The legislative session this far has been fairly free of major legislative issues.  Typical of a session before an election, few controversial pieces of legislation will be heard this year. The really big news is the number of changes to the legislature will take place this year.  With the adoption of the new legislative appropriation map, many house members and a few Senate members will be forced to either retire, or choose another body. Perhaps the biggest challenge will be figuring out how all the new bodies will fit into the puzzle of carrying out public policy.

Perhaps the most disturbing thing to come across my radar this session is a perceived dissatisfaction with LHTAC.  I have heard of legislation that is prepared to do away with LHTAC, and I find it interesting that as I hear these rumors, I never seem to find out who it is that wants to get rid of LHTAC.  This Association was the corner stone of creating LHTAC.  We did it because of the ignorance locals faced when trying to get help from the state and  federal governments.  If, in fact, we see legislation that would eliminate LHTAC, this association will utilize every available asset to fight this legislation. LHTAC has succeeded in giving the locals programs that fund projects based on need, and not who they are, or who represents them. LHTAC makes sure that projects get built, and that every dine allocated to the locals is spent, wisely, and in accordance with all state and federal regulations.  Getting rid of LHTAC is a step backward for this state.  I have worked too long, and too hard to watch something so important, and perhaps even one of the few examples of a government agency that actually works.

I urge you to get involved. Participate in the conference calls this weekend. I will discuss these issues, and others. Calls are free, and occur at 7:00 p.m. Mountain Time.  Call the office if you have any questions about access numbers and passwords.

 Sophocles, one of the greatest of the Greek Tragedians, wrote the above words in the play, Antigone.  Few people would accuse Governor “Butch” Otter of violating these principles. Indeed, the Governor in his State of the State address, stuck with the theme that Idaho is stronger now than ever before, that through his will, we have resisted raising taxes, have become more efficient, and perhaps most important, we do not have any significant public debt. And it is fair, in my opinion, to lavish praise on the Governor for his steady hand at the helm running the state.  Although I believe the departure of his former Chief of Staff Jason Kreizenbeck will have significant long-term negative implications for the administration, Mr. Otter does indeed seem poised to finish out his term firmly in control.  Mr. Kreizenbeck’s intellect and ability to grasp political nuances is very hard to replace, and indeed, we have seen some errors from the Governor’s office that clearly would not have been made if Kreizenbeck were still in his employee.

The State of the State message set the tone for the legislature, and three weeks later, the words are forgotten, but the message of keeping the state on a balanced budget remain firm. There will be no significant increase in government spending this year, and with the exception of public education, most agencies of the state will be receiving the same, or less than, what was allocated for them last year.

Transportation was clearly absent from his speech this year.  This is one of his signature issues from early in his term, and with the exception of mentioning the departure of ITD Board Chairman Darrel Manning, there was no other reference to the issue. I do not believe that this was an omission; rather, the perception is that it simply is just not the time to discuss raising revenue for transportation funding. Tax increases are seldom carried out in an election year.

At some point in this exercise of administrating the government, there must be a discussion with private enterprise regarding the status of transportation systems in Idaho, and the impact of the continued deterioration of such an important infrastructure component. Several significant studies have demonstrated that ignoring this problem becomes one of exponential problems, related to the issue of when maintenance is ignored, or relegated to a less rigorous schedule, then subsequent repairs become much more costly. Unfortunately, the last part of the Sophocles quote becomes germane to the issue, because we have few legislators willing to look at the problem of funding streams without significant support from private enterprise.

Over the coming weeks, I would urge you to become part of the process. As issues flesh out that support our mission of highway districts, or impact it, a phone call from a highway district commissioner often becomes the small difference that changes the course of an issue. In a newsletter mailed out last week, there is information on how to get contact legislators, track legislation, weekly IAHD conference call information, and perhaps most important, Laura’s cell phone number.

As we start the fourth week Monday, the floodgates of legislation will begin to open wider, and emit a torrent of legislation that must be read and analyzed. You can keep informed of this legislation as it occurs by checking the IAHD web site www.iahd.com, and clicking on the Legislative Advocacy Page, then clicking on 2012 IAHD Legislative Database.  You can also sign up for a daily email update by sending a request to laura@iahd.com with your email in the body of the message, and you will then be placed into the breaking news system which will alert you to important news as it breaks.

I will post to this blog at least every Friday, and more often if issues come up. I want to emphasize once again that the information contained in this blog is the sole responsibility of Stuart Davis, and may not reflect the views and opinions of the Idaho Association of Highway Districts.

