By Ruth Brown, Idaho Reports 

The Idaho Supreme Court heard arguments Wednesday from the Idaho State Athletic Commission and the Idaho Division of Professional Licenses calling the state’s new rulemaking process unconstitutional. 

The agencies take issue with HB 206, which passed the Legislature in March on a party-line vote. Their petition argues the new law prevents state administrative agencies from promulgating and adopting any enforceable administrative rules until those rules have been pre-approved by the legislature.   

Lawmakers typically review existing agency rules at the beginning of each legislative session and approve them before adjourning for the year. However, they have neglected to officially reauthorize the body of rules since 2019.  

Attorney Jeffrey Thomson of Elam & Burke, P.A. represented the petitioners in the court and started his argument with heavy criticism of the Idaho Legislature. 

“The Legislature claims it has powers so broad that it can shut down agency rulemaking completely and can prevent any agency or all agencies from having any enforceable final rules and can do so without consequences,” Thomson said.  

Thomson argued the Legislature does not have preliminary powers over agencies rules. 

The petitioners argued the law violates the separation of powers between the legislative branch and the executive branch, as executive agencies are tasked with making rules that carry out the intent of the law. The new law requires pre-approval from a legislative committee before the rules take effect. 

“If we can just keep the Legislature in its constitutional lane … then we can avoid all of the chaos, all of the disarray, all of the extra costs that have been caused by the preapproval process that has prevented agencies from making rules,” Thomson said. 

Petitioners argue the issue is time-sensitive, claiming that the State Athletic Commission has no current rules with the force and effect of law. 

Thomson stressed that the Legislature delegated rulemaking power to the executive branch and its agencies, and that preventing them from doing so violates the separation of powers clause in the U.S. Constitution. 

After the bill’s passage, Gov. Brad Little did not sign the legislation, but he did not veto it, so it went into effect without signature. Little wrote in his April 6 transmittal letter with the bill, “Conditioning the enforceability of rules on legislative action runs afoul of constitutional separation of powers and threatens to undermine the negotiated rule making process.”  

Attorney Kolby Reddish, of Smith and Malek, PLLC, argued on behalf of the Idaho Legislature. He said the petitioners have failed to establish any unconstitutional mandate under the new law.  

Unlike the petitioners, Reddish said, the Legislature does not believe the law is in violation of Article III Section 29 of the Idaho Constitution. That provision states, “The Legislature may review any administrative rule to ensure it is consistent with the legislative intent of the statute that the rule was written to interpret, prescribe, implement or enforce.” 

Both attorneys fielded questions from the justices, who referred to past cases regarding administrative rules. 

Justice Gregory Moeller asked Reddish what the state constitution means when it says the Legislature will “review” the rules. 

“Does it mean they have to take it to a vote? Perhaps I think Mr. Thomson would think so,” Moeller said. “Or does it mean they have to take it to be assigned to the germane committees? Does it mean they have to have a hearing? Or does it mean they just have to read it and say, ‘Nah. We’re not going to do anything?’ What does legislative review mean when it comes to administrative rules?” 

Reddish responded saying it was a difficult question, and that’s why his arguments were focusing on the law today, under HB 206, rather than before its passage. 

“It does require hearing in the germane committees,” Reddish said.  

He did not have a strict definition of what it meant prior to the change in the law. 

“Legislative review can incorporate a number of things,” Reddish said. “Again, I believe the Legislature’s position today is to defend House Bill 206, not necessarily the past legislative inaction. I don’t believe the past legislative inaction is properly before this court.” 

The Idaho Supreme Court will issue a written opinion at a later date. 

Fourth Judicial District Judge Steven Hippler sat in as a substitute on Wednesday for former Justice John Stegner, who retired on Oct. 31. Gov. Brad Little has named First Judicial District Judge Cynthia Meyer to replace Stegner, but she has not yet taken the bench on the higher court. The Idaho Supreme Court is allowed to fill a vacancy with any active or senior district judge under Idaho law. 

---