concurring in the denial of the writ.
In the ordinary course of events this Court, when asked to issue an alternative extraordinary writ, only enters an order issuing or denying the writ. In the instant matter the membership of the Court insists on the entry of opinions explaining why the Court was correct or erroneous in denying the writ. Hence, I join the parade.
The history of the initiative process is amply discussed in Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943). Here it is sufficient to state that it arose during the Populist movement in part as a result of dissatisfaction with the traditional representative legislative process. The initiative clause of our Constitution was adopted in 1912, and lay dormant for more than 20 years until the legislature in 1933 prescribed the method of exercising the initiative privilege. That clause of our Constitution provides: “The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature.” At this point in time the contents of the petitions have only been proposed, and only if and when the “law” is approved by “a number of voters equal to a majority of the aggregate vote cast for the office of governor,” will such law be enacted. What the Court is asked to do today is no different than if it were asked at an earlier time to enjoin the circulating of petitions or to prohibit the Secretary of State from filing the petitions. Today the initiative remains a proposal, and it will only become enacted if approved by the voters in November.
In my view it is exceedingly dangerous for this Court, or any court, to interfere with the legislative process. Within the duties of this Court is the determination of the constitutionality of actions of other branches of government but only when the time and circumstances are appropriate. I suggest that neither the time nor the circumstances are appropriate during the legislative process.
I find no precedent for this Court prohibiting the voters from expressing their opinions at the polls. In Luker v. Curtis, supra, the voters by initiative enacted in November 1942 the “Senior Citizens Grants Act” which was certified and declared in force November 23, 1942. In January 1943 the Idaho legislature promptly repealed *504that Act. The Court was not asked to, nor did it interfere in the initiative process, nor in the legislative process repealing the initiative. Rather, after the passage of the repealing legislation it was asked to determine, and declared that the repealing legislation was constitutional. In the case of In re Petition of Idaho State Federation of Labor, 75 Idaho 367, 272 P.2d 707 (1954), a petition for an initiative measure was presented to the Secretary of State in April 1954. The Secretary of State, as required by the statute, submitted the petition to the Attorney General for the preparation of a title. The sole issue in the case was the sufficiency of the title prepared by the Attorney General. In June of that year the Court, rather than interfering with the initiative process, disapproved the title and required the Attorney General to “within five days after this decision becomes final, prepare a title in accordance with the views expressed herein and file the same with the Secretary of State.”
At no time in the past has this Court attempted to prohibit either the elected representatives, or the people, from casting a vote on proposed legislation. To argue, as do the petitioners here, that the two legislative processes, one by the elected representatives, and the other directly by the people through the initiative, are different because the representative process contains opportunity for deliberation and/or amendment, is unavailing. Circumstances can easily be postulated illustrating the inevitability of the enactment of unconstitutional legislation absent interference by this Court. Nevertheless, I deem it clear that this Court would not so interfere in the legislative process.
Our legislature has enacted lottery legislation which was later held to be clearly unconstitutional. In 1947 the legislature purported to legalize lotteries in the state of Idaho. This Court did not attempt to interfere with the legislative process, but rather waited until an appropriate case had been brought before the Court in 1953 to declare the legislation unconstitutional. State v. Village of Garden City, 74 Idaho 513, 265 P.2d 328 (1953). Legislation proposed by the initiative process may suffer similar defects.
As stated in Greenburg, The Scope of the Initiative and Referendum in California, 54 Cal.L.Rev. 1717 (1966):
As the periodic assaults on the initiative and referendum arise and fade, it is hoped that the courts will resist urgings to use judicial powers to circumscribe these institutions. While the initiative and referendum may not fit into a given philosopher’s democratic model, and while these powers may, like any others, be misused from time to time, one would hope that the courts will not fall prey to the elitist argument that the people do not know what is best for them and therefore need someone else to tell them. Pragmatically, the institutions work; like their representatives, the people may sometimes approve mischievous or unconstitutional measures, but by and large as studies show, they are good legislators. In a society where government moves further and further from the people, these institutions can help keep it near. If an occasional “bad” measure is passed, let those who urge less democracy instead use the tools of democracy to convince the people of the “rightness” of their view. While the courts have the duty to maintain these institutions within their proper boundaries, they should not be the vehicle for any constriction of those boundaries.
It is suggested by petitioners that two cases require the issuance of the writ prohibiting the initiative measure from the November ballot. I disagree. The case of Legislature of State of California v. Deukmejian, 34 Cal.3d 658, 194 Cal.Rptr. 781, 669 P.2d 17 (1983) involved the reapportionment of the California legislature. There, the legislature had, in September of 1981, reapportioned the California legislature. A referendum election to repeal that legislation was sought, and upheld by the court, which ruled that the legislation was stayed pending the referendum process. Nevertheless the court held that those stayed reapportionment statutes would govern the legislative elections of June and *505November 1982. In June 1982 the voters, by referendum, rejected the legislatively enacted reapportionment. Iniative petitions for yet another reapportionment scheme were submitted and the California court prohibited those proposed from being placed on the ballot, reasoning that the implementation of further changes in reapportionment so close to the time of the June 1984 election would make the selection and seating of any legislature impossible. I suggest that the California imbroglio is a far cry from the instant case. The California court stated:
The general rule favoring post-election review contemplates that no serious consequences will result if consideration of the validity of a measure is delayed until after an election. Under those circumstances, the normal arguments in favor of the “passive virtues” suggest that a court not adjudicate an issue until it is clearly required to do so. If the measure passes then there will be ample time to rule on its validity. If it fails, judicial action will not be required.
Likewise, I do not agree that Gumprecht v. City of Coeur d'Alene, 104 Idaho 615, 661 P.2d 1214 (1983), provides any authority for the issuance of a writ in the instant case. In Gumprecht the legislature had enacted the Local Planning Act of 1975, I.C. §§ 67-6501 et seq. The Court held that such legislative act made mandatory the zoning and planning by local governing boards or established commissions, and hence, “The utilization of an initiative process for zoning matters is inconsistent with the comprehensive statutory procedures mandated by the Local Planning Act of 1975 to be followed in enacting and amending local zoning ordinances and is therefore invalid.” The effect of the Court’s ruling was that there was no authorized initiative process in zoning matters and that all zoning matters had been preempted by the Local Planning Act of 1975. In contrast, in the instant case the initiative process is clearly established and mandated in our Constitution as a reserved right in the people. In Gumprecht, as contrasted with the present case, the Court clearly refused to address or decide the validity of the proposed amendments, or whether the initiative process would defeat due process protections afforded to property owners.
In brief, our Constitution guarantees our people the right to propose legislation through the initiative process. That right is not circumscribed or limited to “good” legislation or “constitutional” legislation. The voters may or may not enact the proposed legislation. If enacted it may be repealed by the next representative legislative session in 1987. We are assured by intervenors that if enacted by the voters, the legislation will be the subject of litigation. The time and circumstances are not appropriate for this Court, if ever, to interfere with or prohibit our people’s constitutional right to exercise the initiative process.
DONALDSON, C.J., concurs.