Dear Friends

Over the past several months, there has been an increasing number of folks asking about the Legislative role in the ongoing emergency declaration. Many have demanded that the Legislature return to Boise and provide additional guidance to how Idaho is dealing with the many issues surrounding the challenges facing our communities. However, much as we would have liked to do so – that was impossible. Per the Idaho Constitution, only the Governor can call the Legislature into session, and only the Governor can designate the topics we consider. I received many (many!!) well-reasoned arguments on this topic from constituents convinced that we could call ourselves into session based on Idaho Code. I also received many (many!!) well-reasoned arguments from attorneys and constitutional scholars convinced that we couldn’t, as the constitution always trumps the law.

The Idaho legislators believe that our laws dealing with the unprecedented conditions created by the Covid-19 Emergency weren’t working. In the end, the Legislature determined the best step forward was to review current law and determine what topics we are facing that need immediate legislation. We broke into four joint House/Senate working groups to review the issues and make recommendations. Our areas of focus included:

·      Election Dates and Process

·      Non-Cognizable Funds (funds that come into the state outside of the budget, usually from the Federal Government) Procedures and Limits

·      Emergency Declaration Duration and Power

·      Constitutional Amendment for Special Legislative Sessions

·      Limitations on Liability for Schools, Businesses, etc., during the Health Crisis

·      Statutory Flexibility for Public Schools to Deal with Possible Financial Holdbacks

I was a member of two of these four legislative “working groups,” the Judiciary and Rules and the Joint Finance and Appropriation Groups. The other groups were Education and State Affairs. Only Judiciary and Rules and State Affairs agreed to ask the governor to hold an “Extraordinary Session.” This is only the fourth time in the past 20 years that Idaho has had an “Extraordinary Session.” The others were in 2000, 2006 and 2015. Governor Little included three “RS’s,” or “Routing Slips,” (precursors to actual bills) in the Executive Order, which you can read here.   

The Legislature was advised that we should follow our normal process when working on bills. The Governor can choose the topic, and in this case, even document the specific language that he would be willing to consider. However, we were given direction to consider any appropriate amendments or even entire new legislative language as it related to the topic, all of which centered on Idaho’s response to the Covid virus. For that reason, we eventually introduced five bill options for dealing with limited liability (only one passed), and three bills related to the upcoming general election.

Here’s a recap of what we considered and what was passed (H are bills that originated in the House, S are bills that originated in the Senate):

 

H0001 Insures that in-person voting will be maintained, and passed unanimously out of the House and on a 33-2 vote out of the Senate. Many constituents called or wrote about how important this was to them, even though both Latah and Benewah counties had record numbers of absentee ballot requests for the primary and the general election. That said, there is concern about having enough election-day workers – please reach out to the Latah County Clerk if you are interested in working.

H0002, H0003, H0004, and H0005 were all draft legislation to address civil liability, and didn’t proceed out of the House Judiciary and Rules Committee.

H0006 passed out of the House and Senate, primarily along party lines. It provides limited immunity related to coronavirus for businesses, churches, schools and universities who safely reopen from being sued for coronavirus infections. It DOES NOT PROTECT those who have “reckless or willful misconduct.” We will be revisiting the policy next session, as it “sunsets,” or ends, on July 1, 2021. The policy does ensure that our businesses, schools, churches and local government can continue to move forward during reopening phases and keep our economy alive during the remainder of the pandemic. This legislation was strongly supported by the Chambers of Commerce, the Idaho Association of Commerce and Industry, School Boards, Farm Bureau, Food Producers of Idaho, and many more. It will not protect those who act recklessly or willfully. It also doesn’t cover Idaho’s government agencies, the Federal government, or international countries. It doesn’t affect workman’s compensation. To date, ten other states have enacted this type of legislation. There are already thousands of lawsuits filed across the nation in regard to Covid.

HCR001 Ending the Governor’s Emergency Declaration. The House had a healthy debate on the role of the legislature during an emergency, and passed a resolution ending the emergency declaration. We are concerned about the $1.25 Billion that is being spent with no legislative oversite, and with the over 70 laws that have been suspended during the crisis. This bill was “Laid on the Table” by the Senate, which means they did not act on it, effectively killing it.

             

HR001 Recommended the Governor designate CARES Act funds for poll workers, and passed the House unanimously. As a House Resolution, it did not go before the Senate.

S1001a Provided for more security around mail-in ballots – and is estimated to cost about $5,000 more per county. This safekeeping measure will require additional work for our County Clerk offices, but the Legislature felt it is important to ensure the utmost faith in our voting process. This passed both the Senate and the House and went on to the Governor.

S1002 would have allowed for a consolidation of precincts into “voting centers.” This passed the Senate, but died in the House State Affairs Committee.

SR101 This was the Senate’s approach to lifting the emergency orders. The Senate had the benefit of receiving opinions from the Attorney General and a private law firm on the topic of the House Resolution, and both opinions determined that the language in the House Resolution was unconstitutional. They passed Senate Resolution 101, a more reserved measure, requesting the end of the emergency and detailing the topics the Senate would like to address at the 2021 regular session. As a Senate resolution, it did not go before the House.

NOTE: Even if the legislature lifted the Emergency declaration, it’s important to note it wouldn’t change that cities and counties could still require mask restrictions, and could still declare their own emergencies, continuing their eligibility for Federal Funds.