I am, of course, talking about the fact that I no longer want your comments. I have had over a hundred of them since I started this blog in January, and only hand full of them seemed legitimate enough to warrant publication.

I hate the fact that there is no internet decorum. There is no face to put with the words that get floated around. I resent the fact that any idiot with twelve cents to roll together an get on the internet, reach out and deface, try to sell something, or just demonstrate their parents lack of self control, by posting incessant crap.

It really makes me wonder about the future.

When the original legislation, (HB 372) was passed in 2009, we knew that there was going to be some “Clean up” legislation to fix some of the problems. Legislation passed in 2010, fixed the vast majority of problems, but as 2011 rolled around, we needed to go in and fine tune a few more sections. Thus, the secretary of State introduced HB 60. This bill is now law, and from the highway district point of view, this legislation took care of our concerns.  Enter in now, the unintended consequences of HB 60 and how they relate to the process of electing a highway district commissioner. One of the changes in HB 60 was the date of when a newly elected commissioner took office. Prior to HB 60, Commissioners took office on October 1st, However, when we drafted HB 60, we changed that date to July 1st.  The reason for the change is pretty obvious, under the old law, a person was elected in the second Tuesday in August, and approximately 6 weeks later took office on October 1st.  However, moving the election date back to May, meant that a commissioner elected under the new provisions of law, the third Tuesday of May would spend more than four months waiting to take office. So we crafted language in HB 60:

40-1304. DIVISION OF DISTRICTS INTO SUBDISTRICTS–VACANCY IN OFFICE OF HIGHWAY COMMISSIONER.

(1) At the meeting of the county commissioners at which the highway district is declared organized, the commissioners shall divide the highway district into three (3) subdistricts, as nearly equal in population, area and mileage as practicable, to be known as highway commissioners subdistricts one, two and three. Subdistricts may be revised or modified by the highway district commissioners as changes in conditions demand. Not more than one (1) of the highway district commissioners shall be an elector of the same highway subdistrict. The first highway district commissioners appointed by the governor shall serve until the next highway district election, at which their successors shall be elected. The highway commissioners shall take office on the date specified in the certificate of election but not more than sixty (60) days July 1 following their election.

The underlined language is the new addition, while the strikethrough language is the part that is being deleted from the code.  So by adding in the hard date of July 1st, we thought we solved the problem of the length between being elected and taking office.  The problem though, is how would you deal with the commissioners that were elected under the old law, and being able to serve their full term of office. So we inserted a new section in HB 60 that protected this process:

34-1412. TERMS OF OFFICE GOING BEYOND NEXT ELECTION DATE. Not with  standing any other provision of law to the contrary, whenever a member of the governing board of a taxing district has been elected to a term of office that goes beyond the next election date as provided by statute, such member of the governing board shall be entitled to serve his or her term of office and shall continue to serve until the following election provided by statute. All governing board members elected on and after January 1, 2011, shall serve terms of office beginning and ending as otherwise provided by statute. This was sound word smithing, all aspects of the the changes we needed to the election law were now in place, and as of right now, HB 60 is law as of right now.

However, the attorney general noted a problem. If you reread the new section we put in in title 34, read the sentence…”Not with  standing any other provision of law to the contrary” This innocuous sentence has profound effects on our election process because we hard coded in the date July 1st in 40-1304. So now, regardless of when you were elected, you would take office on July 1st. This is a real problem though, because I feel strongly that the voters who went to the polls elected highway district commissioners  to serve a full four year term. They did not place them in office for a three year, 9 month term. This shortening of terms may seem to be insouciantly applied. But the ramifications are profound, because if we allow this to remain in place, then what would stop you the next time from cutting off the terms of another taxing district.  Take it to the extreme, and say that you have a very unpopular commissioner. Under the theory contained in this legislation, you could pass a bill that would shorten his term. That, is entirely repugnant to the theory of a legitimately elected individual.

So next week, in the House State Affairs, I shall introduce a new bill that fixes this problem:

AN ACT RELATING TO HIGHWAY DISTRICT COMMISSIONER TERMS OF OFFICE. AMENDING IDAHO CODE CHAPTER 13, TITLE 40 BY INSERTING A NEW SECTION 40-1305D; DECLARING AN EMERGENCY

Be It Enacted by the Legislature of the State of Idaho:

SECTION 1. That Chapter 13, Title 40, Idaho Code, be, and the same is hereby amended by the addition thereto of a NEW SECTION, to be known and designated as Section 40-1305D, Idaho Code, and to read as follows:

For the purpose of achieving an orderly transition for Highway District Commissioner elections held in odd-numbered years, the following schedule shall be followed:

(A) For Highway District Commissioner(s) elected in 2007, said commissioner(s) shall serve their full term, with said term expiring on October 1^st, 2011.

