forum.dwylbtzle.info

[Dwylbtzle]

hi--
came back and posted this, today--late june 2010
the following posts after this one were posted in real time as the events occured


for those who haven't been following the hailey idaho blaine county sun
valley area pot initiative story for these past 6 years:
in sumsory:
we tried to put four initiatives on the ballot:

total legal to smoke--and sell in stores
medical use
legalization of hemp cultivation for non-drug PRODUCTS--like fibre and
hemp seed oil
lowest police priority--and we stipulated in the law SPECIFICALLY lower
than fornication (hehehe)

but the town council refused to let us
so we fought for three years till the id supreme court said it was unconstitutional for them to do that--
voted 5-0 that those bohunks couldn't PRESUME to be the gatekeepers of
the citizens' initiative rights

so we FINALLY got to run the four initiatives--three passed
the total legalization for any use--(even just recreational tripping )
lost
BARELY

then the town council was gonna just strike them down
so we ran all four again
and the same three won, again--by even more -and the one that lost--
lost by even less
so they were too afraid of them voter peoples to try that again

but, then a judge struck them down, saying because federal law trumps a city law
but said we could form a committee to advise the mayor on general city pot policies
so me and my group got to name one member
and they made their recommendation
and, 6-16-10 the mayor WAS POLITICALLY FORCED to put one law back:
lowest police priority
lower than spitting on the sidewalk
lower than jaywalking
lower than fornication between consenting adults even
(which IS illegal, under idaho law--and is very bad for you
no
i'm serious--it's not meet--unless you marry the poor boy, gals)


********************

(the upshot of all this is that NOW no town council or confederacy of
dunces ANYWHERE IN THE UNITED STATES dare deign to declare that
someone can't put an initiative on the ballot
just because they don't happen to like it
OR FOR ANY REASON
PERIOD
AMEN)
ENgage
make it so
_________________

[Dwylbtzle]

50-MAR Advocate (Idaho) 17
Advocate
March, 2007

Feature Article

*17 IF THE CITIZENS SPEAK, LISTEN: IDAHO'S LOCAL INITIATIVE PROCESS


Brian Kane [FNa1]
Attorney General's Office, Idaho

Copyright © 2007 by Idaho State Bar; Brian Kane
There is no truer exhibition of democracy in its purest form than the initiative and referendum process. [FN1] In 1911, in the midst of a period of reform and grassroots empowerment known as the Progressive Era, Idaho joined many other western states in amending its constitution to secure the power of the initiative and the referendum to the people of Idaho.
The initiative power is not self-executing. [FN2] In other words, even where the right is constitutionally enumerated, absent accompanying legislation establishing the procedure for an initiative, there exists no mechanism by which the people may exercise the right. Thus, it would be 22 years before Idahoans could actually exercise the initiative power as to statewide legislation. In 1933, the Idaho Legislature adopted provisions outlining the procedures for statewide initiatives and referenda. Interestingly, however, the Idaho Legislature enacted procedures for exercising the initiative and referendum right as to municipal ordinances concurrently with the constitutional amendment creating the right. [FN3]
Against this historical backdrop, this article will discuss the jurisprudence of local initiatives and referenda within Idaho, noting standards for pre-election challenges, reviewing two recent opinions, and providing some ideas for clarification of the municipal initiative statutes.

