BOISE — In an unprecedented move Wednesday, the Idaho House recessed, to keep alive this year’s legislative session — already the longest on record — while contradicting the Senate’s earlier decision to adjourn. The conflicting decisions raised constitutional questions and drew an opinion from the Idaho Attorney General’s Office, which suggested the House’s recess may have invalidated the Senate’s adjournment.

Just before 11 p.m. Wednesday, the Senate voted to adjourn sine die (with no appointed date for resumption), signaling it meant to end this year’s legislative session. But the House had other plans. About 30 minutes after the Senate adjourned, the House voted to recess until no later than Dec. 31. The decision was intended to keep the Legislature’s “foot in the door,” said House Speaker Scott Bedke, R-Oakley, meaning legislators could reconvene sometime this year.

The Legislature this session passed a bill preventing Gov. Brad Little from spending federal COVID-19 relief money without lawmakers’ involvement — one of Republicans’ primary goals was to trim the governor’s powers during emergencies because they disagreed with Little’s response to the coronavirus pandemic. By recessing, rather than adjourning, the House assures it will be involved in the event additional funds are appropriated to the state.

“We are a little bit in uncharted territory, but I believe this maintains the check-and-balance system, particularly in the area of appropriation,” Bedke said in a news conference Thursday.

Meanwhile, the decision to recess is constitutionally suspect.

Article III Section 9 of the Idaho Constitution says “neither house shall, without the concurrence of the other, adjourn for more than three days …”

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Brian Kane

In letter to lawmakers Thursday, Chief Deputy Attorney General Brian Kane weighed in. The scenario is “unique and without precedent in Idaho,” Kane wrote, but it’s likely the Senate’s decision to adjourn is invalid without the House concurring.

Because the two bodies didn’t agree on adjournment, as mandated by the Idaho Constitution, “one interpretation could be that both chambers are considered to be in an extended recess pending concurrence for adjournment purposes,” Kane wrote in the opinion, which is not a legal decision.

Kane added, there’s a risk a court reviewing the decision could have a different opinion.

The motion to recess passed the House nearly along party lines. Nine Democrats voted against it; just Rep. John McCrostie, D-Garden City, voted in favor.

Ilana Rubel

Ilana Rubel

Rep. Ilana Rubel, D-Boise, said she had constitutional concerns about the decision. “I don’t know if some clever person might bring a lawsuit at some point,” she said Thursday.

Also Thursday, the governor released a statement critical of both the length of the session and the recess decision.

“An unknown end-of-session date and important work left undone create major dysfunction in state government, namely with the implementation of administrative rules,” Little said in a news release. “I know that’s not an exciting topic, but it comes down to the nuts and bolts of state government and our ability to provide service to Idahoans. My executive administration and I will find ways to make state government function and move forward — as we have before — but it will cost time and money.”

Another outstanding question is whether the House, if it decides to reconvene, could compel the Senate to return as well. According to the attorney general opinion, “the Senate will likely have three days in which to return” in that scenario, but “This office is unaware of the mechanism for how either chamber compels the attendance of the other.”

Bedke said he only expects the House to return “in the case of the unforeseen,” meaning if a significant amount of federal funding is given to the state.

“As of May 13, I don’t think it’s likely, but you tell me what the circumstances will be in August or September or October, and then I’ll be able to give you a clearer prediction,” he said.

He added, “This is there if we need it.”