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Idaho's Office of Attorney General issues legal analysis of 'absence from the state' statute

Idaho Statehouse
Posted at 4:59 PM, Oct 07, 2021
and last updated 2021-10-08 16:02:50-04

BOISE, Idaho — Idaho's Office of the Attorney General sent a 16-page legal analysis of the constitutional statute regarding the transfer of power of the governor to the lt. governor when the governor is absent from the state.

Related: What Idaho's constitution says about transfer of power from governor to acting governor

In a letter sent to Lt. Gov. Janice McGeachin, Gov. Brad Little wrote “I am not aware of any official business that will require your services in an acting Governor capacity. Thus, you are not authorized to act as Governor during my brief time out of state.”

Little continued, “in the event my absence renders me unable to carry out the duties of the office, my staff will notify you immediately."

Governor Little's letter to Lt. Gov. Janice McGeachin

Related: Gov. Little overturns McGeachin's executive order banning COVID-19 mandates

"It would be absurd for the mere physical absence of the governor from the state to trigger the devolution of his duties to the lieutenant governor," said Brian Kane, Chief Deputy for Idaho's Office of Attorney General. "Given the technologies available in this day and age, there is no impediment to the governor performing his duties remotely. Such a rule would require that the 'movements of the governor should be watched, with the view that the lieutenant governor or president pro tempore should slip into his seat, the moment he stepped across the borders of the state.'"

Kane said if it the statute meant physical absence it may cause a domino effect.

"If the governor were unable to act as governor outside the state, he would be unable to carry out this function via in-person meetings and conferences with other governments. This would be an absurd result," said Kane.

"In short, while this is a close legal question, as demonstrated by the split between the states that have addressed this question, a reviewing court could conclude that Governor Little's interpretation of 'absence from the state' in article IV, section 12 of Idaho's Constitution as expressed in his July 29, 2021 letter is correct and that “absence from the state” means effective absence, not physical absence," wrote Kane in the conclusion.