IDAHO'S LOCAL INITIATIVE AND REFERENDUM JURISPRUDENCE
In Gumprecht v. City of Coeur d'Alene, [FN4] the petitioners sought to restrain an initiative, which, if passed, would have placed height restrictions on buildings near Lake Coeur d'Alene. The Idaho Supreme Court held that review was proper even though the election had not yet occurred, reasoning that such review was necessary to establish the boundaries of the local government's power. The Court opined that “[i]f an initiative election is an improper means of adopting or amending zoning ordinances in Idaho, then the city council of Coeur d'Alene would be acting in excess of its jurisdiction in holding the election.” [FN5] Thus, the Court established that in certain instances, pre-election review of municipal initiatives was proper.
In Weldon v. Bonner County Tax Coalition, [FN6] the Coalition's referendum sought to freeze Bonner County's ad valorem property tax at the same level as the preceding calendar year. The Court determined that referenda and initiatives in Idaho are limited to addressing “acts” or “measures” passed by a legislative body. In other words, a referendum can only seek to reject an act or measure, and an initiative can only seek to implement an act or measure. The Court found that the statutorily mandated budgeting process, by which Bonner County had calculated the ad valorem tax levy, was not an act or measure of the county, and barred the Coalition's referendum on the basis that it sought simply to circumvent the county budgeting process.
Gumprecht and Weldon were considered to stand for the premise that ordinance initiatives could be challenged pre-election. By contrast, the rule regarding statewide initiative efforts announced in Associated Taxpayers of Idaho v. Cenarrusa, [FN7] was that the Court would not entertain any pre-election challenges concerning the substantive portions of an initiative. [FN8] Chief Justice Charles Donaldson stated the Court's reasoning prophetically:
If the voters at the election defeat the lottery, then the state will know what a majority of the voters of Idaho want. If the lottery passes, then the legislators who represent the people will know what the peoples' wishes are and can act in a constitutional manner to amend the constitution so as to carry out those wishes. [FN9]
The court confirmed this holding several years later, in Noh v. Cenarrusa. [FN10] Noh, similarly, involved a pre-election challenge to an initiative, challenging the constitutionality of the initiative. The Court again declined to rule on this issue prior to the election. Subsequently, making the petitioners' case more difficult, the exact scenario that Chief Justice Donaldson predicted in Associated Taxpayers did, in fact, occur. The initiative passed and was declared unconstitutional, which led to the state adopting a constitutional amendment. [FN11] The example set by Noh effectively did away with substantive pre-election challenges to the constitutionality of statewide initiatives.
*18 Again, however, municipal and county initiatives were distinguished from statewide initiatives, as the Noh Court confirmed when it stated:
Weldon and Gumprecht dealt with county initiatives that over-reached the authority for such initiatives because state statutes defined the processes the initiatives sought to effect. The initiative process itself was flawed because the county initiatives could not change processes determined by state legislation. The subject matter was beyond the scope of the county initiative process. On the other hand, Associated Taxpayers dealt with a statewide initiative on a subject appropriate for the initiative process, though the substance of the initiative might violate the state Constitution. Nonetheless, the cases draw the distinction--if the subject matter of the initiative is reserved to another government unit, there is a justiciable controversy. [FN12] (Emphasis added)
Late in the Summer of 2006, this reasoning was brought to bear in two cases: City of Boise v. Keep the Commandments Coalition [FN13] and Ryan Davidson, et al. v. Janis Wright, in her capacity as Sun Valley City Clerk. [FN14] The first, Keep the Commandments, dealt with the City of Boise's decision to relocate a Ten Commandments Monument from a public city park to a church in downtown Boise. The Coalition circulated an initiative petition seeking, in part, to have a new Ten Commandments monument erected in the same place that the previous monument had stood. The Boise City Council refused to place the matter on the ballot. The Coalition filed suit, and the District Court upheld the City Council's decision. On appeal, the Supreme Court noted the importance of the initiative within our democratic process, and identified it as a tool that compels authorities to listen when nothing else will. [FN15] The Supreme Court reversed, and in the process overruled Gumprecht and Weldon. [FN16] While the Keep the Commandments case represented a change in initiative case law, perhaps the more surprising decision was Davidson . Davidson's initiative sought to permit the regulated growth, sale and use of marijuana in the City of Sun Valley, to make enforcement of private adult marijuana offenses the city's lowest law enforcement priority, (SPECIFICALLY lower than fornication), and to direct the city to advocate for changes in state marijuana laws. Pursuant to the advice of the city attorney, the city clerk rejected the petition on the grounds that it was contrary to state law, and therefore improper content for an initiative. The district court upheld the clerk's action. The Idaho Supreme Court, relying on Keep the Commandments, overturned the district judge's decision, holding that the initiative would not be ripe for review until the initiative had passed. The Court additionally noted that Davidson had not even been permitted to gather signatures to qualify it for the ballot.
It is worth noting that in the Davidson case, the futility of the initiative was compounded because the subject matter of the initiative-- legalization of marijuana--is pre-empted at both the state and federal levels. For example, when, California authorized the limited use of marijuana for medicinal purposes, the United States Supreme Court, in Gonzales v. Raich, [FN17] held that recognition of California's medicinal marijuana permissions would abrogate the Federal Controlled Substances Act. Likewise, even if Davidson's initiative had been statewide in effect, it would be pre-empted by Federal law. Nonetheless, prevailing Idaho case law dictates that, however legally infirm an initiative, it must actually pass before its substance may be struck down on such grounds.
It seems clear there are at least two issues for courts to consider when hearing initiative cases. First, the Court is, appropriately, leery of precluding the people's vote on an issue that has made a showing of a “sufficient grassroots support” [FN18] to be placed on the ballot. Second, the statutes governing the local initiative process, particularly at the city level, are long overdue for some fine-tuning. Idaho Code § 50-501 is sparse in its directives, and the directives that are in place are often not appropriately addressed within city ordinances. Additionally, Idaho Code § 50-501 and Idaho Code § 50-473 seemingly conflict, since they refer to different sections of the code for the same issue. The Davidson Court, in particular, noticed the shortcomings of these statutes by finding that the city clerk, even acting on the advice of the city attorney, lacked the authority to make a threshold determination of the constitutionality of Davidson's initiative. [FN19]

