School facilities bill is the right thing, done in the wrong way

The Idaho Supreme Court ruled in 2005 that the Legislature has the constitutional duty to provide for the construction and maintenance of safe public schools for Idaho children. The state has the primary responsibility for school facilities, not local property taxpayers. Those of us on the Court expected to see some legislative action to comply with the ruling, but little of substance has been done since then to get the job done.

In recent years there has been a growing chorus of responsible legislators, demanding that action be taken to comply with the constitutional mandate. Studies showing the deplorable condition of public school facilities and unrest amongst property taxpayers helped to fuel that chorus. This year, to his great credit, Gov. Brad Little called for spending $2 billion dollars over the next 10 years in an attempt to address the problem.

House Speaker Mike Moyle, who had not previously demonstrated a great deal of interest in school facilities, undoubtedly saw the growing groundswell for action and also recognized that corrective legislation would provide a great vehicle for a tax cut that would be popular with his voters. Thus was born House Bill 421, which calls for spending $200 million per year on school facilities, while reducing corporate and individual taxes by $60 million. It’s hard to figure out how that math works.

Aside from the accounting problem, a constitutional issue — the one-subject rule — raises its foreboding head. Article 3, section 16 of Idaho’s Constitution says that every legislative act “shall embrace but one subject and matters properly connected therewith.” A violation of the rule can result in a court voiding the act. The Legislature frequently ignores the rule, which is not a problem if there is no court challenge.

HB 421 has several subjects besides just amending school facility financing laws and the seemingly unrelated income tax statutes. It amends a number of other laws, including those pertaining to the State Board of Education, school bond elections, property taxes, distribution of Lottery income, state public defenders and several others. In the event of a court challenge, the state would be hard-pressed to show a connection amongst all of the bill’s provisions.

Enough money is involved here that a litigant might come forward to challenge the conglomeration of subject matter. Although it would not be a silver bullet, the bill sponsors should immediately call upon the Attorney General to issue an official opinion, attesting that HB 421 complies with the one-subject rule. That may help to get the bill enacted and, at the same time, discourage court challenges. The bill does not have a severability provision so the entire bill would go down if two unrelated provisions were proven in court. 

As far as the substance of the bill goes, there is much to like and much to dislike. On the minus side — the money is woefully insufficient to address the magnitude of the problem; a much greater state investment should be made at the front end to remedy dangerous school conditions, particularly in rural areas; and the funding formula contains inequities. On the plus side — a bird in the hand is worth two in the bush; it has taken 19 years to gain the attention of the Legislature and we can’t afford to kick the can further down the road; and any problems can be remedied in subsequent legislative sessions if the bill passes in its current form. 

With the Legislature seemingly intent on taking action this year, a strong effort should be made in the Senate to remove some of the unrelated subjects, particularly the income tax provisions, and amend some of the obnoxious provisions. The public must weigh in to influence the outcome. If HB 421 reaches the Governor’s desk in the present form, it is about a 50-50 proposition as to whether he should approve it.

Jim Jones is a Vietnam combat veteran who served 8 years as Idaho Attorney General (1983-1991) and 12 years as a Justice on the Idaho Supreme Court (2005-2017). His columns are collected at JJCommonTater.com.