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idaho/1001163.json

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+"{\"id\": \"1001163\", \"name\": \"Chris HYTA, Plaintiff-Appellant, v. Lloyd FINLEY, individually, d/b/a Kopper Keg, Defendant-Respondent\", \"name_abbreviation\": \"Hyta v. Finley\", \"decision_date\": \"2002-08-13\", \"docket_number\": \"No. 25906\", \"first_page\": \"755\", \"last_page\": \"758\", \"citations\": \"137 Idaho 755\", \"volume\": \"137\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:30:17.035492+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice TROUT, Justices WALTERS, KIDWELL and EISMANN concur.\", \"parties\": \"Chris HYTA, Plaintiff-Appellant, v. Lloyd FINLEY, individually, d/b/a Kopper Keg, Defendant-Respondent.\", \"head_matter\": \"53 P.3d 338\\nChris HYTA, Plaintiff-Appellant, v. Lloyd FINLEY, individually, d/b/a Kopper Keg, Defendant-Respondent.\\nNo. 25906.\\nSupreme Court of Idaho, Boise,\\nMarch 2002 Term.\\nAug. 13, 2002.\\nFlammia & Solomon, Coeur d\\u2019Alene, for appellant.\\nFred W. Gabourie Jr., Post Falls, for respondent.\", \"word_count\": \"1545\", \"char_count\": \"9306\", \"text\": \"SCHROEDER, Justice\\nON THE BRIEFS\\nThis is an action on the dissolution of a partnership. Chris Hyta (Hyta) seeks damages in the dissolution, winding up, accounting and termination of an alleged partnership with Lloyd Finley (Finley).\\nI.\\nFACTUAL BACKGROUND\\nHyta received an inheritance in 1984 which he wanted to invest. Finley, who was an acquaintance, was the sole owner of the Kopper Keg in Kellogg. Hyta and Finley signed an agreement whereby Finley agreed to sell Hyta a \\\"one-half interest\\\" in the Kopper Keg for $50,000. An attorney drafted the agreement, although both Hyta and Finley say that the attorney did not represent either one of them. Hyta paid Finley $18,000 that day, and the remaining $32,000 on December 19 of that year. Finley made regular payments to Hyta from 1984 through 1991.\\nAccording to Finley, the Kopper Keg was a bar, but its primary profits came from the illegal gaming machines it was running. Other establishments in the county were allegedly running the same unauthorized gambling devices and poker machines until June, 1991, when the FBI raided 58 of these taverns. This, according to Finley, \\\"marked a sudden end\\\" to profits from the Kopper Keg. Finley states that since there were no more profits, the object of their \\\"Partnership\\\" ended. Therefore, in June, 1991, Finley informed Hyta that he would no longer be paying any share of the proceeds from the gambling devices, because they had been seized by the FBI in the raid. Hyta made demands for Finley to resume payments, but Finley refused. This case followed.\\nII.\\nPROCEDURAL BACKGROUND\\nHyta filed a complaint in district court on October 12, 1993, alleging that he owned an undivided one-half interest in the Kopper Keg. He asked the court to dissolve the partnership and order payment of profits and assets, costs and attorney fees. Finley counterclaimed, alleging that the money was a personal loan. The district court denied Hyta's motion for partial summary judgment and Finley's motion for summary judgment. In late 1995 both parties filed for partial summary judgment. The district court denied Hyta's motion and granted Finley's motion which requested that Finley's real property not be considered a partnership asset. The court bifurcated the trial: the jury would determine the nature of the business/legal relationship between the parties. If the jury found that there was a partnership, the court would hold an accounting phase.\\nSeveral procedural difficulties delayed the trial. The most notable is a hearing in June of 1996 on a motion for sanctions against Finley's attorney, who did not attend, although he was served with notice. Hyta's attorney alleged that she was not receiving the information she needed to prepare adequately for the trial; that she had not yet received a list of witnesses; that Finley had not provided any receipts or invoices from the operations (both legitimate and illegal) from the Kopper Keg. The court set an order with a 30 day deadline. Finley missed the deadline by more than a month, and at a hearing on July 30, 1996, requested clarification of the specific documents requested. He had provided Hyta with some pre-trial documents the day before but still had not provided the others contained in the order. The court granted Finley an extension to produce all requested documents by September 1, 1996.\\nA jury trial was finally held in February, 1997. The jury found that 1) there was a legally binding contract; 2) Hyta did not make all the required payments on time; and 3) Hyta and Finley did not enter into a partnership known as the Kopper Keg, wherein Finley would be managing partner. The court entered a JNOV on February 20, 1998, finding that Hyta did make the requisite payments and that a partnership did exist. A special master was appointed for the accounting, and the court ordered Finley to disclose all financial records and transactions that the special master required, or it would consider sanctions. Finley's attorney was not present at that hearing.\\nOn May 13,1999, a bench trial was held to account for the assets and profits of the partnership. The special master presented his findings. The special master concluded that the Kopper Keg operated at a profit from 1992-1998, totaling $205,094.53. Finley testified that the Kopper Keg had not turned a profit since 1991. The only written records he had were his personal income tax returns. The district court issued an opinion holding that 1) the partnership ceased to exist after 1991, and 2) that insufficient evidence prevented an equitable accounting to wind up the partnership. Hyta appealed.\\nIII.\\nTHE DISTRICT COURT ERRED IN DETERMINING THE PARTNERSHIP TERMINATED IN 1991\\nDissolution does not result in the termination of a partnership. Uniform Partnership Law, Title 53, Chapter 3. This Court analyzed the process of terminating a partnership relationship in Mays v. Davis, 132 Idaho 73, 75, 967 P.2d 275, 277 (1998), noting the following:\\nThe dissolution of a partnership \\\"is the change in the relation of the parties caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business.\\\" Kelly v. Silverwood Estates, 127 Idaho 624, 628, 903 P.2d 1321, 1325 (1995) (citing I.C. \\u00a7 53-329). A partnership is not terminated upon dissolution, but continues until the winding up of the partnership affairs is completed. Arnold v. Burgess, 113 Idaho 786, 790, 747 P.2d 1315, 1319 (Ct.App.1987) (citing I.C. \\u00a7 53-330; Heileson v. Cook, 108 Idaho 236, 697 P.2d 1250 (Ct.App.1985)). Winding up is the process of settling partnership affairs after dissolution, and generally involves an accounting and liquidation of the partnership's assets.\\nThe change in relationship that resulted in dissolution happened when Finley stopped making payments to Hyta in 1991. However, a partnership does not end upon dissolution but \\\"continues until the winding up of the partnership affairs is completed.\\\" Id. at 75, 967 P.2d at 277.\\nWinding up includes an accounting and liquidation of the partnership's assets. Ramseyer v. Ramseyer, 98 Idaho 47, 51, 558 P.2d 76, 80 (1976), states that \\\"a partnership relationship is legally ended and its affairs completed when the three steps of 1) dissolution, 2) winding up or liquidation, and 3) termination are finished.\\\" The district court did not have the authority to make the determination that the partnership was terminated until an accounting and asset liquidation had been done. An accounting and liquidation still have not been done. The district court erred in finding that the partnership terminated in 1991.\\nIV.\\nTHE LEGALITY OF THE CONTRACT\\nA question not raised by the parties or addressed by the district court is whether the partnership between Hyta and Finley was an illegal contract. Neither party suggests that the contract might be void as against public policy if the parties entered into it with the intention of sharing profits from the illegal gaming activities. In Quiring v. Quiring, 130 Idaho 560, 944 P.2d 695 (1997), this Court said that:\\nWhether a contract is against public policy is a question of law for the court to determine from all the facts and circumstances of each case. Stearns v. Williams, 72 Idaho 276, 283, 240 P.2d 833, 840 (1952). Public policy may be found and set forth in the statutes, judicial decisions or the constitution. Id. at 287, 240 P.2d at 842. An illegal contract is one that rests on illegal consideration consisting of any act or forbearance which is contrary to law or public policy. 17A AM.JUR.2D CONTRACTS \\u00a7 239; see Miller v. Haller, 129 Idaho 345, 924 P.2d 607 (1996). A contract prohibited by law is illegal and hence unenforceable. Miller, 129 Idaho at 351, 924 P.2d at 613. Although not clearly argued below or addressed in either the magistrate's decision or the district court, in Idaho a court may not only raise the issue of whether a contract is illegal sua sponte, Nab v. Hills, 92 Idaho 877, 882, 452 P.2d 981, 986 (1969); Belt v. Belt, 106 Idaho 426, 430 n. 2, 679 P.2d 1144, 1148 n. 2 (Ct.App.1984), but it has a duty to raise the issue of illegality, whether pled or otherwise, at any stage in the litigation. Stearns, 72 Idaho at 290, 240 P.2d at 842.\\nId. at 566-67, 944 P.2d 701-02.\\nThe courts will not enforce the agreement if it is illegal or contrary to public policy. In this case the contract may have been entered into for some legal and some illegal purposes. The evidence of the potential illegal intentions of the parties in this case comes from the district judge, who deemed the FBI raid to have terminated the purposes of the partnership, and from Finley who argues that when the gaming came to an end, so did the profits and purposes of the partnership. This is an issue that should be addressed by the district court upon remand.\\nV.\\nCONCLUSION\\nThe judgment of the district court is vacated and the case is remanded for further proceedings. Costs are awarded to Hyta.\\nChief Justice TROUT, Justices WALTERS, KIDWELL and EISMANN concur.\"}"

idaho/11862968.json

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+"{\"id\": \"11862968\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Audie Keithley HELMS, III, Defendant-Appellant\", \"name_abbreviation\": \"State v. Helms\", \"decision_date\": \"1997-04-11\", \"docket_number\": \"Nos. 23111, 23133\", \"first_page\": \"32\", \"last_page\": \"36\", \"citations\": \"130 Idaho 32\", \"volume\": \"130\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:08:21.955233+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALTERS, C.J., and LANSING, J., concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Audie Keithley HELMS, III, Defendant-Appellant.\", \"head_matter\": \"936 P.2d 230\\nSTATE of Idaho, Plaintiff-Respondent, v. Audie Keithley HELMS, III, Defendant-Appellant.\\nNos. 23111, 23133.\\nCourt of Appeals of Idaho.\\nApril 11, 1997.\\nStewart A. Morris, Boise, for defendant-appellant.\\nAlan G. Lance, Attorney General, Myrna A.I. Stahman, Deputy Attorney General, Boise, for respondent.\", \"word_count\": \"1678\", \"char_count\": \"10600\", \"text\": \"PERRY, Judge.\\nAudie Keithley Helms, III, received consecutive sentences in two separate cases. In these consolidated appeals, Helms argues that the sentences should be served concurrently. We affirm.\\nI.\\nFACTS AND BACKGROUND\\nAlthough the issue in this case is a simple one, the unusual facts and procedural background merit discussion. In August 1995, Helms was charged with possession of a controlled substance, methamphetamine, with the intent to deliver. I.C. \\u00a7 37-2732(a). Helms was released from custody on his own recognizance.\\nWhile awaiting trial on the possession offense, Helms was charged with grand theft, I.C. \\u00a7 18-2403(4); burglary, I.C. \\u00a7 18-1401; and second degree kidnapping, I.C. \\u00a7 18-4501, \\u2014 4503. These charges arose out of an incident wherein three men battered and murdered Travis Jon Mclntier. Although he did not beat Mclntier, Helms was present during the incident. The state claimed that Helms assisted in transporting Mclntier to the site where he was killed, was found in the possession of certain items of Mclntier's property after Mclntier's death, and entered Mclntier's residence after the murder with the intent to commit theft.\\nPursuant to a plea agreement, Helms pled guilty to grand theft and burglary. In exchange for the pleas, the state dismissed the kidnapping charge and agreed to recommend concurrent unified terms of ten years, with minimum periods of confinement of four years. As a part of the same agreement, the state reduced the possession with intent to deliver charge to possession of a controlled substance. I.C. \\u00a7 37-2732(e). Helms pled guilty, and the state recommended a sentence of seven years, with a four-year determinate term.\\nA presentence investigation (PSI) report and a psychological evaluation were prepared. The district court reviewed the record, the PSI report, the psychological evaluation, as well as Helms' prior criminal record and troubled personal history. The district court imposed concurrent seven-year unified sentences, with minimum periods of confinement of two years, for grand theft and burglary. The district court ordered that Helms receive credit for 183 days already served.\\nThe possession charge then proceeded to sentencing before another district judge. In sentencing Helms for the possession charge, the district court considered the grand theft and burglary offenses. The district court also reviewed the PSI report, the psychological evaluation, and Helms' character. The district court initially imposed a seven-year sentence, with a minimum term of four years, which was to run consecutively with the sentences ordered for grand theft and burglary. The district court later amended the sentence and imposed a minimum term of two years, with a maximum term of seven years, to run consecutively with the other sentences.\\nHelms initially appealed from the sentences imposed for grand theft and burglary. That appeal was consolidated with Helms' subsequent appeal from the sentence for the possession conviction. On appeal, Helms acknowledges that the sentences for grand theft and burglary were reasonable. The only issue before this Court, therefore, is the reasonableness of the sentence imposed on the possession charge.\\nII.\\nANALYSIS\\nAn appellate review of a sentence is based on an abuse of discretion standard. State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 645 P.2d 323 (1982). A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary \\\"to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case.\\\" State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence we conduct an independent review of the record, having regard for the nature of the offense the character of the offender and the protection of public interest. State v. Reinke, 103 Idaho 771, 653 P.2d 1183 (Ct.App.1982).\\nHelms' arguments include various references to the probable period of incarceration to be served for the possession offense. Where a unified sentence has been imposed, we examine the minimum period of confinement established by the sentencing court as the probable measure of confinement. State v. Hyde, 127 Idaho 140, 150, 898 P.2d 71, 81 (Ct.App.1995); State v. Heer, 116 Idaho 969, 971, 783 P.2d 308, 310 (Ct.App.1989); State v. Sanchez, 115 Idaho 776, 777, 769 P.2d 1148, 1149 (Ct.App.1989). Here, our review will focus on the two-year determinate portion of the sentence for possession.