SUGGESTED REVISIONS TO IDAHO'S LOCAL INITIATIVE STATUTES
With the Keep the Commandments Coalition and the Davidson cases in mind, this would be a good session for the legislature to address the shortcomings of the municipal initiative laws. The legislature should start by incorporating the Certificate of Review, provided for statewide initiatives in Idaho Code § 34-1809, into the provisions governing local initiatives. Idaho Code § 34-1809 directs the Attorney General to perform a substantive review of proposed statewide initiatives and make recommendations to the petitioner. This is one of the most beneficial aspects of the statewide initiative law. The review can assist the petitioners in making necessary changes, and at the same time provides an objective review of the initiative for voters. This provision could easily be adapted to permit city attorneys to perform a legal review of proposed initiatives.
Another measure that would likely greatly assist cities is to require petitioners to start the initiative process with a request that the city council consider adopting the measure. If the city council declined to adopt the measure, it would then be placed on the ballot.
Finally, Idaho Code §§ 50-501 and 50-473 should be reconciled. The best solution is to repeal Idaho Code § 50-473 in its entirety, and then use Chapter 5 of Title 50 to enact a series of statutes governing municipal initiatives and referenda, as well as recall elections. The problem with Idaho Code § 50-501 is that it tries to address all three of these election processes (initiative, referendum, and recall) within a single statute. The result is a confusing statute that tangles itself up in its attempt at brevity. The Idaho Code has granted an entire chapter to these three types of elections, presenting an opportunity for the legislature to clearly outline the processes for each of these three elections.

CONCLUSION
Although many were surprised at the Idaho Supreme Court's new direction with regard to city initiatives, both opinions take a reasonable approach. The United States is a government of consent--that*19 is, the people have consented to be governed by those it elects. The Court recognized this important aspect of Idaho and America in choosing to foster political debate rather than impede it with procedural machinations that could remove politically sensitive or controversial topics from the public forum. As Idaho's initiative nears the century mark, it is certain that it will continue to spur debate, cause anguish, and, nonetheless, appear on the state's ballots.

HOW AN INITIATIVE BECOMES LAW

1. The idea!
2. Prepare a draft of the Initiative in substantially similar form to that outlined in Idaho Code § 34-1801A.
3. Collect 20 signatures of qualified electors.
4. Submit to Secretary of State for approval as to form and certification of initial signatures.
5. Attorney General has 20 working days to prepare Certificate of Review.
6. Petitioners receive Certificate of Review and may adopt, modify or ignore recommendations within the Certificate of Review.
7. Petitioner submits Initiative for Ballot Titles.
8. Attorney General has 10 working days to prepare ballot titles.
9. Initiative is circulated for signatures of qualified electors (18 months to collect signatures for state; 75 days for municipal-level initiatives).
10. Secretary of State certifies signatures and prepares ballot, including language explaining the effects of “yes” or “no” votes.
11. Initiative appears on the ballot at next general election.
12. If passed, Initiative becomes law within 30 days of election by proclamation of Governor.
[FNa1]. Brian Kane, Assistant Chief Deputy Attorney General in the Idaho Attorney General's Office, serves as the chair of the Idaho State Bar's Public Information Committee, and is past Chair of the Government and Public Sector Lawyers Section. The author's perspective expressed herein is his own; nothing herein should be interpreted as reflecting the position of the Idaho Attorney General.

[FN1]. “Initiative” refers to the means by which citizens may initiate legislation by petitioning to have a particular bill placed on the ballot and then directly voting for its adoption in a general election. “Referendum” is the means by which citizens affirm or negate an action of a governing body.

[FN2]. Idaho State AFL-CIO v. Leroy, 110 Idaho 691, 718 P.2d 1129 (1986).

[FN3]. 1911 Sess. Laws 281, 301 (§ 24) granted the right to residents of cities with a population of 2,500 or more. In 1967, the population requirement was increased to 15,000. 1967 Sess. Laws 1249, 1259 (§27A).

[FN4]. 104 Idaho 615, 661 P.2d 1214 (1983).

[FN5]. Id. at 617, P.2d at 1216.

[FN6]. 124 Idaho 31, 855 P.2d 868 (1993).

[FN7]. 111 Idaho 502, 725 P.2d 526 (1986).

