Abuse of Authority in Idaho CountyGRANGEVILLE--Idaho County Referendum Supporters exceeded the 1,478 signature minimum by 800 signatures by the morning of December 24, 1997. However, Idaho County Clerk Rose Gehring had announced December 23 that, "the sponsors' position is legally incorrect and the election on the referendum would be illegal."
Gehring stated that her decision not to hold a referendum election to repeal the Federal Emergency Management Agency (FEMA) Flood Damage Prevention Ordinance, which was approved by the Idaho County Commission despite overwhelming opposition from citizens, was based upon legal advice obtained from Idaho Attorney General Al Lance and Idaho County Deputy Prosecutor Joe Wright.
Article 3, Section 1, of the Idaho State Constitution states that a referendum is "...the power to approve or reject at the polls any act or measure passed..."
The 19-page FEMA model planning and zoning ordinance was introduced by the federal government right after floods ravaged the area last winter. Ostensibly to avail Idaho County residents of federal flood insurance, the ordinance represents the first planning and zoning laws in county history.
FEMA knew that attempts to implement planning and zoning laws in Idaho County had failed in the past and wanted to take advantage of human tragedy to expand their federal authority to control the lives of Idaho County citizens.
In a letter to Idaho County Commissioner George Enneking (The Idaho Observer, August, 1997) which can only be called blackmail, FEMA official Carl Cook wrote, "We realize that past attempts by the County to pass a floodplain management ordinance have been unsuccessful. However, now might be the time to try again since the desire among citizens and leaders to join the National Flood Insurance Program (NFIP) is greatest following a disaster."
In the same letter, Cook also listed seven reasons why the Idaho County Commission should adopt the ordinance. Reason seven is a direct threat: "If flooding occurs, it is possible that the local government could be held liable by residents and/or businesses who could not get flood insurance because of the decision not to participate in the NFIP."
On April 14, 1997, Idaho County Commissioners unanimously passed the very unpopular FEMA Flood Damage Prevention Ordinance #36. The ordinance was so unpopular that in a hearing prior to adoption of the ordinance, less than one percent of those in attendance were in favor of it.
The county commission hearing to "discuss" the FEMA model planning and zoning ordinance has been purported to have sparked the largest public participation at a county commissioners’ meeting in Idaho County history.
"Immediately after the Idaho County Commission ignored citizens’ overwhelming opposition to #36 and passed the comprehensive, 19-page planning and zoning ordinance into county law, a group of concerned citizens, including citizens whose families have lived here for centuries, began a process, stipulated in law, called a referendum," said Referendum Supporter Tom Simmons.
The referendum process reserves to the people (Article 3 Sec. 1 of the Idaho Constitution) the power to demand a referendum vote on any act or measure and cause the same to be submitted to a vote of the people, provided certain guidelines are followed.
The Clearwater Grange Referendum Supporters was formed and the group has made every effort to follow the letter of the statutes.
No help from the elected
"There is no doubt that the Referendum Supporters’ voter drive garnered more new voters than this county has ever had at one time--the referendum petition drive registered well above 500 new voters," said Simmons.
One would expect that county government would be supportive of any increase in voter participation in county elections, no matter what the reason. Yet, according to Simmons, "One of the elections office assistants even stated that the Referendum Supporters would have to buy a case of voter registration cards for themselves instead of using the ones that their tax dollars bought."
The Referendum Supporters asked Idaho County Clerk Rose Gehring if petition carriers must be registered electors of Idaho County. Although careful research of the Idaho code suggested otherwise, Gehring answered to the affirmative.
Gehring apparently relied on Idaho House Bill #265 which amended the Idaho code last legislative session to require petition carriers to be registered electors of the State of Idaho, not Idaho County. Even if there was a comprehension error on her part, Section 12 of the new law states specifically that it applies to referendum and initiative petitions whose qualifying signatures were submitted on or after July 1, 1997. The Referendum Supporters submitted their petition in May, 1997.
Also, in the new law were revisions to the number of days that the clerk’s office could "sit" on the petition without calling an election.
Rose Gehring declared that she would have sixty days, again basing her decision on the new law, which applied only to petitions filed after July 1, 1997. She has maintained that she was relying on advice from the Idaho Attorney General’s office in her decisions.
"One does not need to be a legal expert to be able to understand plain English and, if the office of Idaho Attorney General Al Lance is giving incompetent advice such as that stated above, he and his staff should be removed from office," said Simmons.
The group’s research committee began to feel that both Idaho State and Idaho County government officials were not supportive of their referendum and retained former Idaho County Prosecutor Wesley Hoyt, for advice.
Hoyt submitted a letter demanding action on the part of Rose Gehring to immediately call an election. Gehring’s response, based on a letter of advice from Idaho Attorney General Al Lance, was to declare that there would be no referendum election. That letter of advice from Lance was solicited by Idaho County Deputy Prosecutor Joe Wright.
Wright authored the original ordinance and obviously favors its implementation. Wright came across an Idaho Supreme Court case that he felt vindicated the county and asked for advice from the Lance. That case is Gumprecht v. City of Coeur d’Alene (1983), the same case that I have repeatedly written about as a bad cite on referendums.
Gumprecht, supra, is a case regarding a city council that was trying to add to an already existing Comprehensive Land Use Plan using the initiative process: The power of the people to INITIATE legislation.
The Idaho Supreme Court held that, "the comprehensiveness (all encompassing; thoroughness) of zoning legislation in Idaho leaves no room for direct legislation of electors through an initiative (initiate; add to) election."
"It is with absurd flexibility that Wright and Idaho Deputy Attorney General William von Tagen, who supported Wright’s contention, stretch Gumprecht, supra, beyond comprehension and insinuate that the people of Idaho no longer have any say in what regulations they must follow," said Simmons.
In Wright’s preliminary review of the referendum petition, he suggested to the group that they should be calling it an initiative, not a referendum.
In light of what Gumprecht holds, one can understand why he would make that statement. If he could convince the Referendum Supporters to shoot for an initiative, his job would be much easier. In fact, Gumprecht simply states that the thoroughness of the articulable standards of the Local Land Use Planning Act of 1975, precludes the initiation of new standards to that act.
A referendum is, straight from the Idaho Constitution, "...the power to approve or reject at the polls any act or measure passed..."
An initiative, separate and distinct, is "the power of the people to propose laws, and enact the same at the polls independent of the legislature."
"Rose Gehring, as Clerk of the District Court, has no authority to take a constitutional civil right away from a group of citizens. The only thing that can lawfully stop the referendum election at this point is a court order. Gehring has ordained herself judge and jury, relying on the erroneous advice of Lance, Wright, von Tagen, and, purportedly, the county commissioners. None of those elected officials have the power, authority, or moral right to determine whether or not Idaho County citizens have the right to organize a referendum to repeal the FEMA Flood Damage Prevention Ordinance," stated Simmons.
The Referendum Supporters are weighing their options carefully and do not rule out prosecuting Gehring criminally for malfeasance of office. The Referendum Supporters may press obstruction charges against Wright.
"The people of Idaho County are not blind to what is happening," concluded Simmons.
For more information, please contact Tom Simmons at: (208) 935-1227