\\nHelms argues that the district court should not have considered the Mclntier incident in sentencing him on the possession charge. We disagree. It is well established that sentencing courts are entitled to consider a wide range of information about the defendant. State v. Johnson, 101 Idaho 581, 584, 618 P.2d 759, 762 (1980). The district court may review evidence of other crimes, even those that have not been charged. State v. Roberts, 129 Idaho 194, 200, 92B P.2d 489, 445 (1996). A crime committed in the interval between the commission of the charged offense and sentencing for that offense is clearly relevant and is a proper consideration in sentencing.\\nHelms further argues that the district court, in the possession case, gave too much weight to the psychological evaluation and the PSI report, particularly in light of the fact that these documents were considered during the sentencing for grand theft and burglary. A PSI report is intended to provide information on the defendant's family history, educational background, social history, sense of values and outlook on life in general. Hyde, 127 Idaho at 150, 898 P.2d at 81. The decision to order a PSI report and a psychological evaluation are matters of discretion for the trial court. Id. In felony cases, the trial court may forgo a PSI report only where the record affirmatively establishes a valid reason and where there is sufficient information from another source. Id. Use of a PSI report prepared in connection with an earlier offense is not error absent a showing of some material change in circumstances. Id.; State v. Powers, 100 Idaho 614, 616, 603 P.2d 569, 571 (1979). The psychological evaluation and the PSI report did not become less relevant because they were considered in the prior sentencing. The PSI report and attendant psychological evaluation were properly considered in this case.\\nHelms claims that, during sentencing on the possession charge, the prosecution incorrectly indicated that Helms had a juvenile record in Idaho. The prosecuting attorney stated, \\\"I'm familiar with Mr. Helms because I was the prosecutor out at juvenile, and I saw some of his eases.\\\" Helms notes on appeal that he has no record of juvenile offenses in Idaho and argues that the prosecutor's statement was therefore inappropriate. The district court carefully reviewed the PSI report which indicated that Helms lacked a juvenile record. Hence, the district court had adequate information before it to evaluate the prosecutor's statement. The district court discussed Helms' background at length and did not indicate that the prosecutor's allusion to a juvenile record was a factor in sentencing.\\nHelms does not claim that the unified term of seven years, with a minimum period of incarceration of two years, is unreasonable. Helms actually requests the same sentence on remand, but argues that it should be imposed to run concurrently with his two unified seven-year terms, with minimum periods of confinement of two years, for grand theft and burglary. A consecutive sentence is authorized as a discretionary decision by I.C. \\u00a7 18-308. Pursuant to both statutory and case law, the decision of whether to impose sentences concurrently or consecutively is within the sound discretion of the trial court. State v. Elliott, 121 Idaho 48, 52, 822 P.2d 567, 571 (Ct.App.1991); State v. Lloyd, 104 Idaho 397, 401, 659 P.2d 151, 155 (Ct.App.1983). The standard established in Toohill are applicable to this issue as well.\\nThe record in this case indicates that Helms has extensive psychological problems, a tendency towards violence, and an unwillingness to accept treatment. The psychological profile indicates that Helms currently presents a risk to society. Although the possession charge in this case was a nonviolent offense, Helms admitted that he enjoys hurting other people, and the psychologist found that Helms has little capacity for empathy.\\nIn sentencing Helms for the possession charge, the district court considered this offense \\\"in the context of the broader course of Mr. Helms' life and conduct and the risk that he is to society.\\\" The district court considered the appropriate goals of sentencing and properly considered the psychological evaluation, the PSI report and the facts underlying Helms' other criminal charges.\\nThe sentence imposed by the district court for the possession charge is well within the legal maximum. After a thorough review of the record, we conclude that the district court did not abuse its discretion in imposing a minimum term of two years to run consecutively to Helms' other sentences.\\nIII.\\nCONCLUSION\\nThe sentences imposed by the district court are well within the statutory m\\u00e1xi-mums. Helms has failed to establish that the sentences are unreasonable. The district court properly exercised its discretion in deciding that the sentence for possession of a controlled substance should be served consecutively to the sentences for grand theft and burglary. The judgments of conviction, and the concurrent sentences of seven years, with minimum periods of confinement of two years, for grand theft and burglary, and the consecutive sentence of seven years, with a minimum period of conf\\u00ednem\\u00e9nt of two years, for possession of a controlled substance are affirmed.\\nWALTERS, C.J., and LANSING, J., concur.\"}"

idaho/11873173.json

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+"{\"id\": \"11873173\", \"name\": \"Lacey SIVAK, Petitioner-Appellant, v. STATE of Idaho, James Spalding, Joseph Klauser, Pam Sonnen, James Barker and John Weirum, Respondents\", \"name_abbreviation\": \"Sivak v. State\", \"decision_date\": \"1997-11-17\", \"docket_number\": \"No. 23724\", \"first_page\": \"885\", \"last_page\": \"890\", \"citations\": \"130 Idaho 885\", \"volume\": \"130\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:08:21.955233+00:00\", \"provenance\": \"CAP\", \"judges\": \"LANSING, C.J., and PERRY, J., concur.\", \"parties\": \"Lacey SIVAK, Petitioner\\u2014Appellant, v. STATE of Idaho, James Spalding, Joseph Klauser, Pam Sonnen, James Barker and John Weirum, Respondents.\", \"head_matter\": \"950 P.2d 257\\nLacey SIVAK, Petitioner\\u2014Appellant, v. STATE of Idaho, James Spalding, Joseph Klauser, Pam Sonnen, James Barker and John Weirum, Respondents.\\nNo. 23724.\\nCourt of Appeals of Idaho.\\nNov. 17, 1997.\\nLacey Sivak, Boise, pro se appellant.\\nAlan G. Lance, Attorney General; Timothy R. McNeese, Deputy Attorney General, Boise, for respondent.\", \"word_count\": \"2864\", \"char_count\": \"17635\", \"text\": \"SCHWARTZMAN, Judge.\\nLacey Sivak appeals from a decision of the district court which dismissed his appeal from an order by the magistrate granting summary judgment in favor of the state on his petition for a writ of habeas corpus. The magistrate also imposed sanctions upon Si-vak for his continual abuse of the court processes and dismissed three other stayed ha-beas corpus proceedings. Sivak was given thirty days to respond to this judgment and order. Thereafter, the magistrate issued a final order reaffirming its prior decision in all respects on October 21, 1996. For the reasons stated below, we affirm.\\nI\\nFACTS AND PROCEDURAL BACKGROUND\\nSivak has been in the custody of the Idaho Department of Corrections since 1981, and is currently incarcerated on death row for several crimes, including first degree murder. Sivak has a long history of litigation in state and federal courts, having filed numerous habeas corpus petitions in both venues. Twelve such cases are contained in the Idaho Reports after consideration by the court of appeals. In a federal case, Sivak v. Wilson, CV 93-081-S-EJL (Idaho D.C.1993), Sivak was denied the right to file any more cases with that court without first obtaining its leave, following twenty-six previous pro se filings.\\nSivak filed a petition for habeas corpus relief on May 14, 1996, asserting, inter alia, that personal items were taken from his cell, that a blanket of his was returned soiled with juice, that his disciplinary hearings were conducted improperly, that \\\"off the wall comments\\\" regarding women's clothing found in his cell were made in his presence and that there were other violations of Department of Corrections policies and procedures. Sivak requested a hearing, compensation for the allegedly stolen/missing personal items, and a further determination that his continued incarceration is unconstitutional.\\nOn May 21, 1996, the magistrate, entered a conditional order of dismissal unless, within twenty days, Sivak could demonstrate \\\"that the facts alleged, even if true, lead to any colorable constitutional claim.\\\" On May 24, 1996, the state filed a motion to dismiss, or alternatively, a motion for summary judgment.\\nThe magistrate entered its initial order granting summary judgment and imposing sanctions on August 21,1996. This summary judgment order found, generally: (1) that Sivak's vague allegations of retaliation were not sufficient to require a hearing; (2) that ordinary instances of prison discipline cited by Sivak do not create constitutional due process issues; (3) that Sivak's allegations regarding missing personal property were not proper habeas corpus issues; and (4) that all other issues raised by Sivak were not significant enough to require a response. In its order of dismissal, the magistrate also quoted from one of the Ninth Circuit's unpublished opinions, Sivak v. Murphy, 995 F.2d 233 (9th Cir.1993):\\nLacey Mark Sivak has appealed orders and decisions of the district court to the Ninth Circuit no less than ten times prior to this appeal. See Sivak v. Butler, No. 92-36570, 1993 WL 51833 (9th Cir. Mar. 1, 1993) (unpublished); Sivak v. Cluney, No. 91-35236, 1992 WL 259239 (9th Cir. Oct. 5, 1992) (unpublished); Sivak v. Gilmore, Nos. 91-35230, 91-35602, 1992 WL 246038 (9th Cir. Sep. 24, 1992) (unpublished); Sivak v. Dennard, No. 90-35824, 1991 WL 275338 (9th Cir. Dec. 24, 1991) (unpublished); Sivak v. Kienzle, No. 88-3895, 1989 WL 106658 (9th Cir. Sep. 5, 1989) (unpublished); Sivak v. Smith, No. 88-4051, 1989 WL 106671 (9th Cir. Sep. 5, 1989) (unpublished); Sivak v. Gilmore, No. 87-4426, 1989 WL 69387 (9th Cir. Jun. 22, 1989) (unpublished); Sivak v. Murphy, No. 87-3992, 1988 WL 141364 (9th Cir. Dec. 19, 1988) (unpublished); Sivak v. Castiglione, No. 85-4365, 1988 WL 40560 (9th Cir. Apr. 26, 1988) (unpublished); Sivak v. Castiglione, No. 85-4365 (9th Cir. Mar. 1, 1993) (unpublished). If Sivak suffers a serious deprivation of his constitutional rights in prison some day, he may not be able to convince the magistrate, the district court, or this court of this fact because of his incessant litigation over relatively trivial matters. Cf. Aesop's Fables, \\\"The Boy Who Cried Wolf.\\\"\\n1993 WL 188334, at *2, n. 1 (emphasis added). Sivak was given thirty days to respond to the magistrate's proposed order and sanctions.\\nOn October 21, 1996, the magistrate entered its \\\"Final Orders In Pending Cases,\\\" noting that, in the interim, Sivak had filed: (1) a motion for witnesses and evidence to be subpoenaed for a hearing, (2) a response and opposition to the court's summary judgment order and (3) a first supplement to response and opposition which \\\"consisted mostly of veiled threats of retaliation if the court awarded attorney fees and costs as sanctions in this case.\\\" There were also filings attempted by Sivak in three other cases which had been stayed pending the court's decision in the instant case. Finally, Sivak attempted to file yet another new habeas eorpus case. The magistrate approved its earlier decision and reiterated its order restricting any further filings by Sivak:\\nLacey Sivak will not be able to file, nor shall the clerk of the court have any authority to accept for filing petitions or lawsuits for habeas relief, however they are described, unless or until Sivak obtains prior leave of this court. In seeking leave of this court, Sivak must certify that the claims he wishes to present are brought in good faith, and have not been raised before. Upon false certification, petitioner may be found in contempt of court and punished accordingly.\\nSivak filed his notice of appeal and appeal brief to the district court on February 21, 1997. The district court entered its decision dismissing Sivak's appeal on March 11, 1997, noting that, regardless of which order of the magistrate was counted as the final order, Sivak's notice of appeal was untimely because it was filed more than forty-two days from either order. Furthermore, the district court noted that Sivak raised no issues on appeal which merited a review of the magistrate's orders nor necessitated a response from the state. Sivak timely appealed the district court's dismissal of his appeal.\\nII\\nANALYSIS\\nA. Standard Of Review.\\nOn appeal from a decision made in a habeas corpus ease by the district court in its appellate capacity, this Court examines the magistrate's decision independently of, but with due regard for, the district court's decision. State v. Bitt, 118 Idaho 584, 585 n. 1, 798 P.2d 43, 44 n. 1 (1990); Craig v. State, 128 Idaho 121, 123, 844 P.2d 1371, 1378 (Ct.App.1992).\\nB. The District Court Erred In Dismissing Sivak's Appeal For Untimeliness.\\nBecause the filing of a timely appeal is jurisdictional, we must first address the district court's holding that Sivak did not file his appeal to the district court in a timely fashion. The district court found that Sivak's notice of appeal from the final order of October 21, 1996, was not filed until February 21, 1997, well past the forty-two day jurisdictional time period. Accordingly, the district court held the appeal was untimely as a matter of law and must be dismissed.\\nClearly, Sivak's notice of appeal comes well past the forty-two day deadline for appeals provided in Idaho Appellate Rule 14(a). However, Sivak has alleged that he did not receive a copy of the magistrate's final order from which he could file a timely appeal. The record reveals that there was no clerk's certificate of mailing verifying that the October 21, 1996, final order was properly and timely mailed to Sivak. In the absence of evidence to the contrary, we must accept as true Sivak's allegation that he did not receive the October 21 order in time to file an appeal. In light of this finding, Sivak's appeal was not untimely and the district court erred in dismissing it on this ground.\\nWe will now address the \\\"merits\\\" of Si-vak's appeal.\\nC. The Magistrate Court Did Not Err In Dismissing Sivak's Petitions Without Requiring The State To File A Return.\\nIt is well settled that a court may dispose of a petition for a writ of habeas corpus \\\"as the justice of the case may require.\\\" Brennan v. State, 122 Idaho 911, 917, 841 P.2d 441, 447 (Ct.App.1992), quoting Mahaffey v. State, 87 Idaho 228, 231, 392 P.2d 279, 280 (1964). It is not an abuse of discretion for a magistrate court to dismiss a petition for habeas corpus without requiring the state to file a return. Brennan at 917, 841 P.2d at 447. The magistrate considered all pleadings filed by Sivak in this case and did not abuse his discretion by dismissing the petitions without requiring a formal return by the state.