Idaho Attorney General'S Annual Report Opinions Selected Informal .

95- 1OPIN IONS OF THE ATTORNEY GENERALPursuant to Idaho Code § 67-6505 , the board of county comm i ssion ers and a city counci l are authorized to establish j oint plan ning and zoningcommissions governing an area of impact. The code section provides, in rel e v ant part:[T] he board of county commissioners of a county, togetherw i th the counci l of one or more c ities within a county . . . areempowered to cooperate in the establ ishment of a j oint plan n i ng, zoning, or planning and zoning commission, here inafter referred to as a joint comm ission . . . a joint comm is sion i s further authorized and empowered to perform any ofthe duties for any local members govern i ng board when theduties have been authorized by that member government.The authority of this joint comm i ssion is l i m ited, however, by the lan g uage found in Idaho Code § 67-6504 "excluding the authority to adopt ordi nances." A joint plann ing and zoning commission may not exercise the leg i s l ative function of e i ther of the member governing boards w h ich created it.The l anguage of Idaho Code § 67-6526(a) is somewhat amb iguousand has been read by some m u n icipal i t ies as authorizing c i t ies to act uni lat erally and w ithout the consent of counties in creating areas of impac t . Thel anguage of that subsection (a) provides:Areas of city impact-Negotiation procedure.-( a) The governingboard of each county and each city therein shal l , prior to October I , 1 994,adopt by ord i nance fol l owing the notice and hearing procedu res prov ided insection 67-6509, Idaho Code, a map ident i fying an area of c i ty impact withinthe unincorporated area of the county. By mutual agreement, this date maybe extended to November I , 1 994. A separate ord i n ance pro v iding for appl i cation of plans and ordinances for the area of city i mpact shal l be ado pted nol ater than J anuary I , 1 995 . Th i s separate ordinance shal l provide for one ofthe fol lowing:(I)Application of the city pl an and ordinancesadopted under this chapter to the area of c i ty impact; or6

OPIN IONS OF THE ATTORNEY GENER A L95- 1(2)Application of the county plan and ordimmces adopted under t h i s chapter to the area of city i mpact;or(3)Applicat ion of any mutua l ly agreed uponplan and ord i nances adopted unde r this chapter to the area ofcity impact.Areas of city i mpact, together with plan a nd ordi nance requ i rements, may cross county boundaries by agree ment of the c i ty and county concerned i f the city i s withinthree (3) miles or the adjoining county.In reading t h i s subsect ion in conjunction w ith all of chapter 65 and,in particul ar, sections 67-6504, 67-6505 and the remainder o f 67-65 26, it isclear that the ordinance govern i n g ihe area of impact must be adopted b y boththe city council and the board of county commissioners. Section 676526(a)( 1 ) merely states that a plan drafted by a c i ty may be applied to thearea of impact. The appl ication of the c i t y 's plan to the area of impact onlyoccurs when ordinances adopt i n g such p l an are enacted by t he city co unciland the board of county comm i s sioners.Constitutional Limitations on PowerStatutes are to be cons trued as being consistent with constitut i onallim i tations on power. Reading Idaho Code * 67-65 26(a)( 1 ) as giving c itiesthe power to act un i l aterally in adopting ordinances govern i n g unincorporat ed areas of impact wo u ld render it uncons t i tutional as v iolat i n g art. 1 2, sec. 2of the Idaho Constitut ion.Art. 1 2 , sec. 2 or the Idaho Consti tution pro v ides:2.Local Po l ice Regu lations A uthorized.-Anycounty or incorporated c i ty or town may make and e nforce,within its limi ts, all such local pol i ce, san i tary and other reg ulations as are not in confl ict with its charter or with the gen eral l aws.(Emphasis added.)7

