MEMORANDUM
TO:
FROM:
DATE:

Molly J. Huskey, State Appellate Public Defender
Sara B. Thomas, Chief, Appellate Unit
August 15, 2011

RE:

Constitutional Limits On County Supervision Of Adults On Misdemeanor
Probation

I.

Relevant History of Idaho's Adult Probation Supervision Laws
In 1942, Idaho Constitution Article X, §5, was amended to read, in relevant

part: "The state Legislature shall establish a nonpartisan board to be known as
the state board of correction, .... This board shall have the control, direction and
management of ... adult probation and parole, with such compensation, powers,
and duties as may be prescribed by law."
Prior to 1993, the Legislature prescribed the duties of the Board to include
the duty of supervising all persons placed on probation.

See I.C. § 20-219

(1992). In 1993, the Department of Corrections informed the Legislature of the
need to reduce its probation supervision caseload and supported a bill to limit its
duty to supervise probationers to only those convicted of a felony. (House
Judiciary, Rules and Administration Committee minutes, February 17, 1993.) In
addition, the Department informed the Legislature that the courts would then
have responsibility for supervising probationers convicted of misdemeanors.
(House Judiciary, Rules and Administration Committee minutes, January 29,
1993.) As a result, the Legislature amended section 20-219 to limit the Board's
duty to only those on probation after being convicted of a felony. I.C. § 20-219
(1993).
At some point after the law was changed, counties assumed the duty of
supervising adult probationers that had been convicted only of misdemeanors.
(See Fiscal Note, 2008 Idaho Laws Ch. 88 (H.B. 408)(stating "While this bill

states that counties have the responsibility of providing misdemeanor probation
services, almost all counties are already providing such services.").)
In 2008, the Legislature adopted two statutes which purported to officially
place authority to

supervis~

adult misdemeanor probationers in the hands of

misdemeanor probation services provided by the counties, with the functions of
the probation services group to be prescribed by the judiciary.

Idaho Code

section 19-3947 instructed, "Misdemeanor probation office services shall be as
provided in section 31-878, Idaho Code." Section § 31-878, stated, in relevant
part, "The county commissioners shall provide for misdemeanor probation
services to supervise misdemeanor offenders, in those cases where such
probation supervision has been ordered by the sentencing court, and perform
such functions as prescribed by the administrative district jUdge in each judicial
district."
Currently,

adult

probationers

that

have

only

been

convicted

of

misdemeanor offenses are supervised by county entities, whether by a county
office or by private companies that contract with the county for supervision
services.
II.

Because The Constitution Grants Only The Board Of Corrections The
Authority To Supervise Adult Probationers, The Idaho Legislature Cannot
Delegate This Authority To The Counties Or The Judiciary
Despite the fact that the counties assumed the duty to supervise adult

probationers convicted of misdemeanors, and the fact that the Legislature has
now passed legislation to make that assumption of power supported by law, the
counties do not have legal authority to supervise adult probationers. This is true
for two reasons: first, the Idaho Constitution grants the Board of Correction, a
member of the executive branch of government, the exclusive control over adult
probation and parole in those situations where the Legislature has provided by
law that either is available; second, the Legislature cannot delegate authority
assigned by the constitution to a member of the executive branch of government
to either the counties or the judiciary, as the Legislature cannot delegate what it
does not have and cannot violate the constitution's separation of powers
provision.

A.

The Idaho Constitution Grants The Board Of Correction, The
Exclusive Control Over Adult Probation And Parole In Those
Situations Where The Legislature Has Provided By Law That Either
Is Available

The Idaho Constitution creates the Board of Correction and states, ''This
board shall have the control, direction and management of ... adult probation and
parole, with such compensation, powers, and duties as may be prescribed by
law." ID. CONST. Art. X, § 5.

In interpreting this section, the Idaho Supreme

Court has found that, although the Legislature may define the circumstances
under which the Board may exercise its authority, the Board continues to have
exclusive control over adult probation once those circumstances arise.

"The

circumstances under which the functions are to be exercised by the state Board
of corrections are to be prescribed by the laws enacted by the Legislature." State
v. Rawson, 100 Idaho 308, 313 (1979).