\\nD. Sivak Does Not Raise Any Issues That Justify Habeas Corpus Relief (Or,\\\"Much Ado About Almost Nothing\\\").\\nThe Magistrate granted summary judgment to the state on Sivak's petition for a writ of habeas corpus. On appeal we adhere to the standard of review applicable to summary judgments generally. See Lopez v. State, 128 Idaho 826, 919 P.2d 355 (Ct.App.1996).\\nSivak appears to have roughly four distinct habeas claims, all of which are trivial and/or fail to form the basis for legitimate habeas corpus relief:\\n(1) Offensive comments by a correctional officer regarding, inter alia, women's clothing found in Sivak's cell;\\n(2) An unjustified laundry bill Sivak received after a disciplinary hearing;\\n(3) Vague threats of retaliation whenever Sivak attempts to report allegedly improper conduct of the prison staff, verbal altercations, confrontations, etc.\\n(4) Personal property loss totaling $49.01, and consisting of clothing, washcloths and a laundry bag.\\nIndeed, Sivak's claims are a paradigm of the doctrine de minimus non curat lex, that the law does not care for or take notice of very small or trifling matters. See, e.g., Sivak v. State, 111 Idaho 118, 121, 721 P.2d 218, 221 (Ct.App.1986) (holding that the Department of Corrections' retention, pursuant to new departmental rules, of Sivak's gym trunks, deck of playing cards, photograph albums, rubber ball, pair of sweat pants and, perhaps, other items did not rise to constitutional dimensions and thus did not violate inmate's due process rights.)\\nSivak's first and third claims allege that a correctional officer made offensive comments regarding items found in Sivak's cell, and that Sivak received some vague threats of retaliation from the prison warden anytime he attempted to report allegedly improper actions of prison staff. Sivak does not allege that he suffered any specific, tangible harm, nor does he claim that the alleged threats or comments have ever ripened into actual retaliation or had a chilling effect upon his access to the courts. Furthermore, it is well settled that the allegations of verbal harassment and embarrassment are not constitutional violations. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir.1987) (\\\"[vjerbal harassment or abuse [of a prisoner]...is not sufficient to state a constitutional deprivation under 42 U.S.C. \\u00a7 1983.\\\"); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.1987) (holding that prisoner's allegations of threats allegedly made by guards failed to state a cause of action); Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1353 (9th Cir.1981), aff'd sum nom., Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983) (holding that prisoner's allegations of harassment, embarrassment, and defamation fail to state a claim cognizable under 42 U.S.C. \\u00a7 1983). Sivak's claim that these so-called threats and allegedly offensive comments justify an evidentiary hearing and appropriate relief is without merit.\\nNext, regarding Sivak's second and fourth claims that go to the issue of property loss, this Court has previously established in Sivak v. State, 111 Idaho 118, 721 P.2d 218 (1986), that although the appellate and lower courts possess jurisdiction to determine the property rights of inmates, \\\"a writ of habeas corpus is not the remedy for the return of property.\\\" Sivak at 120, 721 P.2d at 220.\\nIn addition to the aforementioned case precedent compelling dismissal of Sivak's claims, we also note that the United States Supreme Court's opinion in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), sets forth the standard in determining whether an inmate has a protected liberty interest under the Fourteenth Amendment of the United States Constitution, such that the inmate is then entitled to Fourteenth Amendment due process protections:\\n[W]e recognize that States may under certain circumstances create certain liberty interests which are protected by the Due Process Clause. But these intez'ests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.\\n515 U.S. at 483-84, 115 S.Ct. at 2300, (emphasis added.)\\nThe Idaho Supreme Court has recently addressed the question of what is the proper test to be applied in determining whether a prisoner has a liberty interest protected by the due process clause in Article I, Section 13 of the Idaho Constitution. In Schevers v. State, 129 Idaho 573, 930 P.2d 603 (1996), the Court stated: \\\"[W]e hold that the 'atypical and significant hardship' standard used for Fourteenth Amendment Due Process Clause also applies to the Due Process Clause contained in Article I, Section 13 of the Idaho Constitution.\\\" Schevers at 578, 930 P.2d at 608. Accordingly, it ruled that Shevers did not have a protected liberty interest in remaining free from disciplinary segregation.\\nBy a parity of reasoning, we find that none of Sivak's claims rise to the level of imposing on him an \\\"atypical and significant hardship\\\" sufficient to trigger a protected liberty interest under the Fourteenth Amendment of the United States Constitution or the Idaho Constitution's Due Process Clause. Sivak is not entitled to have his own personal ombudsman in the form of a sitting magistrate to review, second-guess and correct every alleged inconvenience, petty slight or subjectively perceived injury relative to the ordinary incidents of prison live. Our court system has far more important and pressing issues to resolve with its finite resources.\\nE. The State Is Not Entitled to Attorney Fees On Appeal.\\nThe State requests that this Court award reasonable attorney fees on appeal pursuant to I.C. \\u00a7 12-122, which permits attorney fees to be awarded to the respondent in a habeas corpus action if the court finds that the action was brought frivolously by the petitioner. The magistrate declined to award such fees and so does this Court.\\nThe order of the magistrate granting summary judgment is hereby affirmed.\\nLANSING, C.J., and PERRY, J., concur.\\n. See Sivak v. State, 119 Idaho 211, 804 P.2d 940 (Ct.App.1991); Sivak v. Ada County, 118 Idaho 193, 795 P.2d 898 (Ct.App.1990); Sivak v. Ada County, 115 Idaho 766, 769 P.2d 1138 (Ct.App.1989); Sivak v. State, 115 Idaho 765, 769 P.2d 1137 (Ct.App.1989); Sivak v. Ada County, 115 Idaho 762, 769 P.2d 1134 (Ct.App.1989); Sivak v. State, 115 Idaho 760, 769 P.2d 1132 (Ct.App.1989); Sivak v. State, 115 Idaho 757, 769 P.2d 1129 (Ct.App.1989); Sivak v. Ada County, 115 Idaho 759, 769 P.2d 1131 (Ct.App.1989); Sivak v. Ada County, 115 Idaho 760, 769 P.2d 1132 (Ct.App.1989); Sivak v. State, 114 Idaho 271, 755 P.2d 1309 (Ct.App.1988); Sivak v. State, 112 Idaho 127, 730 P.2d 1047 (Ct.App.1986); Sivak v. State, 111 Idaho 118, 721 P.2d 218 (Ct.App.1986).\\n. We note that, not surprisingly, since Sivak v. Murphy, Sivak has appealed three more cases to the Ninth Circuit Court of Appeals. See Sivak v. Mutch, No. 93-36014, 1995 WL 566933 (9th Cir. Sep. 25, 1995) (unpublished) (Holding that Si-vak's general allegations that \\\"there wasn't much care given\\\" and that \\\"care given was inadequate\\\" do not present a genuine issue regarding the medical care administered); Sivak v. Wilson, No. 95-35118, 1995 WL 696460 (9th Cir. Nov. 24, 1995) (unpublished) (holding that Sivak failed to state a claim when he alleged that he was denied access to a photocopier, and that Sivak's claim concerning access to a typewriter was barred by res judicata); Sivak v. Wilson, No. 93-36105, 1995 WL 697197 (9th Cir. Nov. 24, 1995) (unpublished) (holding that Sivak's allegations about lost legal property were properly dismissed as precluded by res judicata, and that Sivak's claims regarding access to the courts were properly dismissed as frivolous). This gives Sivak the ignominious distinction of having presented a grand total of 14 habeas corpus appeals before the Ninth Circuit.\\nWe pause here to acknowledge Ada County Magistrate Charles Hay for his thorough and well-documented decision on this issue, adopting the federal court's procedures used in Sivak v. Wilson cited on page 258 of this opinion, and the criteria set forth in De Long v. Hennessey, 912 F.2d 1144 (9th Cir.1990). However, since the propriety of these sanctions has not been raised or briefed on appeal, we need not address that issue herein.\\n. Because Sivak's disjunctive and disordered briefs are written in a stream-of-consciousness style, it is impossible to delineate with exact specificity what his claims are.\"}"

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+"{\"id\": \"11922657\", \"name\": \"BOUNDARY BACKPACKERS, an unincorporated association; North Idaho Audubon Society, Inc., an Idaho corporation; Bonners Ferry Forest Watch, an unincorporated association; Jerry Pavia; Paul R. Sieracki; Will Venard; Jan Wathen; Allen H. Rose and Jan Rose, husband and wife; Laurel McGuire; Lew Langness and Linda Langness, husband and wife; John O'Connor; Shaela Conner; Cherie Bronstein; Robert Moir; David W. Bodner and Meeche Bodner, husband and wife; Dan J. Misciagna; Daniel Krmpotich and Michael S. Powers, Plaintiffs-Respondents, v. BOUNDARY COUNTY, a governmental subdivision; Ronald Smith, Merle Dinning and Orrin Everhart, in their official capacities as members of the Boundary County Board of Commissioners, Defendants-Appellants\", \"name_abbreviation\": \"Boundary Backpackers v. Boundary County\", \"decision_date\": \"1996-03-18\", \"docket_number\": \"No. 21287\", \"first_page\": \"371\", \"last_page\": \"387\", \"citations\": \"128 Idaho 371\", \"volume\": \"128\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T23:11:09.800147+00:00\", \"provenance\": \"CAP\", \"judges\": \"McDEVITT, C.J., and TROUT, J., concur.\", \"parties\": \"BOUNDARY BACKPACKERS, an unincorporated association; North Idaho Audubon Society, Inc., an Idaho corporation; Bonners Ferry Forest Watch, an unincorporated association; Jerry Pavia; Paul R. Sieracki; Will Venard; Jan Wathen; Allen H. Rose and Jan Rose, husband and wife; Laurel McGuire; Lew Langness and Linda Langness, husband and wife; John O\\u2019Connor; Shaela Conner; Cherie Bronstein; Robert Moir; David W. Bodner and Meeche Bodner, husband and wife; Dan J. Misciagna; Daniel Krmpotich and Michael S. Powers, Plaintiffs-Respondents, v. BOUNDARY COUNTY, a governmental subdivision; Ronald Smith, Merle Dinning and Orrin Everhart, in their official capacities as members of the Boundary County Board of Commissioners, Defendants-Appellants.\", \"head_matter\": \"913 P.2d 1141\\nBOUNDARY BACKPACKERS, an unincorporated association; North Idaho Audubon Society, Inc., an Idaho corporation; Bonners Ferry Forest Watch, an unincorporated association; Jerry Pavia; Paul R. Sieracki; Will Venard; Jan Wathen; Allen H. Rose and Jan Rose, husband and wife; Laurel McGuire; Lew Langness and Linda Langness, husband and wife; John O\\u2019Connor; Shaela Conner; Cherie Bronstein; Robert Moir; David W. Bodner and Meeche Bodner, husband and wife; Dan J. Misciagna; Daniel Krmpotich and Michael S. Powers, Plaintiffs-Respondents, v. BOUNDARY COUNTY, a governmental subdivision; Ronald Smith, Merle Dinning and Orrin Everhart, in their official capacities as members of the Boundary County Board of Commissioners, Defendants-Appellants.\\nNo. 21287.\\nSupreme Court of Idaho, Coeur d\\u2019Alene,\\nApril 1995 Term.\\nMarch 18, 1996.\\nRehearing Denied April 18, 1996.\\nRandall W. Day, Bonners Ferry, for appellants.\\nScott Reed, Coeur d\\u2019Alene, for respondents.\\nPeter D. Coppelman, Washington, DC, for Amicus Curiae United States.\", \"word_count\": \"9015\", \"char_count\": \"55821\", \"text\": \"JOHNSON, Justice.\\nThis case concerns a county ordinance that requires all federal and state agencies to comply with a county land use policy plan. We conclude that the ordinance violates the U.S. Constitution because federal law preempts portions of the ordinance and that the entire ordinance is invalid because these portions are not severable. We also conclude that the one individual who has standing to challenge the ordinance is not entitled to attorney fees under the private attorney general doctrine.\\nI.\\nTHE BACKGROUND AND PRIOR PROCEEDINGS\\nIn 1992, the Boundary County Board of Commissioners (the board) enacted an ordinance (the ordinance), entitled Boundary County Interim Land Use Policy Plan (the plan). The ordinance declares that the scope and purpose of the plan is \\\"to guide the use of public lands and public resources in Boundary County and to protect the rights of private landowners.\\\" The ordinance directs that \\\"all federal and state agencies shall comply with\\\" the plan. The plan contains the following edicts to state and federal agencies:\\nFederal and state agencies proposing actions that will impact [the plan] shall prepare and submit in writing, and in a timely manner, report(s) on the purposes, objectives and estimated impacts of such actions, including economic, to [the board]. These report(s) shall be provided to [the board] for review and coordination prior to federal or state initiation of action.\\nFederal land agencies shall not acquire any private lands or rights in private lands within Boundary County without first assuring:\\na. That as a minimum, parity in land ownership status is maintained; and\\nb. That private property interests are protected and enhanced.\\n. Federally managed lands that are difficult to manage or which lie in isolated tracts shall be targeted for disposal.\\n. Boundary County concurrence shall be required prior to any [federal and state land] adjustments.\\nBoundary County shall determine land withdrawals for hazardous and nonhazardous waste storage as well as the types and points of origin of such waste.\\n. Before federal and state land agencies can change land use, adverse impact studies on uses shall be conducted and mitigation measures adopted with concurrence from Boundary County.\\n. Any federally proposed designation of Wild and Scenic Rivers and all federal policies regarding riparian management in Boundary County shall be coordinated with [the board] and shall comply with any County water use plan.\\n. Boundary County may develop Wild and Scenic River Designations of its own design and shall require full federal compliance in the acceptance and enforcement of such designations.\\n. No wilderness areas shall be designated in Boundary County.\\nThe ordinance directs enforcement of the plan: \\\"Boundary County shall enforce compliance with [the plan] and shall monitor consistency between federal and state actions and activities and the land use requirements enumerated herein.\\\"\\nThe board sent copies of the plan to all federal, state, and local governmental agencies, together with a form letter requesting that each agency give the board ninety days notice prior to taking any proposed actions that would affect the economic stability, custom, or culture of Boundary County (the county).\\nBoundary Backpackers, the North Idaho Audubon Society, and Bonners Ferry Forest Watch (the organizations) are non-profit membership groups located in the county. In 1993, the organizations and eighteen individuals (the individuals) who are residents of the county sued the county and the members of the board, seeking (1) a declaratory judgment that the ordinance is unconstitutional and void, (2) an injunction enjoining the board members from enforcing the ordinance and directing that they repeal the ordinance, (3) damages, and (4) attorney fees and costs. The organizations and the individuals alleged that the ordinance threatens their individual and collective environmental, aesthetic, and recreational interests in the state and federal lands, waters, and natural resources in the county.