(B) For Highway District Commissioner(s) elected in 2008, said commissioner(s) shall serve their full term, with said term expiring on July 1^st, 2013.

(C) For Highway District Commissioner(s) elected in 2009, said commissioner(s) shall serve their full term, with said term expiring on October 1^st, 2013.

(D) For Highway District Commissioner(s) elected in 2010, said commissioner(s) shall serve their full term, with said term expiring on July 1^st, 2015.

(E) For Highway District Commissioner(s) elected in 2011, said commissioner(s) shall serve a four-year term, shall take office on July 1^st 2011, and said term shall expire on July 1^st, 2015.

(F) In the case where a highway district commissioner(s) elected in 2007 does not stand for re-election or is defeated in 2011, said highway district commissioner(s) shall serve their full term, with said term expiring on October 1^st, 2011. Highway District Commissioners elected under subsection (E) of this section shall then take office on October 1^st, 2011.

SECTION 2. An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval.

This new bill, which I expect will have no opposition should, once and for all, fix the issue.

I will keep you abreast of this as the process unfolds, and shall post more information, including a link to the bill.

What do the bills do? Well they are clarification bills on validation procedures for public rights-of-way, and the process of removing encroachments in  the public-right-of-way. Both of these bills are very important pieces of legislation, and it will be interesting to see how they are received.

As I alluded to last week, I do not see the end of the session light yet. There is some attention being put on the last of the Luna education bill’s, and if this bill is defeated, then the legislature needs to go back to the drawing board and find some more cash to fill the hole that this bill will cause.

A better person would keep this to himself, but “I Told You SO.” A couple of years ago, in an effort to bolster the funds for ITD, the legislature stripped the state cops out of the highway distribution account (HDA). Previously, the state cops get 5% of the fund, which is about 16 million give or take.  The legislature rolled the state cops into the general fund, and then gave ITD the additional monies.

The problem is that the HDA account is completely separate from the general fund. The action of the legislature by moving the funding source meant that the state cops fortunes rose and fell with the rest of the state agencies.  In the HDA, the revenue stream is from gas tax and such, so the stream is very stable. Thus the state cops had to compete against the rest of the agencies for their funding.

I thought it was a stupid idea to start with, primarily because the locals should have gotten 50% of this money instead of ITD getting the whole ball of wax. I said it was a stupid idea because it made the state cops compete with other agencies for funding. I said is was a stupid idea when it was printed, debated, and became law….Well this year the legislature is rolling the state cops BACK into the into the HDA.

One last note. I intended this blog to keep my association members up to date on what is going on with specific issues, and my take on them.  These comments are mine, and mine alone, and do not necessarily reflect the views of my employer, the Idaho Association of Highway Districts.  I welcome your feedback. What I do not welcome, is the spam, stupid sales gimmicks, and just generally worthless people who send me crap. Stop. Get a life. Get a job. Thank You.

…this is a long post, full of  abstract constitutional theory juxtaposed with humor, and laced with opinions from yours truly.

Last week the Idaho House passed HB 117, a bill that basically prohibits any state agency from complying with the federal heath care plan passed during President Obama’s first term, by a vote of 49-20.

The debate was some of the most eloquent and impassioned I have heard during my 25 years spent toiling away under the dome.  What fascinates me about this piece of legislation is not so much that it successfully passed the House, but more to the point, what the passage of the bill really says about Idaho in general.

HB 117 invokes a legal theory called “Interposition and Nullification.”  Stripped of its obtuse nomenclature and put into a more understated Idaho parlance, this means the Federal Government can go to Hell and take its health care legislation with it.

The roots of nullification run deep in our country’s history. In fact they run all the way back to the days when James Madison and the other Founders crafted the Constitution. During the ratification debates, Alexander Hamilton, James Madison and John Jay anonymously published a series of essays intended to sway the 13 states replace the Articles of Confederation with the new Constitution. Although people can argue about what the founders meant or intended by passing the Constitution, all we really have from that time period are a few contemporary diaries, and these 85 articles by Hamilton, Madison and Jay that came to be known as the Federalist Papers. To be fair, there is a fair amount of literature known as the Anti-Federalist Papers to which scholars and politicians frequently allude.  But their importance is primarily instructive in that the ideas they contained, including State supremacy over national laws, were decidedly rejected by the Constitution’s ratification.

