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Posts published in “Day: August 15, 2006”


The decision Monday by the Idaho Supreme Court on Monday, allowing the Boise ballot issue on the Ten Commandments monument to go to election, may not have been well understood. The take of the court's majority was uncommonly limited.

It was enough to give the Keep the Comandments Coalition a win, at this stage anyway. They wanted an initiative on the ballot and now they've got one.

But the decision in Boise City v. Keep the Commandments Coalition, was based on the idea that the Supreme Court, or any other court, really didn't have authority to act at all, at this stage.

Initiatives, including city initiatives, are designed to pass pieces of legislation - policy decisions. The city of Boise contended that the decision of where a 10 Commandments stone should be placed is an administrative action, not a policy decision. The Supreme Court gave a limited thumbs-up to that argument, saying, "If a subject is legislative in nature, it is appropriate for action by initiative. On the other hand, if the proposed initiative is administrative in nature, it falls outside the scope of action allowable by initiative. There is no bright line rule that clearly distinguishes what is legislative in nature, as opposed to administrative in nature."

But then it concluded: "In this case the initiative may not pass in which case the issue of whether it steps over the bounds of a proper initiative would be moot. The initiative may pass and be the proper subject of an adjudication, or the City council may exercise its authority to amend or reject it. The validity of the action sought by the petition may or may never be the proper subject for Court action. Just as the Court would not interrupt the legislature in the consideration of a bill prior to enactment, the Court will not interrupt the consideration of a properly qualified initiative. The petition qualifies for the ballot for consideration by the voters."

Courts have tended to be highly reluctant to block an initiative before voters have a chance to act on it. So that's not a surprise.

But they also may have signalled that, if the issue passes, its advocates shouldn't necessarily count on a favorable ruling later, if one occurs.