95- 1OPINIONS OF THE ATTORNEY GENERALThe power of cities and counties to enact or amend ordinances onlyexists within the l imits of the c ity or county. For a city, this means w ithin thecity's i ncorporated limits and for a county, this means the unincorporated arealying outside a c i ty. The i ssue presented by art. 1 2, sec. 2, has been describedby the Idaho S upreme Court as an issue not of conflicts but of power. I nClyde Hess D istributing Co. v. Bonneville County, 69 Idaho 505 , 2 1 0 P.2d798 ( 1 949), the court held :It also appears to be conceded that county regu l a tions passed under such constitutional grant of power, cannotbe enforced in a municipality in a field reserved to munici pal ities under the const itution, whether such field has beenoccupied by mun icipal ordi nance or not. Therefore, the factthat it does not appear that the regulation in question is i nconflict with any existing ordinance o f a municipality i s notimportant. The question is one of power and not one of con flict.Id. at 5 1 1 , 2 1 0 P.2d at 804 (emphas is added; citations omitted). The courtwent on to note that because this is a question of power and constitutionalprov i sion, it m a kes no d i fference whether or not the legislature, by statute,authorizes a county or a c ity to undertake the thing it is doing:The legislature can pass a general l aw effective upon all, butit cannot restrict the constitutional right of a munic ipal ity tomake pol ice reg u l ations not in confl ict or inconsistent withsuch general law. An attempt by the legislature to grantauthority to a county to make pol ice regulations effectivewithin a municipal ity would be an infringement of such con stitutional right o f a m unicipal ity.Id. at 5 1 2, 2 1 0 P.2d at 805 .In Hobbs v. A brams, I 04 Idaho 205 , 657 P. 2d 1 073 ( 1 983), the courtreconfi rmed its earl ier ru l ing in Hess. In addi tion, the court went on to setforth the restrictions which apply to an exercise of power by a county ormunicipality under art. 1 2 , sec. 2 o f the Idaho Consti tution:8

OPINIONS OF THE ATTORNEY GENERAL95- 1This Court has stated that there are three general restrictionsthat appl y to ord i n ances enacted under the authority con ferred by this constitutional p rovision : "( I ) the ord inance orregulation m ust be confined to the l im i ts of the governmen tal body enacting the same, (2) it m ust not be in conflict withother general laws of the state, and (3) i t m ust not be anu nreasonable or arbitrary enactment."1 04 Idaho at 207, 657 P.2d at 1 075 (citation om i tted).A rt. 1 2, sec. 2, was applied to the issuance of a building permi t by acounty u pon land which was subsequently annexed by the City of Boise inBoise C i ty v. B laser, 98 Idaho 789, 572 P.2d 892 ( 1 977). In that case, thebuilders obtained a building permit for multi-unit housing which was to beconstructed outside the c i ty l im its.Construction was delayed due toinclement weather and when B laser attempted to resume construction, thel and had been annexed by B oise City. The construction project was ulti mately a l l owed to proceed but on grounds of estoppel . I n the course of i tsopinion, the court d iscussed art. 1 2, sec. 2, and the effect it has upon the valid ity of county building permi ts issued on l and within an incorporated city.Regarding the effectiveness of a county building permi t within the city l i m i ts, the court stated :Generally speaking, to give effect to a county permi t withi nc i ty l im its would be t o v io late the separate sovereignty pro v isions of Idaho Const. art. 1 2, § 2, and the careful avoidanceof any county/city j urisdictional conflict or overlap which i ssafeguarded therein.Id. at 79 1 , 572 P.2d at 895 .Under the statutory scheme found in chapter 65, title 67, Idaho Code,the governing board for an u n incorporated area, including the area of impact,is the board of county commi ssioners. The legislative power possessed by theboard of county commis s ioners may only be exercised by the board.L i kewise, the legisl ative power of a c i ty counc i l i s limited to the city's cor porate l i m i ts. Any reading granting a city the power to enact l and use ordi nances affecting unincorporated areas is inconsistent with chapter 65 of title9