\\nThe organizations and the individuals moved for summary judgment. The county and the board moved to dismiss the suit. The board members submitted an affidavit in which they stated that the board \\\"deemed that it would not be proper to seek enforcement of the ordinance by fines or penalties.\\\" The organizations and several of the individuals submitted affidavits stating the effect the ordinance has on them.\\nThe trial court granted summary judgment to the organizations and the individuals, ruling that one or more of them had standing and that the issues presented were ripe for review. The trial court concluded that the ordinance requires the federal government to maintain ownership parity in the disposition and acquisition of federal properties and, consequently, conflicts with article I, section 8, clause 17 of the U.S. Constitution (the Property Clause), as well as the Federal Land Policy Management Act of 1976, 43 U.S.C. \\u00a7 1715(a) (1986). The trial court ruled that under article VI, clause 2 of the U.S. Constitution (the Supremacy Clause), the ordinance is preempted by federal law. The trial court also concluded that the board exceeded its authority in enacting the ordinance based upon article IX, sections 7 and 8 of the Idaho Constitution and related statutes which vest the state board of land commissioners with management authority over state lands. The trial court declared the entire ordinance void on the basis that the invalid provisions were pervasive and awarded the organizations and the individuals attorney fees under the private attorney general doctrine.\\nThe county and the board members appealed.\\nII.\\nONE OF THE INDIVIDUALS HAS STANDING.\\nThe county and the board members assert that the trial court incorrectly determined that one or more of the organizations and individuals had standing. We disagree.\\nIn Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989), the Court stated three basic propositions concerning standing that guide our decision here:\\n1. \\\"The doctrine of standing focuses on the party seeking relief and not on the issues the party wishes to have adjudicated.\\\"\\n2. \\\"[T]o satisfy the case or controversy requirement of standing, litigants generally must allege or demonstrate an injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury.\\\"\\n3. \\\"[A] citizen and taxpayer may not challenge a governmental enactment where the injury is one suffered alike by all citizens and taxpayers of the jurisdiction.\\\"\\nId. at 641, 778 P.2d at 763.\\nIn the present case, the county and the board members objected to various portions of the affidavits submitted by the organizations and the individuals concerning their standing to bring this action. The trial court sustained most of these objections, overruling only a few. We review those portions of the affidavits to which the county and the board members objected to determine whether they are admissible as required by I.R.C.P. 56(e). Hecla Mining Co. v. Star-Morning Mining Co., 122 Idaho 778, 782-87, 839 P.2d 1192, 1196-1201 (1992). We agree with the trial court in sustaining most of the county's and the board members' objections. Therefore, we do not consider these portions of the affidavits in determining whether the organizations and the individuals have standing.\\nConsidering the remaining portions of the affidavits submitted on behalf of the organizations and all but one of the individuals, they do not demonstrate an injury in fact or a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury. Likewise, with regard to the organizations and all but one of the individuals, we do not find an injury that is not suffered alike by all citizens of the county.\\nThe affidavit of Dan Krmpotich, a commercial guide in the county, contains the following statement that establishes his standing to challenge the ordinance: \\\"If Boundary County succeeds in enforcing the ordinance ., I shall lose a very substantial portion of my existing available open space usable for high quality recreation related to wildlife and wild lands.\\\" The county and the board members objected on the grounds that this statement lacked foundation, was an inadmissible opinion, and constituted speculation. There are other portions of the affidavit to which the county and the board members did not object, except to say that they were self-serving. So far as we can understand this objection, it does not render these statements inadmissible. These statements provide an ample foundation to support Krmpotich's concluding statement of the injury he will suffer from the enforcement of the ordinance. They reveal Krmpotich's reliance since 1982 on the federal and state public lands in the county as a site for professionally guiding for compensation over 200 clients. His opinion that if the counfy enforces the ordinance he will lose a very substantial portion of the existing available open space for this purpose qualifies as an expert opinion admissible pursuant to I.R.E. 702 and, therefore, does not constitute speculation. Krmpotich has demonstrated an injury in fact that is not one suffered alike by all citizens and taxpayers of the county and a substantial likelihood that a declaration of the uneonstitutionality of the ordinance will prevent or redress the claimed injury. Therefore, he has standing.\\nIII.\\nTHIS CASE IS RIPE FOR JUDICIAL REVIEW.\\nThe county and the board members assert that this case is not ripe for judicial review. We disagree.\\nIn Miles, the Court pointed out that \\\"a declaratory judgment action must raise issues that are definite and concrete, and must involve a real and substantial controversy as opposed to an advisory opinion based upon hypothetical facts. Ripeness asks whether there is any need for court action at the present time.\\\" 116 Idaho at 642, 778 P.2d at 764. All of these conditions are met in this case. The ordinance is in place. It contains several edicts concerning the compliance of federal and state agencies with the plan and announces that \\\"[n]o wilderness areas shall be designated in Boundary County.\\\" The ordinance proclaims: \\\"Boundary County shall enforce compliance with [the plan]....\\\" The affidavit of the board members who enacted the ordinance stating that they \\\"deemed that it would not be proper to seek enforcement of the ordinance by fines or penalties\\\" does not override the terms of the ordinance requiring enforcement. We will not speculate whether the board members will choose another form of enforcement or whether a new board will choose to enforce the ordinance by fines or penalties. The ordinance requires the plan to be enforced.\\nIn Harris v. Cassia County, 106 Idaho 513, 681 P.2d 988 (1984), the Court noted that\\nthe right sought to be protected by a de-elaratoiy judgment \\\"may invoke either remedial or preventative relief; it may relate to a right that has either been breached or is only yet in dispute or a status undisturbed but threatened or endangered; but, in either or any event, it must involve actual and existing facts.\\\"\\nId. at 516-17, 681 P.2d at 991-92 (quoting State ex rel. Miller v. State Bd. of Educ., 56 Idaho 210, 217, 52 P.2d 141, 144 (1935)). In the present case, the ordinance threatens to disturb the status and management of federal and state public lands in Boundary County. The issues are definite and concrete and there is a real and substantial controversy.\\nIV.\\nCONGRESS HAS PREEMPTED PORTIONS OF THE ORDINANCE PLACING REQUIREMENTS ON FEDERAL AGENCIES.\\nThe county and the board members assert that the none of the provisions of the ordinance is preempted by federal law. We disagree.\\nThe power over federal land granted to Congress in the Property Clause is plenary and without limitations. California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 580, 107 S.Ct. 1419, 1424-25, 94 L.Ed.2d 577 (1987). The Supremacy Clause invalidates state laws or local ordinances that \\\" 'interfere with, or are contrary to,' federal law.\\\" Hillsborough County, Fla v. Automated Medical Labs. Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 2374-75, 85 L.Ed.2d 714 (1985) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L.Ed. 23 (1824) (Marshall, C.J.)).\\nThe question we must address in this case is whether Congress has enacted legislation that preempts any portions of the ordinance. Granite Rock, 480 U.S. at 581, 107 S.Ct. at 1425. In Granite Rock, the Supreme Court delineated the elements of preemption:\\n\\\"[S]tate law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.\\\"\\nId. (citations omitted) (quoting Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 616, 621, 78 L.Ed.2d 443 (1984)).\\nCongress has enacted numerous laws (federal land laws) that provide for the management and preservation of federal land and the resources on federal land. See, e.g., the Multiple-Use Sustained-Yield Act of 1960,16 U.S.C. \\u00a7 528-531 (1985); the Wilderness Act, 16 U.S.C. \\u00a7 1131-1136 (1985 & Supp. 1995); the Wild and Scenic Rivers Act, 16 U.S.C. \\u00a7 1271-1287 (1985 & Supp.1995); the Forest and Rangeland Renewable Resources Planning Act of 1974, 16 U.S.C. \\u00a7 1600-1687 (1985 and Supp.1995); and the Federal Land Policy and Management Act of 1976, 43 U.S.C. \\u00a7 1701-1783 (1986 & Supp. 1995). Several portions of the ordinance that place requirements on federal agencies conflict with federal land laws.\\nThe ordinance requires that \\\"[flederal land agencies shall not acquire any private lands or rights in private lands within Boundary County without first ensuring . parity in land ownership status is maintained; and . private properly interests are protected and enhanced.\\\" This imposes restrictions on federal agencies that are inconsistent with federal laws authorizing acquisition of land. See, e.g., 16 U.S.C. \\u00a7 1277 (authorizing the Secretary of the Interior and the Secretary of Agriculture to acquire land within the boundaries of any component of the wild and scenic rivers system); 43 U.S.C. \\u00a7 1715(a) (authorizing the Secretary of the Interior to \\\"acquire pursuant to [the Federal Land Policy and Management Act of 1976], by purchase, exchange, donation or eminent domain, lands or interests therein\\\"); 7 U.S.C. \\u00a7 428a (1980) (authorizing the Department of Agriculture to \\\"acquire land, or interest therein, by purchase, exchange or otherwise, as may be necessary to carry out its authorized work\\\"). The provisions of the ordinance limiting the acquisition of land by federal agencies stand as obstacles to the full accomplishment of the purpose Congress evidenced in these laws.\\nThe ordinance requires that \\\"Boundary County shall determine land withdrawals for hazardous and non-hazardous waste storage as well as the types and points of origin of such waste.\\\" This conflicts with the authority of federal agencies and Congress itself concerning the withdrawal of federal land. See, e.g., 43 U.S.C. \\u00a7 1714(a), (d) (authorizing the Secretary of the Interior to make, modify, extend or revoke withdrawals of less than five thousand acres); 43 U.S.C. \\u00a7 1714(e) (requiring congressional review process for withdrawals of greater than five thousand acres).\\nThe ordinance requires that \\\"Boundary County concurrence shall be required prior to any [federal] land adjustments,\\\" \\\"whether it be by proposed disposal, exchange or proposed change in use,\\\" and that \\\"[b]efore federal . land agencies can change land use, adverse impact studies on uses shall be conducted and mitigation measure adopted with concurrence from Boundary County.\\\" The ordinance states that \\\"[t]his shall specifically include, but is not limited to any proposed changes in wildlife habitat, wildlife recovery plans, timber sales volume projections, restricted access, road closures, and primitive or wilderness designation.\\\" None of the federal land laws give local governmental units this type of veto power over decisions by federal agencies charged with managing federal land. In addition, this veto power is contrary to the provisions of the Endangered Species Act of 1973, 16 U.S.C. \\u00a7 1531-1543 (1985 & Supp. 1995), which authorizes the Secretary of the Interior, the Secretary of Commerce, and the Secretary of Agriculture to acquire land to carry out the purposes of the Act. 16 U.S.C. \\u00a7 1584. It is also contrary to the portion of the Endangered Species Act which requires the Secretary of the Interior and the Secretary of Commerce to develop and implement recovery plans for endangered species. 16 U.S.C. \\u00a7 1533(f). This veto power stands as an obstacle to the accomplishment of the full purposes and objectives Congress evidenced in these federal laws. The ordinance requires that \\\"[a]ny federally proposed designation of Wild and Scenic Rivers . shall comply with any County water use plan.\\\" The ordinance also requires \\\"full federal compliance in the acceptance and enforcement of' wild and scenic rivers designations by the county. These provisions are con trary to the process for the designation of wild and scenic rivers in the Wild and Scenic Rivers Act. 16 U.S.C. \\u00a7 1275-1276. The requirement stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.\\nThe ordinance commands that \\\"[n]o wilderness areas shall be designated in Boundary County.\\\" This conflicts with the process for the establishment of wilderness areas contained in the Wilderness Act. 16 U.S.C. \\u00a7 1132.\\nThe foregoing portions of the ordinance are preempted by federal law and are therefore unconstitutional.\\nV.\\nTHE PORTIONS OF THE ORDINANCE THAT ARE PREEMPTED BY FEDERAL LAW ARE NOT SEVERABLE.\\nThe county and the board members assert that any portions of the ordinance that are unconstitutional because they are preempted by federal law are severable. We disagree.\\nIf an unconstitutional portion of a statute or ordinance is integral or indispensable, it is not severable, and the entire measure must fall, although the Court will, when possible, recognize and give effect to a sever-ability clause. Idaho Dep't of Water Resources v. United States, 128 Idaho 246, 912 P.2d 614 (1995).\\nThe ordinance does contain a severability clause:\\nIf any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional by a federal or state court, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof.\\nDespite th\\u00e9 obvious intent of the board to preserve the remainder of the ordinance if portions are declared unconstitutional, the portions of the ordinance that are preempted by federal law are so integral and indispensable to the ordinance, we conclude the entire ordinance must fall. Some of the edicts contained in the ordinance apply to both federal and state agencies, but many are directed only at federal agencies. It is clear to us that the board did not intend to attempt to regulate only state land, but instead intended to regulate the use of all public land in the county. To sever the portions that attempt to restrict federal agencies and leave those that attempt to restrict state agencies emasculates the obvious purpose of the ordinance. Therefore, we conclude that the entire ordinance is invalid. Because of this ruling, it is unnecessary for us to address the claim that the ordinance violates the provisions of the Idaho Constitution concerning the management of state lands by the state board of land commissioners. Idaho Const, art. IX, \\u00a7 7, 8.