[FN8]. Id. at 503, P.2d at 527.

[FN9]. Id.

[FN10]. 137 Idaho 798, 53 P.3d 1217 (2002).

[FN11]. Idaho Constitution Article III, § 20. (Adopted November 8, 1988).

[FN12]. 137 Idaho at 802, 53 P.3d at 1221 (emphasis added).

[FN13]. 143 Idaho 254, 141 P.3d 1123

[FN14]. 2006 WL 2741665, p.5, -- P.3d -- (Idaho, 2006).

[FN15]. Id.

[FN16]. Id. at 1126. (The Court also presciently noted that this particular initiative would not pass, which would make any substantive determinations moot. The initiative failed in the November 2006 election.)

[FN17]. 545 US 1, 22 (2005).

[FN18]. Meyer v. Grant, 486 US 414, 425 (1988).

[FN19]. 2006 WL at 3. Since the Court noted that the clerk did not have the authority, the legislature could grant the clerk the authority, in consultation with the city attorney to determine a proposed initiative unconstitutional for purposes of precluding it f??(mt,ibd,d032607)

END OF DOCUMENT


50-MAR Advocate
_________________

[Dwylbtzle]

http://blog.sunvalleyonline.com/index.php/ryan-davidson/2126
check it out!
this is hilarious!
_________________

[Dwylbtzle]

http://blog.sunvalleyonline.com/index.php/ryan-davidson/2195
ANOTHER COURT VICTORY!
_________________

[Dwylbtzle]

we hit the headlines again!
(we made the papers in Christchurch, New Zealand, once!)
http://www.mtexpress.com/index2.php?ID=2005116994
two articles in same paper
http://www.mtexpress.com/index2.php?ID=2005116995
_________________

[Dwylbtzle]

LATEST UPDATE:

WE HAVE NOW JUST GOT FOUR PETITIONS ON THE BALLOT FOR THE ELECTION IN HAILEY, IDAHO
IN NOVEMBER

ONE TO TAX-REGULATE AND SELL MARIJUANA LEGALLY IN STORES

ONE TO MAKE ALL FORMS OF HEMP (FIBRE--SEEDS--PAPER-OIL, ETC) LEGAL FOR COMMERCIAL INDUSTRY

ONE TO LEGALIZE CANNABIS FOR MEDICINAL PURPOSES

ONE TO INSTRUCT THE MUNICIPAL AUTHORITIES TO MAKE ARRESTING AND PROSECUTING CANNABIS USE
THEIR LOWEST PRIORITY
LOWER THAN THE CRIME OF FORNICATION

IF THE FIRST ONE IS PASSED
ALL THE OTHERS ARE AUTOMATICALLY IN EFFECT

BUT IT MAY BE STRUCK DOWN BECAUSE IT'S STILL ILLEGAL ON THE STATE AND FEDERAL LEVEL
BUT OUR SUPREME COURT CASE ASSURED THAT ONLY A JUDGE CAN STRIKE IT DOWN
AFTER IT PASSES
THIS ALLOWS THE PEOPLE, AT THE GRASS ROOTS LEVEL , TO SPEAK THEIR MINDS ON ANY SUBJECT
PREVIOUS LEGAL OR NOT
EVEN SOMEONE AT THE CITY LEVEL CAN SPEAK OUT, BY VOTING
ON ANY CRAZY-ASSED, STUPID, COUTERPRODUCTIVE LAW
EVEN ONE THAT APPLIES AT THE STATE OR FEDERAL LEVEL
THIS ONE POINT IS MORE IMPORTANT TO ME THAN LEGALIZING MARIJUANA
WHICH I NO LONGER SMOKE
AND WHICH MY TWO LIBERTARIAN PARTNERS
HAVE NEVER SMOKED, AT ANY TIMES IN THEIR LIVES!

ORIGINALLY, THE TOWN COUNCIL THOUGHT THEY COULD STOP THE INITIATIVE BEFORE IT WAS EVEN PUT ON THE BALLOT
AND WE DISABUSED THEM OF THAT NOTION
BECAUSE THE SUPREME COURT AGREED WITH US
AND SAID THAT WOULD MAKE A TOWN COUNCIL THE GATEKEEPERS OF THE INITIATIVE PROCESS
WHICH THEY ARE NOT

SO, EVEN IF NONE PASS
OR EVEN IF THEY PASS AND THEN ARE STRUCK DOWN BY A JUDGE
I STILL FEEL LIKE WE STRUCK A BLOW FOR FIRST AMENDMENT RIGHTS

THE RIGHT TO FREE SPEECH
AND THE RIGHTS TO PETITION THE GOVERNMENT


_________________

[Dwylbtzle]

_________________

[Old Geezer]

WOW.