95- 1OPINIONS OF T H E ATTOR NEY G ENERAL67. The exercise of legislative power beyond the corporate limit is also aclear violation of art. 1 2 , sec. 2 o f the Idaho Constitution.A U THORITIES C ONSIDERED1.Idaho Constitution:Art. 1 2, sec. 2.2.Idaho (a) .67-6526(a)( I ) .67-6526(d).Idaho Cases:Boise City v. B laser. 98 Idaho 789, 572 P.2d 892 ( 1 977).Clyde Hess D i stributing Co. v. Bonneville County, 69 Idaho 505 , 2 1 0P.2d798 ( 1 949).Hobbs v. Abrams, 1 04 Idaho 205, 657 P.2d 1 073 ( 1 98 3 ) .DATED this 9th day of M arch, 1 995 .ALAN G. LANCEAttorney GeneralAnalysis by:W ILLIAM A . VON TAGENDeputy Attorney GeneralD i re ctor, Governmental and Publ ic Affairs10

OPIN IONS OF THE ATTOR N EY G E NERAL95-2ATTORNEY GENERAL OPINION NO. 95-02TO:R. M i chael Southcombe, ChamnanIdaho S tate Tax CommissionSTATEHOUSE MAILPer Request for Attorney General 's OpinionDear Mr. Southcombe:QUESTION PRESENTEDDoes passage of Pub. L. No. I 04-7, the Self-Employed HealthInsurance Act, which was signed i nto law by Pres ident Cl i nton on April 1 1 ,1 995 , apply retroactively to the benefit of Idaho taxpayers on their Idahoincome taxes for 1 994?SHORT ANSWERNo. The provisions of the Self-Employed Health Insurance Act applyretroactively for 1 994 federal tax returns, but not for 1 994 Idaho tax returns.U nless the Idaho Legislature acts affirmati vely to i ncorporate this recentchange in fede ral tax law retroactively into Idaho law, self-employed Idahotaxpayers cannot avail themselves of this tax deduction on their Idaho taxret u rn s for the 1 994 tax year.A.BackgroundThe " Self-Employed Health Ins u rance Act" ( Pub. L. No. I 04-7)amends section 1 62 of the Internal Revenue Code to reinstate as a deductiblebus i ness expense certain health care costs i nc u rred by self-employed ind i v id uals (sole proprietors and members of partnerships). Prior to December 3 1 ,1 99 3 , self-employed i nd i v iduals could deduct twenty-five percent of theamount paid for health i nsurance for the i nd ividual and the individ ual 'sspouse and dependents. This deduction exp i red on December 3 1 , 1 993, andhas not been a deduction available for comput ing federal taxable income fortax years begi n n ing on and after January I , 1 994. Pub. L. No. I 04-7 rein state s this deduction retroactively to January I , 1 994, and increases theamount of the deduction from t wenty-five to thirty percent for tax years11

95-2OPINIONS OF THE ATTORNEY GENERALbeginning on and after January I, 1 995 . President Clinton signed the bill intolaw on April 1 1 , 1 995.To take adv antage o f this deduction, federal taxpayers who havealready filed 1 994 returns w ill be requ ired to file amendments to their 1 994federal i ncome tax returns.B.Application of Pub. L. No. 104-7 to the State of IdahoThe Idaho I ncome Tax Act (chapter 30, t i tle 63, Idaho Code) defines"taxable income" by incorporating the definitions found i n the I n ternalRevenue Code, subject to certain mod i fications. Idaho Code § 63-3022 pro v ides in pertinent part:The term "taxable i ncome" means "taxable i ncome"as defined in section 63 of the I nternal Revenue Code, adjust ed as provided i n this chapter. . . . .Idaho Code § 63-3004, as most recently amended by 1 995 IdahoSession Laws, chapter 79, § 1 ( H.B. 1 1 7 ) defines the term "Internal RevenueCode" as follows:(a)The term "Internal Revenue Code" meansthe Internal Revenue Code of 1 986 of the United States, asamended, and in effect on the first day of January, 1 995 .(b)Prov is ions of the I nternal Revenue Codeamended, deleted, or added prior to the effective date of thelatest amendment to this section shall be applicable for Idahoincome tax purposes on the effective date provided for suchamendments, deletions, or additions, i ncluding retroactiveprov isions.The Internal Revenue Code "as amended, and i n effect on the firstday of January, 1 995" d id not permi t a ded uction for health care costsincurred by self-employed i nd i v iduals. Subsection (b) of Idaho Code § 633004 recogni zes, for Idaho income tax purposes, retroactive effective dates ofamendments to the Internal Revenue Code, but only i f the amendment to theI nternal Revenue Code is "prior to the effective date of the latest amendment12