The Federalist Papers give us an idea of the general consensus regarding what those who wrote the Constitution thought it meant. The Founders created the Constitution as a “blueprint” for a new government.  This “blueprint” explains that: the people – not the states – are the source of the Federal Government’s power, and delineates those entrusted to enforce, make and expound upon the law.   It is clear, from the beginning that the Constitution was drafted to be THE Supreme Law of the Land (See Federalist Paper #44, by Madison.)

In fact, stop and think about what they were voting for at the time – a rejection of the Articles of Confederation and their theory of State supremacy over the national government. The average citizen in 1788 probably believed that the state that he/she (although, to vote, you generally had to be white, male, and own land) resided in was sovereign, or the supreme law of the land. A vote for adopting this new Constitution meant that you were giving up, or acquiescing to the power of the federal government.  This notion is central to the theme at hand, because the original 13 states, and the 37 that came afterword, all acknowledged and accepted this submission. And they did so for good reasons that shouldn’t be forgotten in the current political climate. Our banking, defense, postal, transportation, energy, education, and health and welfare systems, in deed, almost every facet of our lives is conditioned upon the acceptance of the Constitution as the Supreme Law of the Land. Every time we place a stamp, pay a bill, drive a car, fly on an airplane, we are saying that the federal government is, in fact, the ultimate law of the land.  It is precisely this system that has created the most free, wealthy and powerful country the world has ever seen.

The notion that the state has greater legal authority than the Federal Government has not only been repeatedly rejected, but also could end in absurd results.  (Imagine how often northern California would nullify defense appropriations bills.)  Equally futile is the concept of passing a law that trumps or negates a duly enacted federal law – what part of Supreme Law is open to interpretation?

However, as with all theories there are the detractors, and the individuals that find the concept of nullification justifiable and applicable in this situation. Validation of the nullification concept is built on the foundation of the Virginia and Kentucky Resolutions and 10^th amendment to the US Constitution. Although interesting historically, the Virginia and Kentucky Resolutions do not and never have had any force in law.  But the Tenth Amendment is another case.  The same document that gives the federal government the ability to assert its prerogative, also indicates that the power to make laws outside of the area of running the country is reserved for the states.  Read it for yourself:

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

That is what the nullification experts hang their hats on. They think that the power to force individuals to obtain healthcare insurance violates the 10th amendment. Well, let’s take a look at it, and at this point this article is going to get complicated. But stay with me, and I think you can see why we end up singing the state song….”and here we have Idaho…”

The clash between the powers of the state vs. the power of the federal government has been fought longer than our country has been a country. Early Americans hated the idea of the federal government controlling tariffs and other compelling acts, and tried to pass laws that in effect, nullified the federal government. This uprising actually got to the point that one American President actually had to send the Navy into the port if South Carolina to drive the point home. The states backed off, a little, and then found another federal power they hated…and that was the ability of the federal government to control the practice of slavery. Think the Civil War was fought over the issue of slaves? Think again, the real underlying cause of the Great War was the issue of states rights. The Northern states believed in the umbrella of the federal government, and the Southerners preferred to control this issue, and others, themselves.

The issue came to a head again in the mid fifties, when a couple of black girls wanted to go to a white school. The people of Little Rock did not want this to happen, and so they said no, and it took the matter into their own hands….and got spanked by the federal government. At this point you must be asking yourself how the hell did this happen when the Tenth Amendment says what it does? Well, I hate to use agricultural metaphors, but the states rights door was closed when the federal horse named McCulloch left the barn. The McCulloch case was one of those “Landmark Cases” that all government students are forced to read in college. The facts of the case are not as important as what Chief Justice Marshall wrote in his majority opinion. Marshall opined that the states were barred from enacting laws that was contrary to federal law, and that as long as the federal law was constant with the powers granted under the “Necessary and Proper Clause” of the constitution then the rights of the states were not trampled or assailed under the Tenth Amendment. This case became the foundation in which federal law always trumps state law in most matters.

So at this point you mighty be thinking, “you are telling me that a case argued and decided before the United States Supreme Court in 1819 allows the federal government to mandate I buy health insurance?” No, I am saying that when Hamilton wrote the federalist paper #44, the Founders imagined a system in which such a law’s constitutionality would not be decided by the states, but by the Supreme Court.

