specially concurring.
The majority finds that this case is not justiciable on traditional grounds of standing and ripeness and that Idaho Code § 34-1809 (2002) cannot compel this Court to decide a case that lacks an otherwise justiciable controversy. I concur fully in the analysis of the majority opinion, however, I believe that there are broad public policy and constitutional grounds that should be the basis for this Court to allow the initiative process to proceed. This Court should not interfere with the initiative process established by Article III, Section 1, of the Idaho Constitution, just as it should not interfere with the legislative process of the Legislature of the State of Idaho. Also, I would go further than the majority and find Idaho Code § 34-1809 constitutionally infirm because it violates the doctrine of separation of powers set forth in Article II, Section 1, of the Idaho Constitution.
Article III, Section 1, of the Idaho Constitution states that:
The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature. This power is known as the initiative, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, initiate any desired legislation and cause the same to be submitted to the vote of the people at a general election for their approval or rejection.
Id. This Court has recently determined that the legislature may not interfere with the initiative process. Gibbons v. Cenarrusa, Docket No. 28408, 2002 WL 834149 at *4, - Idaho -, -, - P.3d -, - (May 3, 2002). Similarly, the judicial branch of government, a branch of the government on equal constitutional footing with the Legislature, should not interfere with the initiative process. For this Court to decide the constitutionality of an initiative prior to the voters deciding whether to adopt it as law would be similar to this Court deciding the constitutionality of legislatively proposed legislation. Whether in the context of an initiative or legislation under consideration by the Legislature, I would suggest that Justice Shepard was correct when he stated that “it is exceedingly dangerous for this Court, or any court, to interfere with the legislative process.” Assoc. Taxpayers of Idaho v. Cenarrusa, 111 Idaho 502, 503, 725 P.2d 526, 527 (1986) (Shepard, J., concurring).
Idaho Code § 34-1809 states in part that “[a]ny qualified elector of the state of Idaho may, at any time after the attorney general has issued a certificate of review, bring an action in the Supreme Court to determine the constitutionality of any initiative.” Id. This clause of the statute instructs this Court to consider controversies that would not otherwise be justiciable. Article II, Section 1, of the Idaho Constitution states that:
[t]he powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments *804shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.
Id. The Legislature’s instruction to this Court to hear controversies that would not otherwise be justiciable constitutes an exercise of a power properly belonging to this Court that the legislature is not constitutionally permitted to exercise. The majority acknowledges that the legislature cannot create a justiciable controversy where none exists. I believe we should take the next step and find unconstitutional the relevant clause of I.C. § 34-1809.