OPINIONS OF THE ATTOR N EY GENERAL95-2to this section." The l atest amendment to Idaho Code § 63-3004 was by H . B .1 1 7 o f the 1 995 Idaho Legislature. That b i l l , now 1 995 Idaho Session Laws,chapter 79, § I, was signed i nto l aw by Governor Batt on March I 0, 1 995. Itseffective date was January I, 1 995 . Both dates are before Pres ident Clinton 'ss ignature of Pub. L. No. I 04-7 on A pr i l 1 1 , 1 995. Thus, the deduction forhealth care costs i ncurred by sel f-em ployed i ndiv iduals i n 1 994 is not adeduction avai l able for the computati on of Idaho taxes under present Idaholaw.C.Delegations of AuthorityYour request l etter also asks about possible constitutional impl ica t ions of adoption o f Pub. L. No. I 04-7 through H . B . 1 1 7. S ince H . B . 1 1 7 doesnot effect an adoption of Pub. L. No. I 04-7, issues about possible improperdelegations of legi sl at i ve authority do not ari se. I t is appropriate to note,however, that part of the reason for annually updating Idaho Code § 63-3004i s to avoid any possibil ity o f an apparent adoption of federal law changes thatsign i ficantly affect state tax policy without legislative approval.The Idaho Supreme Court has in the past struck down statutes thatprovide for simi lar legislative delegations to Congress. See Idaho Savi ngsand Loan Association v. Roden, 82 Idaho 1 28 , 350 P.2d 255 ( 1 960). In thatcase, the Idaho S u preme Court considered legislative provisions whichrequired Idaho savings and l o m associations to i nsure their accounts with theFederal S av ings and Loan I nsurance Corporation in the S tate of Idaho.However, to obtai n such i nsurance, sav ings and loan associations wererequired by federal law to a bide by and confonn with the National HousingAct and any amendments thereto, and the rules and regulat ions of the FederalHome Loan Bank Board. Finding the legislation to be an u nconstitutional del egation of legislative power, the court said:The legal ax iom that all legislative power is vested i nthe Legislature o f the S tate o f Idaho has been set forth i nS tate v. Nelson, 36 lclaho 7 1 3 , 2 1 3 P. 358 ( 1 923 ) . The leg isl ature cannot delegate its authority to another governmentor agency i n v iolati on of our Constitution. State v. Nelson,supra; State v. Heitz, 72 Idaho I 07, 238 P.2d 439 ( 1 95 1 ).13