In the last 60 years, the U.S. Supreme court has tipped the scales of power toward the states and away from the federal government exactly twice, and in both cases, it was a minor triumph for the states, and a slap on the hand to a couple of federal agencies.

In fact, the Supreme Court pretty much stated in a 1931 court case that the Tenth Amendment “Added nothing to the constitution…” In essence, the amendment was window dressing to appease those whom argued for a weak federal government.  Although this seems absurd, it is no more absurd than other parts of the Constitution that are given no effect…like the clause authorizing the Federal Government to pass laws to “promote the general welfare.”  True fidelity to the Tenth Amendment would render the national government useless, but reliance on the promotion of the general welfare clause would give the national government nearly unfettered powers.  The wisdom is to be found, as it usually is, not at the extremes, but in the center.

So, if there is no hope of Idaho triumphing over the feds in this case, why did HB 117 pass?  Well, for one HB 117 is “feel good” legislation. Feel good legislation is just that, you pass it because it feels good, and you can go home and tell your constituents that you tried to get the federal government off their backs.  Second, it sends a message to the national government that the Idaho House isn’t at all happy.

When I was in third grade or so, my teacher Mrs. Ballif drilled into our little heads the lyrics to “Here we have Idaho, Wining her way to fame.” I hear that song in my head every time our state does something interesting like HB 117.

I have to credit two people with this post. The first is Dr. David Grey Adler, PhD. Dr. Adler is one of those rare professors that had a lasting effect on me, and gifted me, or cursed me, depending on your perspective with a deep and profound interest in Constitutional theory.

Equally as important, was former intern, and now important Washington D.C. lawyer extraordinaire Brett Cottrell. Many of you remember Brett who worked for our Association for years while going to school. He was certainly one of the, if not the best, interns I have ever had the privilege of working with. I am proud to call him a friend after all these years.

Today was also unique in as much as several people indicated that this might be the half way point in the session.  I disagree, we still have not seen a coalescence on what the budget numbers are going to be, and there seems to be some disagreement on how much the wind farm tax exemption bill is actually going to cost the state. New figures indicate it might be half of what it was, so the numbers are looking a little better.

I would invite all of you to participate in the conference call held on Sunday night.  I will give a brief run down of where the renewal bills should end up after amendments.

1. Highway district commissioners, except for Ada county, will be elected every third Tuesday in ODD Years.
2. Highway Districts will no longer conduct elections. All elections will be held and paid for through the county. The highway district clerk must supply the county clerk with some information, including which sub district is holding an election, notify the name of the candidate, verify candidacy, and a few other item.
3. Yes, the law reads right now that all three commissioners will stand for election this coming May.
4. But also, there is a bill, HB 60, that is in the legislature, that will be law shortly, that fixes this, and restores ALL commissioner’s full terms.
5. So, a commissioner that was elected in 2007, shall stand for election this coming may. If he wins either by ballot or because he is unopposed, then he shall take office on July 1st, 2011. If the sitting commissioner elected in 2011 is defeated this May, then he shall serve till October 1st, and then the new commissioner shall be sworn in.
6. A commissioner that is elected in 2008 shall serve her term to 2012, and then continue to serve until July 1st of 2013. Yes, she gets to serve the additional term from August of 2012 to July 2013.
7. A commissioner elected in 2009 shall serve until July 1st, 2013. He shall stand for election in May of 2013.
8. A commissioner elected to office in 2010, shall serve a full term till 2014, and then shall serve until July 1st of 2015. He will stand for election on the third Tuesday of May in 2015.
9. A commissioner that is up for election this year shall stand for election in May of 2011. He shall take office on July 1st of 2011, unless he is defeated. In which case he shall serve till October 1st, and then the new commissioner will take over.
10. Highway commissioners shall take office on July 1st, not October 1st, unless stated differently above.

This is the information that needs to go out to the individual districts, as soon as possible. I will be mailing out some additional information to all the clerks, and then another mailing to the commissioners.

Here is the link to HB 60

Please get a hold of me if you have any questions or comments….

At some point this week I am confident that we will have some direction from the House leadership on the legislation relating to Urban Renewal Districts. Of the bills printed, several of them justify our support.

I am still at odds over figuring out the TERO authority vested in with the Native Americans. The more information I get the more confused I become. How did a law with so many holes in it ever make it through the Federal process?
I would urge those of you that have not been participating to take a few minutes this next Sunday and participate in our state wide conference calls. These calls are important for us, as they give critical feedback in shaping legislative policy. Details on the calls can be obtained from the office.

I sure appreciate your support.