\\nVI.\\nTHERE IS NO SUBSTANTIAL AND COMPETENT EVIDENCE TO SUPPORT A FINDING OF NECESSITY FOR THIS ACTION, ONE OF THE PREREQUISITES FOR THE AWARD OF ATTORNEY FEES PURSUANT TO THE PRIVATE ATTORNEY GENERAL DOCTRINE.\\nThe county and the board members assert that the trial court should not have awarded attorney fees pursuant to the private attorney general doctrine. We agree.\\nWe will overturn an award of attorney fees under the private attorney general doctrine only if the trial court has abused its discretion. Miller v. Echo Hawk, 126 Idaho 47, 49, 878 P.2d 746, 748 (1994). Whether the three-part test for determining to award attorney fees pursuant to the private attorney general doctrine is met requires a factual determination by the trial court. Id. We review factual findings that are the basis for an exercise of discretion in awarding fees to determine if the findings are clearly erroneous, that is, whether there is substantial and competent evidence to sustain them. Id.\\nOne part of the test to determine whether to award attorney fees under the private attorney general doctrine is the necessity for private enforcement. Id. The trial court resolved this part of the test by an oral ruling that \\\"[n]umerous agencies who are very much aware of this ordinance and for their own purposes . chose not to seek . public enforcement of it perhaps because they would wait for a more direct threat than was presented on the facts.\\\" To the extent this constitutes a finding of fact that there was the necessity for private enforcement, we review the record to see if there is any substantial and competent evidence to support this finding.\\nThe complaint alleges that neither the prosecuting attorney nor the attorney general would bring this action on behalf of the public. Also, there is some indication in the record that federal and state agencies were aware of the ordinance. The only other information in the record before us concerning the necessity for private enforcement is contained in comments of counsel for the parties during the hearing on the county's objections to the organizations' and the individuals' cost bill, which included attorney fees. Counsel for the organizations and individuals made the following comments:\\n\\\"The necessity for private enforcement.\\\" I don't think there's any question about that. As I point out, the Federal Government wasn't about to sue anybody. The state had sent back a letter with its \\u2014 with its Benewah County opinion saying Boundary County, you can't regulate our \\u2014 you can't regulate our state laws or state lands. This was ignored but the State wasn't about to do something until its finger got caught in the vice until somebody tried to do something which they had not done at the time we filed the lawsuit.\\nIn response, counsel for the county made the following comments:\\nWhat necessitated, what truly necessitated private enforcement. As [counsel for the organizations and the individuals] indicated, and if we take the position of [counsel for the organizations and the individuals] and just take it as the gospel, all the agencies that this policy applied to said we aren't going to worry about it, we'll take care of it when and if the question arises. After making these comments, counsel for the county went on to argue that there was no necessity for the organizations and the individuals to bring the action. These comments of counsel are not evidence, nor do they constitute a stipulation that neither the federal nor state agencies had taken any action to challenge the ordinance. There is no evidence to support the trial court's finding that these agencies chose not to seek to have the ordinance declared invalid. Therefore, there is no basis for the award of attorney fees pursuant to the private attorney general doctrine.\\nVIL\\nCONCLUSION\\nWe affirm the trial court's grant of summary judgment declaring the ordinance in violation of the U.S. Constitution and therefore null, void, and unenforceable in its entirety. We find it unnecessary to address the state constitutional implications of the ordinance. We reverse the trial court's award of attorney fees.\\nWe award Daniel Krmpotieh costs, but not attorney fees, on appeal.\\nMcDEVITT, C.J., and TROUT, J., concur.\"}"

idaho/11922987.json

@@ -0,0 +1 @@
+"{\"id\": \"11922987\", \"name\": \"John HOWARD, Petitioner-Appellant on Appeal, v. CANYON COUNTY BOARD OF COMMISSIONERS, Respondent-Respondent on Appeal\", \"name_abbreviation\": \"Howard v. Canyon County Board of Commissioners\", \"decision_date\": \"1996-04-19\", \"docket_number\": \"No. 21879\", \"first_page\": \"479\", \"last_page\": \"482\", \"citations\": \"128 Idaho 479\", \"volume\": \"128\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T23:11:09.800147+00:00\", \"provenance\": \"CAP\", \"judges\": \"McDEVITT, C.J., and JOHNSON, TROUT and SCHROEDER, JJ., concur.\", \"parties\": \"John HOWARD, Petitioner-Appellant on Appeal, v. CANYON COUNTY BOARD OF COMMISSIONERS, Respondent-Respondent on Appeal.\", \"head_matter\": \"915 P.2d 709\\nJohn HOWARD, Petitioner-Appellant on Appeal, v. CANYON COUNTY BOARD OF COMMISSIONERS, Respondent-Respondent on Appeal.\\nNo. 21879.\\nSupreme Court of Idaho, Boise,\\nFebruary 1996 Term.\\nApril 19, 1996.\\nEberle, Berlin, Fading, Tumbow & McKlveen, Chtd., Boise, for appellant. Warren E. Jones argued.\\nDavid L. Young, Canyon County Prosecutor; Charles L. Saari, Deputy Prosecutor, Caldwell, for respondent. Charles L. Saari argued.\", \"word_count\": \"1835\", \"char_count\": \"11910\", \"text\": \"SILAK, Justice.\\nJohn Howard (Howard) petitioned the Canyon County Planning and Zoning Commission (the Planning and Zoning Commission) for a conditional use permit to place a residential subdivision on 28 acres of land zoned agricultural. The Planning and Zoning Commission and, on appeal, the Canyon County Board of Commissioners (the Commissioners) denied the petition because Howard's proposed use would adversely impact the area's agricultural character. Howard appealed arguing that he had satisfied all conditions and requirements for a conditional use permit and therefore the Commissioners lacked the authority to deny his permit. We affirm.\\nI.\\nFACTS AND PROCEDURAL BACKGROUND\\nHoward owns approximately 78 acres of land in an area of Canyon County zoned agricultural. Howard petitioned the Planning and Zoning Commission for a conditional use permit to use 28 acres for a residential subdivision. The Planning and Zoning Commission viewed the site of the proposed subdivision and denied Howard's petition finding that the planned use would adversely impact the agricultural character of the area.\\nHoward appealed to the Commissioners. He presented evidence that the land in question was unsuitable for agricultural use, that the Nampa Highway District found no traffic problems which would result from the proposed subdivision, and that the fire district believed the subdivision would increase available water for adjacent subdivisions. At the public hearing, a number of interested property owners expressed various objections to Howard's planned use. The Commissioners denied the permit because (1) the subdivision would require the relocation of a main irrigation line, (2) two other subdivisions to the north were almost totally vacant, (3) the subdivision would add problems to the current traffic system, (4) no evidence was presented that the use would be essential or desirable to the public welfare or convenience, and (5) the subdivision would cumulatively change the character of the area in conflict with the Canyon County Comprehensive Plan (the Comprehensive Plan).\\nHoward appealed to the district court. The district court found that the record did not support a denial of the permit because of traffic concerns or the relocation of a main irrigation line. However, the court found that substantial evidence supported the Commissioners' conclusion that Howard's proposed subdivision would substantially and adversely affect the agricultural character of the area. As a result, it affirmed the Commissioners' denial of Howard's petition for a conditional use permit.\\nHoward appealed.\\nII.\\nISSUES ON APPEAL\\n1. Whether the Commissioners erred in denying issuance of Howard's conditional use permit.\\n2. Whether the Planning and Zoning Commission and the Commissioners have authority to deny a conditional use permit, expressly recognized in the Comprehensive Plan, when all reasonable conditions and restrictions upon such use have been satisfied by an applicant for a conditional use permit.\\nIII.\\nSTANDARD OF REVIEW\\nIn a case such as this, the Idaho Supreme Court reviews the record independently of the district court's appellate decision. South Fork Coalition v. Bd. of Comm'rs, 117 Idaho 857, 860, 792 P.2d 882, 885 (1990). Nonetheless, this Court's review is limited to a determination whether the zoning authority's findings and conclusions are supported by substantial, competent evidence. I.C. \\u00a7 67-5279; Butters v. Hauser, 125 Idaho 79, 81, 867 P.2d 953, 955 (1993). In addition, there is a strong presumption of validity favoring the actions of zoning authorities when applying and interpreting their own zoning ordinances. South Fork Coalition, 117 Idaho at 860, 792 P.2d at 885.\\nIV.\\nANALYSIS\\nA. The Commissioners Did Not Err in Denying Howard's Petition for a Conditional Use Permit.\\nHoward asserts that his petition satisfies all reasonable conditions and restrictions for the issuance of a conditional use permit. As such, he argues that the Com missioners must issue him a conditional use permit. We disagree.\\nPursuant to the Local Land Use Planning Act of 1975, I.C. \\u00a7 67-6501, et seq., Canyon County adopted the Comprehensive Plan and the Canyon County Zoning Ordinance No. 93-002 (the Ordinance). The Ordinance states:\\nThe purpose of the \\\"A\\\" (Agricultural) Zone is to have productive agricultural land areas set aside by zoning procedures. Productive and economically viable agricultural lands shall be preserved and protected in accordance with the Comprehensive Plan. Development compatible with agricultural uses may be permitted only in strict compliance with the . other provisions of this Ordinance and the Comprehensive Plan. Where the Commission and/or Board is satisfied that land is not suited for reasonable functioning agricultural uses because of size or other factors, . the Commission and/or Board may permit uses compatible to bona fide agricultural uses . when not in conflict with the Comprehensive Plan.\\nOrdinance, Section 12.3(A). In the case of petitions for a parcel split such as Howard's, the Commission \\\"may . permit the . uses where such uses are deemed essential or desirable to the public convenience or welfare.\\\" Ordinance, Section 12.3(C).\\nWhen deciding whether to grant a conditional use permit, the Ordinance requires the Commissioners to consider:\\n(1) Whether the Ordinance permits the use by Conditional Use Permit;\\n(2) Reasons for the application;\\n(3) Whether the proposed use is harmonious with and in accordance with the Comprehensive Plan.\\n(4) Whether the proposed use will be injurious to other property in the immediate vicinity and/or will change the essential character of the area;\\n(5) Whether adequate sewer, water and drainage facilities, and utility systems are to be provided to accommodate said use;\\n(6) Whether measures will be taken to provide adequate access to and from subject property so that there will be no undue interference with existing or future traffic patterns;\\n(7) Whether essential public services such as, but not limited to, school facilities, police and fire protection, emergency medical services and irrigation facilities, will be negatively impacted by such use or will require additional public funding in order to meet the needs created by the requested change.\\n(8) Whether the proposed use is essential or desirable to the public convenience or welfare.\\nOrdinance, Section 6.1(F).\\nFurther, the Ordinance states that \\\"the person or persons requesting relief under the Zoning Ordinance shall have the burden of persuasion.\\\" Ordinance, Section 3.5(A)(8). Thus, the burden of persuasion was upon Howard to show that all of the above requirements were satisfied. After a public hearing, the Commissioners concluded that Howard's use would not be desirable of the public welfare or convenience and the additional lots would cumulatively change the character of the area in conflict with the Comprehensive Plan. We agree.\\nHoward does not dispute that the area surrounding his land has a pervasively agricultural character. Rather, he argues that his use is compatible with this agricultural character. Indeed, a residential area may be compatible with an existing agricultural use and the Ordinance recognizes this fact. Ordinance, Section 12.3(A), (C). However, the recognition of this fact does not lead to the conclusion that every proposal to build a residential development in an agricultural area must be granted. As the above mentioned criteria indicate, whether to grant a conditional use permit is fact specific. One or two residential areas in an agricultural zone may have only a de minimis effect, but a third development may cumulatively affect the overall character of the area. The Commissioners found that to be the case here.\\nBy his permit, Howard attempts to change the use of approximately a third of his land from agricultural to residential in an area with a pervasive agricultural character. Howard's proposed use would be the third residential subdivision in that area. In addition, the preliminary plat for Howard's subdivision shows that the subdivision is to be built in the middle of his 78 acre property, thus splitting the remaining agricultural area of the land in half. The Commissioners' conclusion that approval of such use would cumulatively change the agricultural character of the area is not clearly erroneous.\\nMoreover, we also affirm the decision that Howard's proposal is in conflict with the Comprehensive Plan. The Comprehensive Plan explicitly seeks to \\\"relieve farm areas of the adverse effects of scattered nonfarm uses\\\" and \\\"eliminate divisions of agriculture parcels for purposes other than bona fide agricultural activities.\\\" Comprehensive Plan, pgs. 18-19. Substantial and competent evidence supports the Commissioners' conclusion that approval of Howard's subdivision in the middle of a large agricultural tract would be the \\\"scattered nonfarm\\\" use prohibited by the Comprehensive Plan and would cumulatively affect the area's character in conflict with the Comprehensive Plan.\\nFinally, we also note that no evidence was presented before the Commission that Howard's use was essential or desirable to the public convenience or welfare. Howard cites authorities from other jurisdictions for the proposition that the challengers to a proposed use bear the burden of proving that the use is violative of the general welfare. This argument lacks merit. The Ordinance specifically places the burden of persuasion upon the applicant to prove that all conditions, including whether the proposed use is essential or desirable to the public welfare, are satisfied. Ordinance, Section 3.5(A)(8). Howard's failure to present any evidence in this regard is further grounds for the denial of his conditional use permit.\\nThus, we conclude that Howard has failed to carry his burden of showing that all the conditions for the issuance of a conditional use permit have been met. Accordingly, we affirm the Commissioners' denial of Howard's petition for a conditional use permit.\\nB. Because Howard Failed to Satisfy All Requirements For the Issuance of a Conditional Use Permit, We Do Not Address Whether Zoning Authorities Have Authority to Deny a Conditional Use Permit When All Requirements for Its Issuance Have Been Satisfied.\\nHoward argues that since the Ordinance specifically allows the granting of conditional use permits in agricultural zones, it is tantamount to a legislative approval of such conditional use and the Canyon County zoning authorities have no discretion to deny the conditional use when the conditions for such use are met. However, because we find that Howard's petition did not meet all the requirements for the issuance of a conditional use permit, we do not address Howard's contention that had he met all such conditions the Commissioners would have lacked the authority to deny his petition.\\nY.\\nCONCLUSION\\nThe Ordinance places the burden of persuasion upon an applicant to prove that all conditions for the granting of a permit have been satisfied, including proof that the proposed use is consistent with the Comprehensive Plan, that the use will not change the essential character of the area, and that the use is essential or desirable to the public convenience or welfare. Howard has failed to carry his burden in this regard and we affirm the Commissioners' denial of his conditional use permit.\\nCosts on appeal to respondent.\\nMcDEVITT, C.J., and JOHNSON, TROUT and SCHROEDER, JJ., concur.\"}"