You running for prez anytime soon??

Although I am glad you highlighted the relevant stuff. I was getting a headache reading down to it.
_________________
"You know nothing of hell!"
I am the Angry Man.

"When a small man casts a long shadow, it's sunset" (some Chinese wise guy, who no doubt foresaw Obama)

[Dwylbtzle]

too much pot
_________________

[Dwylbtzle]

Barhar!
One of my two Libertarian muckraker partners fired this nasty letter off to
the city clerk and city attorney of Ketchum (largest of the four towns in
Sun Valley area), and it made the front page of the main paper up there,
The Idaho Mountain Express:
(We alrady have the four ballots, described in the earlier post, on the Hailey ballot for the election Nov., 6th. NOW wer are going for the towns of Ketchum and Sun Valley, and we may do Bellevue, soon, also.

********************************************************

Marijuana advocate battles with Ketchum

Davidson accuses city officials of breaking the law

Ryan Davidson
--------------------------------------------------------------------------------

By TERRY SMITH
Express Staff Writer


Pro-marijuana advocate Ryan Davidson continues to battle with the city of Ketchum in his attempts to place a pot legalization initiative before the city's electorate.

Davidson's latest clash with Ketchum is a scathing letter of Oct. 8 in which he accuses city officials of being "ignorant, corrupt or cowardly" and of violating the law to keep his marijuana legalization initiative off the ballot.

The letter, addressed to Ketchum City Clerk Sandra Cady, is in response to a notification Davidson received from her on Sept. 17, wherein he was informed that his initiating petition had the signatures of only 13 registered voters rather than 20 as required.

Davidson contends in his letter than Cady does not have the legal authority to validate the signatures, and if she did have the authority she likely used current voter registration lists, whereas his petition was submitted more than three years ago.

Meanwhile, Davidson, chairman of The Liberty Lobby of Idaho, has successfully placed marijuana legalization initiatives on the ballot in Hailey for the Nov. 6 general election.

Hailey's electorate will vote on four different legalization initiatives. The first would mandate that the city tax and regulate sales and use of marijuana and lobby for reform of marijuana laws. The other initiatives would legalize medical use of marijuana, make enforcement of marijuana laws the lowest priority for the Hailey Police Department and legalize industrial use of hemp, a marijuana byproduct consisting of the fibrous plant stems.



Davidson has been embroiled in lawsuits with Ketchum, Hailey and Sun Valley since August 2004 when he submitted legalization petitions to all three municipalities. He has won two major court decisions since that time.

In September 2006, the Idaho Supreme Court ruled that Sun Valley did not have the right to determine the constitutionality of proposed initiatives. The second major court victory came last month when U.S. District Court in Boise issued a preliminary injunction that barred the city of Hailey from enforcing its residency requirement against him.

Davidson, a former Bellevue resident, now lives in Garden City.

Davidson said Monday that the strong language in his letter to the city of Ketchum is justified by what he called continual attempts by city officials to thwart his efforts.

"Three years of my life I've been doing this, and they keep pulling this crap over and over," he said. "Yeah, it's a little frustrating. But I'm tired of letting these people break the law."

Davidson contends in his letter that city officials in all three municipalities have "engaged in a pattern of lawless behavior designed to subvert the democratic process. You all sought to prevent your own constituents from voting," he wrote.

He demands that Cady rescind her Sept. 17 letter and certify his petition "according to the law."

"If you fail to do this, you will be the subject of my next lawsuit," Davidson wrote.

Neither Cady nor Ketchum City Attorney Benjamin Worst could be reached for comment.
_________________

[Old Geezer]

[Old Geezer]

Where do youguys get all of the money for all these lawsuits to the supreme court etc????

Or are you lawyers?

Can you even discuss that here?
_________________
"You know nothing of hell!"
I am the Angry Man.

"When a small man casts a long shadow, it's sunset" (some Chinese wise guy, who no doubt foresaw Obama)

[Dwylbtzle]

it wasn't a matter of money
we couldn't get any lawyer who wanted to be involved with legalizing pot
or
some acted all enthused at first-but didn't see millions of dollars in it
so we went to the law library and fought it thru the courts for three years
financing everything ourselves
and won twice so far
of course we lost many times
going up thru the levels

but we won the last two
at the state supreme court level
and in the Federal Court
and those are the ones that count
_________________

[Dwylbtzle]

also
as you know...
I tell everyone I'm a gold miner
but, actually, i'm an iridium miner
so, clearly, i can do anything

_________________

[Old Geezer]