the Senate is equally divided. We hold that art. 3, § 9, art. 3, § 10 and art. 4, § 13 of our Constitution were designed to function together to ensure that our Senate functions efficiently and productively. Therefore, we deny the petition.
No costs to either party.
BAKES, C.J., JOHNSON, J., and SCHROEDER, J., pro tem.
BISTLINE, Justice, dissenting:
The opinion for the court is well-written, and resulted from a truly collegial effort. It is persuasive, but I cannot in good conscience join it. In eighth grade civics class I learned that the Lieutenant Governor was an office created by the framers of the Idaho Constitution so, that on the happening of the elected governor dying, or otherwise being disabled from continuing in office, there would be a successor in place, ready to step in and take over.
Whoever holds that office, so we learned, does have the Constitutional right to vote in circumstances where the Senate is equally divided—should the question before the Senate be in regard to the legislative process of enacting laws.
The philosophy behind the procedure, so we learned, was that a tie vote would result in needed legislation being delayed. We further were given to understand that, although the office-seeker is of some particular chosen party, once elected to the office, party affiliation is eschewed the very minute she/he is administered the oath of office.