idaho/12173188.json

@@ -0,0 +1 @@
+"{\"id\": \"12173188\", \"name\": \"In the MATTER OF the Declaration of Parentage and Termination of Parental Rights of: Jane DOE II, A Minor Child (2015-25). Jane Doe, Married Gestational Carrier, and John Doe, Husband of Gestational Carrier, Petitioners-Appellants, v. John Doe I, Married Intended Father, and Jane Doe I, Married Intended Mother, Respondents\", \"name_abbreviation\": \"Doe v. Doe\", \"decision_date\": \"2016-06-02\", \"docket_number\": \"Docket No. 43796\", \"first_page\": \"360\", \"last_page\": \"362\", \"citations\": \"160 Idaho 360\", \"volume\": \"160\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T01:01:01.283414+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice J. JONES and Justices EISMANN, BURDICK and HORTON concur.\", \"parties\": \"In the MATTER OF the Declaration of Parentage and Termination of Parental Rights of: Jane DOE II, A Minor Child (2015-25). Jane Doe, Married Gestational Carrier, and John Doe, Husband of Gestational Carrier, Petitioners-Appellants, v. John Doe I, Married Intended Father, and Jane Doe I, Married Intended Mother, Respondents.\", \"head_matter\": \"372 P.3d 1106\\nIn the MATTER OF the Declaration of Parentage and Termination of Parental Rights of: Jane DOE II, A Minor Child (2015-25). Jane Doe, Married Gestational Carrier, and John Doe, Husband of Gestational Carrier, Petitioners-Appellants, v. John Doe I, Married Intended Father, and Jane Doe I, Married Intended Mother, Respondents.\\nDocket No. 43796\\nSupreme Court of Idaho, Boise, April 2016 Term.\\nFiled: June 2, 2016\\nJones, Gledhill, Fuhrman, Gourley, PA, Boise, attorneys for appellant. Steven Meade argued.\\nCoekerille Law Office, Idaho City, attorneys for respondent. Monica Coekerille argued.\", \"word_count\": \"1352\", \"char_count\": \"8573\", \"text\": \"W. JONES, Justice\\nI. Nature of the Case\\nRespondents, Jane Doe I (\\\"Intended Mother\\\") and John Doe I (\\\"Intended Father\\\" and collectively with Intended Mother, \\\"Intended Parents\\\") are a married couple living in Alaska. In May, 2014, Intended Parents contracted with Jane Doe (\\\"Gestational Carrier\\\"), a gestational surrogate living in Idaho, to carry an embryo made from Intended Father's sperm and a donor egg. After the baby was born, Gestational Carrier and her husband, John Doe (\\\"Husband\\\"), moved for a declaratory judgment that Intended Parents are the parents of the resulting child (\\\"Child\\\"). The district court refused. It reasoned that declaratory judgment was not available to determine the parentage of Child because Idaho law already provides a statutory means by which parties can become parents when using a gestational surrogate\\u2014 the termination of that gestational surrogate's parental rights and the adoption of the child. The district court also found that the surrogacy agreement entered into between the parties was void as against public policy to the extent that it sought to contractually assign parentage.\\nII. Factual and PROCEDURAL Background\\nIntended Parents are a married couple living in Alaska. In May, 2014, Intended Parents entered into a contract (the \\\"Surrogacy Contract\\\") with Gestational Carrier and Husband, a couple living in Idaho. The Surrogacy Contract provided that a donor egg possessed by Intended Parents, which had been fertilized with Intended Father's sperm, would be implanted in Gestational Carrier, who would carry the resulting fetus to term. Once Child was born, Gestational Carrier and Husband would take whatever steps were necessary under Idaho law to ensure that: (1) Intended Parents be named the legal parents of Child; (2) Intended Parents be listed as parents on Child's birth certificate; and (3) Intended Parents obtain immediate sole legal and physical custody of Child.\\nOn July 17, 2015, Gestational Carrier gave birth to Child at St. Alphonsus Hospital in Boise, Idaho. Immediately after Child's birth, Child was placed in the care and custody of Intended Parents, where she has remained throughout this case.\\nOn July 18, 2015, Intended Father, Gestational Carrier and Husband, each signed an affidavit stating that Intended Father, and not Husband, is the biological father of child and should be listed on the birth certificate.\\nOn August 25, 2015, Gestational Carrier and Husband filed an amended petition for declaration of parentage (the \\\"Amended Petition\\\") with the district court. By the Amended Petition, Gestational Carrier and Husband moved for a declaratory judgment that Intended Parents are the biological, legal, and lawful parents of Child, and that Gestational Carrier and Husband are not the legal parents of Child.\\nOn November 9, 2015, the district court issued its decision on the Amended Petition. The district court held, inter alia, that: (1) it is not appropriate for the district court to issue declaratory judgments under Idaho Code section 10-1201 where statutory procedures already address the circumstances at issue\\u2014specifically, a gestational surrogate can terminate her parental rights through a termination proceeding under Idaho Code, Title 16, Chapter 20, and an intended mother can adopt a child under Idaho Code, Title 16, Chapter 15; (2) the fact that a six month residency requirement prevents out of state couples from adopting in Idaho is immaterial, because Intended Mother could presumably adopt Child under Alaska law; and (3) \\\"the terms of the contract sought to be enforced are against public policy, to the extent they are said to establish the parental rights and responsibilities concerning the child . [s]uch contract terms would be in contravention to the Idaho adoption and termination of parental rights statutory schemes.\\\"\\nOn January 14, 2016, the district court entered a judgment denying the request for declaratory relief.\\nGestational Carrier and Husband now appeal.\\nIII. Issues on Appeal\\n1. Did the district court err in refusing to grant declaratory judgment under Idaho Code section 10-1201?\\n2. Did the district court err in finding that the terms of the Surrogacy Contract were against public policy?\\nIV.STANDARD OP REVIEW\\nWhen this Court reviews a trial court's findings of fact and conclusions of law after a bench trial, the review is \\\"limited to ascertaining whether the evidence supports the findings of fact, and whether the findings of fact support the conclusions of law.\\\" Borah v. McCandless, 147 Idaho 73, 77, 205 P.3d 1209, 1213 (2009) (citing Benninger v. Derifield, 142 Idaho 486, 488-89, 129 P.3d 1235, 1237-38 (2006)). Because \\\"it is the province of the trial court to weigh conflicting evidence and testimony and to judge the credibility of the witnesses,\\\" this Court liberally construes the trial court's findings of fact in favor of the judgment. Id. (citing Rowley v. Fuhrman, 133 Idaho 105, 107, 982 P.2d 940, 942 (1999)).... \\\"This Court exercises free review over matters of law.\\\" Id. (citing Bolger v. Lance, 137 Idaho 792, 794, 53 P.3d 1211, 1213 (2002)).\\nBettwieser v. New York Irrigation Dist., 154 Idaho 317, 322, 297 P.3d 1134, 1139 (2013).\\nV.Analysis\\nA. The district court did not err in refusing to grant a declaratory judgment, because there is no legal basis on which it could have done so.\\nIdaho Code section 10-1201 empowers Idaho courts to \\\"declare rights, status, and other legal relations, whether or not further relief is or could be claimed.\\\" I.C. \\u00a7 10-1201.\\nThe parties in this case assert that: because (1) Idaho Code section 10-1201, et. seq. allows Idaho courts to make judicial declarations of the \\\"legal relations\\\" of parties; and (2) the parent-child relationship is a legal relationship under Idaho law; that (3) Idaho courts have the power to establish parent-child relationships by entering declaratory judgments.\\nWe disagree. Although the parties are correct that as a procedural matter Idaho Code section 10-1201, et. seq. does allow courts to declare legal relations, that power is inherently limited to the interpretation of previously established substantive law. Idaho Code section 10-1201, et. seq. does not give this Court, or any other Idaho court, the power to create law. \\\"The legislature and the legislature only, under our constitution, has power to legislate.\\\" Thomas v. Riggs, 67 Idaho 223, 228, 175 P.2d 404, 407 (1946). Where the legislature has not seen fit to provide substantive legal grounds on which a court can base a requested declaration, then it is outside of the authority of that court to make said declaration, even when it would further the interests of all parties involved (as here).\\nHere, there is no previously established legal basis on which this Court can declare the parental rights of Intended Parents. The legislature has provided only the currently existing termination and adoption regimes, which give no special consideration to intended parents who have obtained the services of a surrogate. Unless and until the legislature chooses to enact legislation specifically addressing surrogacy, Intended Parents must proceed within the legal avenues available to them to establish legal parenthood. The fact that Idaho law does not allow non-residents to utilize its adoption statutes is of no import here. Intended Mother is viewed under Idaho law exactly as any other mother wishing to adopt in Idaho.\\nB. We need not address whether surrogacy agreements are against public policy.\\nBecause we have already held that the district court did not err in refusing to grant declaratory relief there is no need at this time for us to address whether the underlying surrogacy contract was in violation of public policy.\\nVI.Conclusion\\nThe judgment of the district court is affirmed.\\nChief Justice J. JONES and Justices EISMANN, BURDICK and HORTON concur.\\n. Intended Parents supported this motion and, though listed as Respondents, are fully in support of this appeal.\"}"

idaho/12314119.json

@@ -0,0 +1 @@
+"{\"id\": \"12314119\", \"name\": \"PORTFOLIO RECOVERY ASSOCIATES, LLC., Plaintiff-Respondent, v. Lloyd MACDONALD, Defendant-Appellant\", \"name_abbreviation\": \"Portfolio Recovery Associates, LLC v. MacDonald\", \"decision_date\": \"2017-06-01\", \"docket_number\": \"Docket No. 43346\", \"first_page\": \"228\", \"last_page\": \"236\", \"citations\": \"162 Idaho 228\", \"volume\": \"162\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:25:00.116853+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice BURDICK, and Justices EISMANN, JONES and HORTON concur.\", \"parties\": \"PORTFOLIO RECOVERY ASSOCIATES, LLC., Plaintiff-Respondent, v. Lloyd MACDONALD, Defendant-Appellant.\", \"head_matter\": \"395 P.3d 1261\\nPORTFOLIO RECOVERY ASSOCIATES, LLC., Plaintiff-Respondent, v. Lloyd MACDONALD, Defendant-Appellant.\\nDocket No. 43346\\nSupreme Court of Idaho, Boise, January 2017 Term.\\nFiled: June 1, 2017\\nBallard Law, PLLC, Rexburg, for appellant.\\nJohnson Mark, LLC, Meridian, for respondent.\", \"word_count\": \"3737\", \"char_count\": \"23185\", \"text\": \"ON THE BRIEFS\\nBRODY, Justice.\\nThis is a debt collection matter. Plaintiff Portfolio Recovery Associates, LLC (\\\"PRA\\\") sued Defendant Lloyd MacDonald for the amount owed on a Citibank credit card account. MacDonald filed a motion for summary judgment, arguing that PRA did not have standing to bring this action because it could not prove that the debt had been assigned by Citibank to PRA. PRA filed a cross-motion for summary judgment. MacDonald objected to the evidence PRA submitted to support its position, arguing that the evidence was inadmissible hearsay and lacked adequate foundation. The magistrate court overruled MacDonald's objections and granted summary judgment in favor of PRA. MacDonald appealed to the district court. The district court affirmed the magistrate court's decision. We reverse.\\nI.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nPRA purchases charged-off credit card accounts and then attempts to collect the debts. PRA claims to own a Citibank credit card account for Lloyd MacDonald. PRA sued MacDonald in magistrate court alleging he failed to pay $3,776.29 owed on the account. MacDonald filed a motion for summary judgment, arguing that PRA did not have standing to bring the suit because PRA could not prove that the account had been assigned to it. PRA filed an objection to MacDonald's motion and a cross-motion for summary judgment. PRA attached the following exhibits to its objection and cross-motion:\\nExhibit 1 Affidavit of Chad Robertson, a Citibank Document Control Officer (\\\"Robertson Affidavit\\\"). No exhibits are attached to the affidavit itself.\\nExhibit 2 Affidavit of Sale of Account by Original Creditor signed by Patricia Hall, a Citibank Financial Account Manager, dated July 16, 2013 (\\\"Hall Affidavit\\\").\\nExhibit 3 Bill of Sale and Assignment from Citibank to PRA\\nExhibit 4 Missing (it is not part of the Clerk's Record and is not part of the record below).\\nExhibit 5 Sears credit card statements in MacDonald's name.\\nMacDonald objected to the consideration of these exhibits, arguing that they are inadmissible hearsay and that the statements contained in the Robertson Affidavit lack foundation. The magistrate court overruled MacDonald's evidentiary objections and granted summary judgment in favor of PRA. MacDonald appealed the magistrate court's decision to the district court. The district court, sitting as an intermediate appellate 00\\u2122.