95-2OPINIONS OF THE ATTORNEY GENERAL. . . Thus, it i s demonstrated that the unconstitutionalprov isions delegating to the Congress and the Home LoanBank Board the legislative power and function to makefuture laws and regulations govern ing appellant's businessand i ts right to remain in business, are not severable from thepro v i s ions req u i r i n g appe l l ant to obtain insurance ofaccounts by the Federal S av i ngs and Loan I nsuranceCorporation. The provisions requ i ring such insurance aretherefore unconstitutional and void.82 Idaho at 1 34-35.The rule which has developed i n Idaho regarding delegation to otherpublic bodies is that delegation is perm i ssible where the leg i s lature establish es the standard Ci' defines the l i mits by w h ich rulemaking or fact finding maybe j udged. Hc1,·1ever, it is i m pe rmissible for the legislat u re to delegate toanother publk. body the power to set the standard itself. The rule has alsobeen analyzed as a distinction between the delegation of legislative functionsand executive functions. See, e.g . , Kerner v. Johnson, 99 Idaho 433, 583 P.2d360 ( 1 978); .State v. Kellogg, 98 Idaho 54 1 , 568 P.2d 5 1 4 ( 1 977); Board o(County Commissioners v. Idaho Health Fac i l ities Authority, 96 Idaho 498,53 1 P.2d 588 ( 1 975); Boise Redevelopment Agency v. Yick Kong Corp., 94Idaho 876, 499 P.2d 575 ( 1 95 1 ) .For this reason , the Idaho Legislature may adopt existing p rovisionsof the Internal Revenue Code as a part of the Idaho Income Tax Act, but itcannot adopt, as Idaho law, unknown and unknowable future federal provi s ions.Final l y, it is important to note that in certain circumstances it is pos sible for the Idaho Legisl ature to val idly make retroactive changes to taxstatutes. A ful ler analysis of retroactivity of tax legislation is found inAttorney General Opinion 9 1 -2 . See 1 99 1 Idaho Att'y Gen. Ann. Rpt. 2 1 .A UTHORITI ES CONSIDERED1.Idaho Code and Session Laws:Idaho Code § 63-3004.14

OPINIONS OF THE ATTORNEY GENERAL95-21 995 Idaho Session Laws, chapter 79, § I .2.Idaho Cases:Board of County Commissioners v. Idaho Health Facilities Authority,96 Idaho 498, 53 1 P.2d 588 ( 1 975).Boise Redevelopment Agency v. Yick Kong Corp., 94 Idaho 876, 499P.2cl 575 ( 1 95 1 ).Idaho Savings & Loan Association v. Roden, 82 Idaho 1 28 , 350 P.2d255 ( 1 960) .S t !te v. Heitz, 72 Idaho I 07, 2 38 P.2d 439 ( 1 95 1 ).State v. Kel logg, 98 Idaho 54 1 . 568 P.2d 5 1 4 ( 1 977).S tate v. Nel son, 36 Idaho 7 1 3 , 2 1 3 P. 358 ( 1 923 ).3.Other Authorities:Attorney General Opinion No. 9 1 -2, 1 99 1 Idaho Att ' y Gen. Ann. Rpt.21.The Self-Employed Health I nsurance Act (Pub. L. No. 1 04-7).DATED this 20th day of Apri l , 1995 .ALAN G . LANCEAttorney GeneralAnalysis by:TED S PA NGLERDeputy A ttorney GeneralIdaho Tax Commission15

95-3OPINIONS OF THE ATTORNEY GENERALATTORNEY GENERAL OPINION NO. 95-03To :R. M ichael Southcombe, Chai rmanIdaho State Tax Comm i ss ionSTATEHOU S E MAILPer Request for Attorney Genera l 's OpinionQUESTIONS PRESENTEDI.W hat i s the current statu s of Idaho Code § 63-923?2.tus ofHow is the new l aw, House B i l l 156, to be i mplemented given the staIdaho Code § 63-923?C ONCLUSION1.Through legis l ative oversight, the provisions of Idaho Code § 63-923are not modified by any other statute. Idaho Code § 63-923 i s , however,incapable of implemen tation and l ikely to be struck down if presented to acourt.2.Idaho Code § 63-923 i mposes no i m pediment to the ful l implementation of House B i l l 156.BACKGROUNDOn November 7, 1978, the electorate of the State of

This volume should be cited as: 1995 Idaho Att'y Gen. Ann. Rpt. Th us, the Official Opinion 95-0 I is found at: 1995 Idaho Att'y Gen. Ann. Rpt. 5 Similarly, the Informal Guideline of January 26, 1995, is found at: 1995 Idaho Att'y Gen. Ann. Rpt. 65 The Certificate of Review of July 14, 1995 is found at: