April 29, 2024
To: Idaho SOS – 4-29-2024 reply to AG Final Draft
From: Joshua Palken
Re: Comments from AG on Initiative petition
We are confirming and following up on our telcon of April 25, and the letter from Deputy AG Adam Warr’s letter of April 10 addressed to you SOS McGrane. It certainly would have been better if we had received this letter when you did – 15 days is a long delay and if we had not contacted your office it might well have been even longer. As you know this entire process is bracketed by deadlines so I’m sure you understand there is no time to waste!
In any event, in response to one question raised, we had and are still filing this as an Initiative because the essence of the measure is a new law which requires the state to provide more funding for schools. All references to existing laws confirm the new law, the amount of the new funding, and the ability of citizens to directly challenge the state with reference to the amounts of such funding in the future. It was a shortcut to simply refer to the affected laws as “repealed” which was an error.
You referred us to existing initiatives for the required format and we reviewed the pending initiative. We note that they conform to the item cited in the AG letter which stated as follows: “Idaho Code section 34-1801A states that an initiative must “set out the full text of the measure proposed.” However, Section (3) cited by the AG provides that:
“(3) The petition for referendum on any act passed by the state legislature of the state of Idaho shall be in substantially the same form with appropriate title and changes, setting out in full the text of the act of the legislature to be referred to the people for their approval or rejection.”
This section on its face applies only to referendums. However, we understand that the line between initiative and referendum is unclear since to the extent an initiative changes existing law it may be (?) considered a referendum. And this issue is exactly pointed out in the AG letter which states that
“There is also question as to whether this is an initiative or a referendum since
this does not appear to propose a new law, but instead seeks to repeal current law. That question needs not to be analyzed as the petition, as presently drafted, is legally insufficient.”
The Code provides that a referendum set out “…in full the text of to be referred to the people for their approval or rejection.” As just noted this section on its face applies only to referendums because in the case of an initiative there is (theoretically) no act of the legislature involved. Of course, nearly every initiative will affect an existing law, so I understand why the two are “conflated” for practical purposes.
Section (2) of this Code sets forth with particularity “…the form of petition for any law proposed by the initiative.” Our petition complies with this section. It appears that the AG review provisions of Idaho Code Section 34-1809 do not authorize the AG to declare the petition to be “legally insufficient” or grant any authority to reject a petition. The Code provides that:
“(c) The attorney general shall issue a certificate of review to the secretary of state certifying that he has reviewed the measure for form and style and that the recommendations thereon, if any, have been communicated to the petitioner, and such certificate shall be issued whether or not the petitioner accepts such recommendations.”
That said, we do consider it reasonable to infer that the AG review should include any items which might be non-compliant with Section 2. As just stated we assert that the petition complies, but we are very glad to have the AG comments and recommendations and want to proceed in a clear and proper manner consistent with applicable law. The AG finding is centered on issue of referendum vs initiative and the required formats for each.
So as I understand the AG position an initiative should “set out the full text of the measure proposed” to the extent that an initiative amends or alters an “act of the legislature to be referred to the people for their approval or rejection.” We are fine with this and we appreciate the goal of clarity on the measure and have no problem doing the redline text for this initiative petition and making other changes to clarify the status of the petition.
Accordingly we have revised the initiative to reflect your comments and clearly structure the petition as an initiative, but also including the “full text” of all acts of the legislature affected by the initiative. We would appreciate your reviewing this revised petition and advising if it meets your approval. There may be some formatting issues which we will address once the substantive issues are resolved.
In addition we need to confirm that the signatures following an amendment of a petition remain valid. Code Section 34-1809 has no requirement to renew them so we assume that the original signatures remain valid, but would like your confirmation of that.
In closing, thank you very much for your timely input. We look forward to resolving any issues and moving the process forward ASAP.
Sincerely
Joshua Palken and Melina Palken
Sponsors
5-2-24 School Board Memo
From Joshua Palken and Melina Palken ([email protected])
May 2, 2024
To MVSD Board of Trustees c/o Board Chair Tyler Harrington
Re: School Funding Reform Initiative
Dear MVSD 244 Board of Trustees:
As you know we drafted and submitted an initiative petition and 27 verified elector signatures with the Idaho Secretary of State (SOS) designed to reform school funding state-wide. The petition was reviewed by the SOS and the Attorney General (AG) and we incorporated their comments. In effect the main issue was that they AG wanted the “full text” or any law affected by the Initiative to be included and red-lined in the petition, citing as follows: “Idaho Code section 34-1801A states that an initiative must “set out the full text of the measure proposed.”
We pointed out that under Idaho Code this requirement applied only to referendums as follows:
Idaho Code section 34-1801A Section (3): “The petition for referendum on any act passed by the state legislature of the state of Idaho shall be in substantially the same form with appropriate title and changes, setting out in full the text of the act of the legislature to be referred to the people for their approval or rejection.”
However we agreed to amend the petition, a copy of which is attached. As you can see we have greatly simplified the law, eliminating pages of confused, needless and complex laws.
The AG then asserted that that new signatures are required as a result of the changes. We pointed out that this too was not the law, which provides that following the AG review:
Idaho Code Section 34-1809 “(c) The attorney general shall issue a certificate of review to the secretary of state certifying that he has reviewed the measure for form and style and that the recommendations thereon, if any, have been communicated to the petitioner, and such certificate shall be issued whether or not the petitioner accepts such recommendations.”
Again we objected but the AG and SOS declined to address or support their legal position, leaving us to obey or be rejected. Of course this is not how our government is supposed to function but that is another topic.
As it stands we need to gather 20 signatures and resubmit, starting the process over again. We do NOT intend to do so without the support of the MVSD Board, since without such local support to commence the process it will go nowhere.
So we are presenting the amended initiative petition for formal consideration and support of MVSD #244. We request you place this issue on the May 16th meeting. Regardless of the outcome of this levy, this needs a permanent solution, and there will be no risk of confusion at this point since election day is now upon us and the die is set. This is simply forward looking and needs to get started.
The “short title” summary of the proposed ballot measure is threefold:
- Replaces the levy state wide with an equal amount of additional state school funding
- Replaces school district sponsored bonds with state sponsored bonds for all school facilities
- Provides for judicial review of the states performance of these new obligations
I hope we can all agree that these changes will provide a stable, consistent and fair method of funding state wide. It will also relieve the school districts of the huge burden and uncertainty of running levies.
Please let us know if you are willing to put this on the agenda and if you would want us to make any kind of presentation or attend to answer questions.
Sincerely
Joshua Palken
Melina Palken