% affirmed the magistrate court's decision. MacDonald appeals the district court's decision, arguing that the Robertson Affidavit and credit card statements are inadmissible and should not have been considered when deciding the parties' cross-motions for summary judgment.\\nII.\\nSTANDARD OF REVIEW\\nWhen reviewing the decision of a district court sitting in its capacity as an appellate court\\n[t]he Supreme Court reviews the trial court (magistrate) record to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. If those findings are so supported and the conclusions follow therefrom and if the district court affirmed the magistrate's decision, we affirm the district court's decision as a matter of procedure.\\nBailey v. Bailey, 153 Idaho 526, 529, 284 P.3d 970, 973 (2012) (quoting Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008)). \\\"Thus, this Court does not review the decision of the magistrate court.\\\" Pelayo v. Pelayo, 154 Idaho 855, 859, 303 P.3d 214, 218 (2013). \\\"Rather, we are 'proeedurally bound to affirm or reverse the decisions of the district court.' \\\" Id. (quoting State v. Korn, 148 Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009)).\\nIII.\\nANALYSIS\\nA. The Robertson Affidavit does not contain adequate foundation and is not admissible under the business records exception to the hearsay rule.\\nMacDonald challenged the admissibility of the Robertson Affidavit, arguing that the statements contained in the affidavit are hearsay and lack adequate foundation. He argued that the affidavit should not be considered when deciding the cross-motions for summary judgment based on the 2014 version of Idaho Rule of Civil Procedure 56(e) which provided that assertions of fact must be properly supported by admissible evidence. Rule 56(e) stated:\\nSupporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.\\nWe have held that these requirements \\\"are not satisfied by an affidavit that is eoneluso-ry, based on hearsay, and not supported by personal knowledge.\\\" State v. Shama Res. Ltd. P'ship, 127 Idaho 267, 271, 899 P.2d 977, 981 (1995).\\nTo determine the admissibility of the Robertson Affidavit it is necessary to look at the actual text of the document. The Robertson Affidavit stated in relevant part:\\nAFFIDAVIT\\nSTATE OF MISSOURI )\\n) ss,\\nCOUNTY OF PLATIE )\\nAccount Holder: LLOYD MACDONALD SSN/FTN7TIN \\u00a7: xxx-xx-xxxx\\nAccount # ending in xxxx\\nThe undersigned, Chad Robertson, being duly sworn, states and deposes as follows:\\n1. I am an employee of Citibank, N.A. (\\\"Citibank\\\"), a national bank located in Sioux Falls, South Dakota, and I am authorized to make this Affidavit. My job title is Document Control Officer. My job responsibilities include reviewing and obtaining account information in Citibank's records as it relates to credit card accounts owned or previously owned by Citibank. This includes accounts previously owned by Citibank (South Dakota), N.A., which merged into Citibank in or about July 2011. The statements set forth in this affidavit are true and correct to the best of my knowledge, information and belief based on either personal knowledge or review of the business records of Citibank.\\n2. My duties include having knowledge of, and access to, business records relating to the Citibank account referenced above. These recoi-ds are kept by Citibank in the regular course of business and it was in the regular course of business of Citibank for an employee or representative with personal knowledge of the act, event, condition, or opinion recorded to make memorandum or records or to transmit information thereof to be included in such memorandum or records; and that the records were made at or near the time of the act and/or event recorded or reasonably soon thereafter.\\n3. Citibank's records reflect that a credit card account ending in account number 2766 (the \\\"Account\\\") was sold to Portfolio Recovery Associates, LLC on or about 6/27/2013. At the time the Account was sold, Citibank prepared and forwarded to Portfolio Recovery Associates, LLC a spreadsheet reflecting Account information as of the sale date based on Citibank's records, including, among other things, the Account number, Account balance, the date of the last payment, the Account holder's name, and Social Security number (the \\\"Account Information\\\"). The Account Information reflects that the Account was opened on 10/4/2005, The Account Information reflects that the Account holder's name at time of the sale was LLOYD MACDONALD, with a Social Security number ending: xxx-xx-xxxx.\\n4. The Account Information indicates that, as of the date the Account was sold, there was due and payable on the Account $3,776.29.\\n5. The Account Information reflects that, as of the date the Account was sold, the last Account payment received by Citibank posted to the Account on 10/2/2012.\\n(emphasis added).\\nThe district court examined MacDonald's objections to the Robertson Affidavit under Idaho Rule of Evidence 803(6)\\u2014the business records exception to the hearsay rule. Rule 803(6) sets forth the foundational requirements for the admission of business records. It states:\\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness:\\n(6) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with 902(11), unless the opponent shows the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term \\\"business\\\" as used in this paragraph includes business, institution, association, profession, occupation and calling of every kind, whether or not conducted for profit.\\nI.R.E. 803(6) (emphasis added).\\nThis Court has made it clear that Rule 803(6) does not require the testimony of the person who created the document in order to admit it as a business record. \\\"The general requirement for admission under I.R.E. 803(6) is that the document be 'produced in the ordinary course of business, at or near the time of occurrence and not in anticipation of trial.' \\\" Large v. Cafferty Realty, Inc., 123 Idaho 676, 683, 851 P.2d 972, 979 (1993) (citing Beco Corp. v. Roberts & Sons Const. Co., 114 Idaho 704, 711, 760 P.2d 1120, 1127 (1988)). The Court has also noted:\\nBecause records of regularly conducted activity are not normally self proving, as public records may be under Rule 803(8), the testimony of the custodian or other person who can explain the record keeping of the organization is ordinarily essential. The custodian need not have personal knowledge of the actual creation of the document nor need [the custodian] have been an employee of the business when the record was made. The test is whether [the custodian] has knowledge of the system used to make the record and not whether [the custodian] has knowledge of the contents of the record.\\nId. (quoting Report of the Idaho State Bar Evidence Committee, C 803, p. 10 (4th Supp. 1985) (emphasis added)).\\nMacDonald argued that the statements contained in the Robertson Affidavit are likely based on information contained on a computer screen. We agree. The fact that Robertson's statements are based on electronic information, however, still implicates Rule 803(6). The Rule makes it clear that a business record can be in any format. In other words, a paper printout is not required to fall under the Rule. Having said that, however, we recognize that electronic information raises heightened concerns about accuracy and authenticity. This is where the foundation for Robertson's statements falls apart.\\nRobertson stated in his affidavit that Citibank records showed that the account linked to MacDonald was sold to PRA. He did not identify the records he examined and did not explain when or how the information was entered into the Citibank records. Robertson also stated that Citibank prepared and delivered a spreadsheet to PRA reflecting account information as of the sale date. Robertson does not explain, however, how that spreadsheet was made or the procedural safeguards that were used to make sure that the information taken from Citibank records and put on the spreadsheet was accurate. His affidavit also does not contain any statement verifying that the information on the spreadsheet was still accurate at the time of his affidavit. The reality is that consumers do not always know or understand when accounts are sold and may make payments to their credit card company that are not reflected on a spreadsheet created at the time of the sale of the debt. For these reasons we find that the foundation for the statements contained in the Robertson Affidavit was not adequate under Rule 803(6).\\nThe magistrate court ruled on MacDonald's objection to the Robertson Affidavit from the bench. Unfortunately, the court did not go through a detailed analysis of the affidavit itself on the record. Instead, the court ruled that it was persuaded to admit the affidavit based on another trial court opinion that MacDonald submitted. We have reviewed that opinion and do not find that it addresses the issues raised in this case. The magistrate court also stated that it would more fully articulate the basis for its decision in two cases that were under advisement in another county. Those decisions are not part of this record, and we cannot use them to evaluate the magistrate court's reasoning. There is not an adequate record to support the magistrate court's decision to admit the Robertson Affidavit, and as such, we find that the magistrate court abused its discretion. The district court erred when it affirmed the magistrate court's decision.\\nB. The Sears Credit Card Statements were inadmissible because they lacked certification.\\nMacDonald also challenged the admissibility of the Sears credit card statements that were submitted by PRA. He contends that the credit card statements are hearsay and do not fall under the business records exception in Rule 803(6). The magistrate court ruled that the credit card statements were admissible. The district court affirmed the decision, finding that the Robertson Affidavit satisfied the certification requirements of Idaho Rule of Evidence 902(11). Rule 902(11) allows the admission of certified records of regularly conducted activity without extrinsic evidence of authenticity. Under the rule, the custodian of the record, or another qualified person, must certify that the record: (1) was made, at or near the time of the occurrence of the matters in the record to be admitted, by a person who has knowledge of those events; (2) is kept in the course of regularly conducted activity; and (3) was made as a regular practice. Because we have ruled that the Robertson Affidavit is inadmissible, there is no certification for the Sears credit card statements. As such, it was an abuse of discretion for the magistrate court to consider the credit card statements, and the district court erred when it affirmed that decision.\\nC. The catch-all exception to the hearsay rule cannot be used to admit the Robertson Affidavit or Sears Credit Card Statements.\\nPRA contends that the \\\"catch-all\\\" exception to the hearsay rule can be used to admit the Robertson Affidavit and Sears credit card statements. Rule 803(24) of the Idaho Rules of Evidence is the catch-all exception. The rule states in relevant part:\\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness.\\n(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general pm^poses of these rules and the interests of justice will best be served by admission of the statement into evidence.\\nI.R.E. 803(24). To allow PRA to use the catch-all exception in this case would render the foundational requirements in 803(6) and the certification requirements in 902(11) meaningless. We addressed this type of argument in Fragnella v. Petrovich, 153 Idaho 266, 281 P.3d 103 (2012). In Fragnella, the Court declined to use the catch-all exception to admit a police report where the Idaho Rules of Evidence specifically stated that a police report is not admissible as a public record. See id. at 275, 281 P.3d at 112 (discussing I.R.E. 803(8)). Although Rule 803(6) and Rule 902(11) do not prohibit the introduction of the Robertson Affidavit or the Sears credit card statements, these rules lay out basic foundation requirements that simply were not satisfied in this case. We recognize that the magistrate court did not consider whether the \\\"catch-all\\\" provision could be used to admit the evidence at issue. Because we find that the catch-all exception does not apply, no findings by the magistrate court on remand are necessary.\\nD.Summary judgment could not be properly granted in MacDonald's favor.\\nMacDonald argues that PRA lacks standing to bring suit because the company has not proven that it owns the Citibank account. The district court rejected this argument, finding that the Robertson Affidavit when accompanied by the Bill of Sale and credit card statements shows that an assignment took place. While we generally do not review denials of motions for summary judgment, we find that MacDonald did not adequately marshal PRA's evidence regarding the existence of an assignment, and therefore, summary judgment could not be granted in his favor on this issue.\\nStanding is not a mere pleading requirement, \\\" 'but rather an indispensable part of the plaintiffs ease.'\\\" Camp Easton Forever, Inc. v. Inland Nw. Council Boy Scouts of Am., 156 Idaho 893, 898, 332 P.3d 805, 810 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).\\n\\\" '[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation,'\\\" Id. (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130). Thus, PRA ultimately bears the burden of proving that MacDonald had a contractual obligation to pay money to Citibank and that PRA is the assignee of that obligation.\\nBecause PRA bears this burden of proof, MacDonald's burden in support of his motion for summary judgment could \\\"be satisfied by showing the absence of material fact with regard to\\\" PRA's claim to be the assignee of MacDonald's obligation. Bromley v. Garey, 132 Idaho 807, 810, 979 P.2d 1165, 1168 (1999). If the materials that MacDonald submitted in support of his motion for summary judgment satisfied this threshold burden, then the burden shifted to PRA to demonstrate by way of admissible evidence that a genuine issue of material fact exists as to this issue. Sherer v. Pocatello Sch. Dist. No. 25, 143 Idaho 486, 489-90, 148 P.3d 1232, 1235-36 (2006).\\nMacDonald failed to meet this initial burden. Consequently, PRA was not required to present admissible evidence to resist MacDonald's motion for summary judgment. MacDonald could have shown the absence of evidence of an assignment \\\"either by an affirmative showing with [his] own evidence or by a review of all [PRA's] evidence and the contention that such proof of an element is lacking.\\\" Holdaway v. Broulim's Supermarket, 158 Idaho 606, 611, 349 P.3d 1197, 1202 (2015) (citing Antim v. Fred Meyer Stores, Inc., 150 Idaho 774, 776, 251 P.3d 602, 604 (Ct. App. 2011)).