The Board, thus, does not have

unfettered control, direction and management of adult probation, but is "charged
with the power to implement those laws enacted by the Legislature regarding
those functions." Id.

Despite this one limitation, ''The board of correction

continues to have exclusive control over adult probation and parole in those
situations where the legislature has provided by law that [probation] is
available ...." Id.
Under this distribution of power, 1) the Legislature can properly limit the
Board's exercise of its duties to only adults convicted of a felony, as it did in
1993; 2) the Board maintains exclusive control, direction and management of
adult probation where supervision is authorized; and 3) the Legislature does not
have authority to control, direct, or manage adult probation when supervision is
authorized.
B.

The Legislature Cannot Delegate Authority It Does Not Have And
Cannot Delegate Authority In Violation Of The Constitution's
Separation Of Powers Provision

The Idaho Constitution grants the Legislature broad authority to legislate.
However, the Legislature cannot delegate to counties or the judiciary the

authority to control, direct, or manage adult probation for two reasons. First, the
constitution places the authority to control, direct, and manage the supervision of
adult probation exclusively with the Board of Corrections, such that the
Legislature cannot delegate authority which it does not have. Second, because
the Board is a member of the executive branch of government, the Legislature
cannot delegate authority belonging to the Board to another branch of
government. However, by placing the authority to control, direct, and manage
supervision of adult probation in the Board of Correction, the Idaho Constitution
limits the authority of the Idaho Legislature to delegate that authority. The Idaho
Constitution does grant the Legislature "plenary authority to legislate in all
matters except those matters prohibited or limited by the Idaho Constitution."
Flores v. State, 109 Idaho 182, 183 (1985). Thus, "the Legislature may enact

any law not expressly or inferentially prohibited by the state or federal
constitutions." Id. (citation omitted).
By assigning the authority over control, direction, and management of
adult probation to the Board, the constitution has expressly forbid the Legislature
from delegating that authority to any other government entity. The Legislature
may not delegate the authority to supervise ad ult probationers to the counties or
the courts as "the Legislature may not delegate what it does not have...."
Suppiger v. Enking, 60 Idaho 292, 91 P.2d 362, 366 (1939). Rather, the Board

itself holds the power to delegate its authority to supervise adult probationers,
and may delegate that authority to the Commission of Pardons and Paroles. See
I.C. §20- 201A(2) (granting the Board the authority to transfer to the Commission
"any and all authority and power as it deems necessary to fulfill the duties,
responsibilities and intent of this chapter and the other duties imposed upon it by
law."); see also Carman v. State, 119 Idaho 642 (1991) (finding, under previous
statute, that when the Commission of Pardons and Parole acts on parole matters
it is exercising authority delegated to it by the Board). Because the Idaho
Constitution grants the Board specific authority over adult probation, the
Legislature does not have that authority and, thus, cannot assign it to another.

Furthermore, Idaho Constitution Article 2, § 1, commonly known as the
separation of powers provision, also limits the Legislature's power to delegate
authority over adult probation because the constitution has assigned that power
to the executive department such that it cannot be exercised by another
department of government. Article 2, § 1 divides the state government into three
"distinct departments, the legislative, executive and judicial," and prohibits the
exercise of powers properly belonging to one department by any another
department. The Board of Correction, with its constitutionally anchored control
over adult probation, is recognized as an agency of the executive branch. See
Spanton v. Clapp, 78 Idaho 234,299 P.2d 1103 (1956); I.C. § 20-201. Thus, the

Legislature cannot delegate the authority specifically assigned to the executive
branch to another department of government, such as the judicial department.
Thus, that portion of I.C. § 31-878 which purports to grant the administrative
district judge in each judicial district the authority to prescribe the functions
performed by county probation services is also unconstitutional.
In light of the unconstitutionality of the statute which purports to place the
authority to supervise adult misdemeanor probation within the purview of any
entity but the Board of Corrections, that statute is null, void and unenforceable.
See State v. McCoy, 94 Idaho 236,241(1971) (finding statute in which legislature
purported to exercise authority which constitutionally belonged to the judiciary
was null, void and unenforceable).