\\nApparently, because MacDonald had no personal knowledge as to whether Citibank assigned its interest in his account to PRA, he made no effort to make an affirmative showing that there was no assignment to PRA. Instead, under Rule of Civil Procedure 56 as it then existed, the only basis upon which summary judgment could have been granted to MacDonald due to PRA's lack of standing was if MacDonald presented the trial court with a review of all of PRA's evidence of an assignment coupled with the contention that the assembled evidence failed to demonstrate the existence of an assignment. This did not occur. It is important to note that after the summary judgment proceedings were complete before the trial court, Rule 56 was amended, and the amendments took effect on July 1, 2016. We address Rule 56 as it existed at the time of the trial court's decision.\\nThe only affidavit that MacDonald offered in support of his motion for summary judgment was that of his attorney. The affidavit represented that PRA had responded to the unspecified discovery requests and produced the Bill of Sale, the Affidavit of Patricia Hall, and thirteen account statements that were appended to counsel's affidavits as exhibits. Counsel's affidavit did not assert that the appended documents were the entirety of the evidence produced in response to the discovery request.\\nMacDonald's brief in support of his motion does represent that \\\"Plaintiff has provided all the documents it will be able to produce to prove the validity of the debt it claims Defendant owes, as well as its evidence it owns the alleged debt.\\\" There are two difficulties with this representation. The brief is silent as to whether counsel's affidavit contained all documents PRA provided in response to the discovery requests. The greater difficulty with this representation is that the factual assertions in a party's brief in support of a motion for summary judgment were not a basis for granting a motion for summary judgment at the time of the trial court's ruling. Idaho Rule of Civil Produce 56(c) provided that summary judgment decisions were to be based upon \\\"the pleadings, depositions, and admissions on file, together with the affidavits, if any\\\" offered in support of the motion. A representation contained in a brief is not among the items upon which summary judgment could have been properly granted.\\nBecause MacDonald did not adequately marshal PRA's evidence regarding the existence of an assignment, PRA did not ever have a burden of responsive production to show its standing to pursue its claim, and so summary judgment could not properly be granted in MacDonald's favor.\\nIV.\\nATTORNEY'S FEES\\nMacDonald requests an award of attorney's fees on appeal pursuant to Idaho Code section 12-120(1), which allows reasonable attorney's fees to the prevailing party. Because the case is not yet resolved, there is no prevailing party. Where there is no present prevailing party, this Court has refused to award attorney's fees. Howard v. Perry, 141 Idaho 139, 143, 106 P.3d 465, 469 (2005). If MacDonald is ultimately the prevailing party, then the trial court may award him attorney's fees for this appeal.\\nV.\\nCONCLUSION\\nWe reverse the decision of the district court. We remand with instructions to the district court to remand this case to the magistrate court with instructions to vacate the judgment entered in favor of PRA and conduct further proceedings. Costs to MacDonald.\\nChief Justice BURDICK, and Justices EISMANN, JONES and HORTON concur.\"}"

idaho/12314445.json

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+"{\"id\": \"12314445\", \"name\": \"Geralyn GALLAGHER, Plaintiff-Appellant, v. BEST WESTERN COTTONTREE INN, Snake River Petersen Properties, LLC, a Wyoming Close Limited Liability, and Does 1 through 10 inclusively, Defendants-Respondents\", \"name_abbreviation\": \"Gallagher v. Best Western Cottontree Inn\", \"decision_date\": \"2017-01-19\", \"docket_number\": \"Docket No. 43695\", \"first_page\": \"542\", \"last_page\": \"546\", \"citations\": \"161 Idaho 542\", \"volume\": \"161\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T20:28:25.623372+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice J. JONES and Justices EISMANN, BURDICK and W. JONES concur.\", \"parties\": \"Geralyn GALLAGHER, Plaintiff-Appellant, v. BEST WESTERN COTTONTREE INN, Snake River Petersen Properties, LLC, a Wyoming Close Limited Liability, and Does 1 through 10 inclusively, Defendants-Respondents.\", \"head_matter\": \"388 P.3d 57\\nGeralyn GALLAGHER, Plaintiff-Appellant, v. BEST WESTERN COTTONTREE INN, Snake River Petersen Properties, LLC, a Wyoming Close Limited Liability, and Does 1 through 10 inclusively, Defendants-Respondents.\\nDocket No. 43695\\nSupreme Court of Idaho, Twin Falls, November 2016 Term.\\nFiled: January 19, 2017\\nBrowning Law, Idaho Palls, for appellant. Alan Browning argued.\\nMoore & Elia, LLP, Boise, for respondent. Steven R. Kraft argued.\", \"word_count\": \"2355\", \"char_count\": \"13937\", \"text\": \"HORTON, Justice.\\nThis is an appeal from the district court's order granting summary judgment and dismissing Geralyn Gallagher's (Gallagher) lawsuit against the Best Western Cottontree Inn (the Hotel) and Snake River Peterson Properties LLC (Snake River). The district court held that the amended complaint did not relate back to the date of the original filing and that the statute of limitations was not tolled by Snake River's failure to file a certificate of assumed business name. We vacate and remand.\\nI.FACTUAL AND PROCEDURAL BACKGROUND\\nGallagher was injured when she fell on a wet floor at the Hotel on July 10,2012. There is only one Best Western Cottontree Inn in Idaho. The Hotel was owned and operated at that time by Snake River. In preparing to file this suit, Gallagher searched the Secretary of State's database to determine who owned the Hotel. According to the database, the Hotel was owned by L & L Legacy Limited Partnership (L & L) and the certificate of assumed business name was current. Snake River acquired the Hotel before Gallagher's injury but failed to file a certificate of assumed business name with the Secretary of State's office.\\nOn July 9, 2014, Gallagher filed this suit. After filing the complaint, Gallagher attempted to serve Scott Eskelson, who was authorized to accept service on behalf of L & L. The record does not show when Gallagher attempted to serve Eskelson. Mr. Eskelson refused to accept service and informed Gallagher that the Hotel had been sold to Snake River and that Snake River owned the Hotel at the time Gallagher was injured. Gallagher filed a motion to extend the time for service on January 8, 2015. The motion was granted on January 14, 2015. On April 9, 2015, an amended complaint and summons was served on Snake River. Gallagher and Snake River filed a stipulation to dismiss L & L. On June 4, 2015, L & L was dismissed from the case with prejudice.\\nSnake River filed a motion for summary judgment in which it argued that it had not been timely joined in the case and that the amended complaint should not relate back to the time the first complaint was filed. Following a hearing, the district court granted Snake River's motion for summary judgment and dismissed the case. Gallagher filed a motion to reconsider, which the district court denied. Gallagher timely appealed.\\nII.STANDARD OF REVIEW\\n\\\"When reviewing an order for summary judgment, the standard of review for this Court is the same standard used by the district court in ruling on the motion.\\\" Winn v. Campbell, 145 Idaho 727, 729, 184 P.3d 852, 854 (2008) (citing Watson v. Weick, 141 Idaho 500, 504, 112 P.3d 788, 792 (2005)). Summary judgment is proper when, \\\"the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.\\\" I.R.C.P. 56(c). \\\"If there is no genuine issue of material fact, 'only a question of law remains, over which this Court exercises free review.' \\\" Winn, 145 Idaho at 729, 184 P.3d at 854 (quoting Watson, 141 Idaho at 504, 112 P.3d at 792).\\nIII.ANALYSIS\\nThe facts of this case as they relate to the issues on appeal are not in dispute. Neither party disputes that Snake River failed to file a certificate of assumed business name with the Secretary of State's office. Additionally, it is undisputed that Snake River did not receive notice of this claim until it was served with the amended complaint on April 9, 2015. The only questions presented by this appeal are whether the amended complaint relates back to the date of the original complaint and whether the statute of limitations should be tolled due to Snake River's failure to file the certificate of assumed business name. These issues will be discussed in turn.\\nA. Relation back under Idaho Rule of Civil Procedure 15(c).\\nGallagher contends that the amended complaint should relate back to the date that she filed the original complaint. Gallagher argues that because complaints can be amended at any time, and because the original complaint was filed within the statute of limitations, the amended complaint should relate back to that time. The district court found that because Gallagher was amending her complaint to name a new defendant, Idaho Rule of Civil Procedure 15(c) applied. Because Snake River did not have notice of the suit within the statute of limitations, the district court held that the amended complaint could not relate back. The district court's conclusion was correct.\\nIdaho Rule of CM Procedure 15(c) states, [a]n amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party, the party to be brought in by amendment (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) know or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against that party.\\nI.R.C.P. 15(c). This Court has found the phrase, \\\"within the period provided by law for commencing the action\\\" to mean within the statute of limitations. Wait v. Leavell Cattle Inc., 136 Idaho 792, 795, 41 P.3d 220, 223 (2001) (citing Hoopes v. Deere & Co., 117 Idaho 386, 389, 788 P.2d 201, 204 (1990)). In Wait, the plaintiff attempted to amend her complaint to name a new party. Id. at 794, 41 P.3d at 222. The district court found that the amended complaint did not relate back to the filing date of the original complaint because, while the defendant had notice of the suit within the time allowed for service of process, the plaintiff was unable to show that the defendant had notice of the suit before the statute of limitations expired. Id. at 795, 41 P.3d at 223.\\nIn this case, it is undisputed that Snake River did not receive notice of the suit until it was served with the amended complaint on April 9, 2015. The statute of limitations for personal injury claims is 2 years. I.C. \\u00a7 5-219. As Gallagher was injured on July 10, 2012, the statute of limitations expired on July 10, 2014. Because Snake River did not receive notice of the suit before July 10, 2014, Gallagher failed to meet the requirements of Idaho Rule of Civil Procedure 15(c) and the amended complaint does not relate back to the date the original complaint was filed.\\nB. Tolling the Statute of Limitations.\\nGallagher next asserts that the statute of limitations should be tolled because Snake River failed to file a certificate of assumed business name with the Secretary of State. The district court found that because Gallagher's only search was of the Secretary of State's database, Gallagher did not exercise reasonable diligence in ascertaining the proper party. Because Gallagher did not exercise reasonable diligence in ascertaining the correct party to sue, the district court declined to toll the statute of limitations.\\nIdaho Code section 53-504 provides that \\\"[a]ny person who proposes to or intends to transact business in Idaho under an assumed business name shall before beginning to transact business, file with the secretary of state a certificate of assumed business name in a form proscribed by the secretary of state.\\\" I.C. \\u00a7 53-504(1). The purpose of the statute \\\"is to ensure disclosure on the public record of the true names of persons who transact business in Idaho.\\\" I.C. \\u00a7 53-502. The consequences of failing to file a certificate are provided by Idaho Code section 53-509. Section 53-509 provides that a business may not maintain a legal action in Idaho until it complies with the statute. I.C. \\u00a7 53-509(1). It further provides that \\\"[a]ny person who suffers a loss because of another person's noncompliance with the requirements of this chapter shall be entitled to recover damages in the amount of the loss, and attorney fees and costs incurred in connection with recovery of damages.\\\" I.C. \\u00a7 53-509(2). While this Court has previously suggested that we would consider tolling that statute of limitations where a party failed to file a certificate of assumed business name, we have never been presented facts that would warrant a tolling. See Winn v. Campbell, 145 Idaho 727, 184 P.3d 852 (2008); see also Ketterling v. Burger King Corp., 152 Idaho 555, 272 P.3d 527 (2012). The facts of this case are readily distinguishable from both Winn and Ketter-ling and would likely qualify under the standard announced in those cases, however we find that the statutory remedy is adequate and so decline to apply an equitable remedy in this ease. By so holding, we depart from our previous indication in Winn and Ketter-ling that we might find circumstances justifying tolling the statute of limitations when a defendant has failed to file a certificate of assumed business name.\\nAs footnote 1 indicates, although the parties and the Court have referred to the remedy sought in this case as tolling the statute of limitations, it is more accurate to say that Gallagher seeks to apply the doctrine of equitable estoppel. It is a fundamental principle that equitable remedies are only available when \\\"there is no adequate remedy at law and if sufficient grounds to invoke equity, such as mutual mistake, fraud, or impossibility, are present.\\\" AED, Inc. v. KDC Investments, LLC., 155 Idaho 159, 166, 307 P.3d 176, 183 (2013). In eases where a business fails to file a certificate of assumed business name and another party suffers damage, we hold that there is an adequate statutory remedy at law. Thus, there is no reason to apply the equitable remedy of tolling the statute of limitations.\\nIdaho Code section 53-509(2) provides a cause of action for parties who suffer damages as a result of a party's failure to file a certificate of assumed business name. In a case where the plaintiff has been misled to his or her prejudice resulting in the failure to timely name the proper defendant before the expiration of the statute of limitations, the plaintiffs damages will include the lost opportunity for recovery in the original action. Thus, in order to recover in a case such as this, the plaintiff must show that she would have prevailed in her personal injury action and the amount of damages she would have recovered, in addition to any other damages that may have been proximately caused by the defendant's breach of its statutory duty. As this is a statutory remedy, a party must bring this action within 3 year's of the accrual of the cause of action. I.C. \\u00a7 5-218,\\nHere, although Idaho Code section 63-509(2) was at the heart of the issue before the district court, because of our previous statements the parties and the district court understandably directed their attention to the question whether the statute of limitations should be tolled without consideration of the available legal remedy. Although we find that the district court correctly dismissed Gallagher's personal injury action due to the expiration of the statute of limitations, we remand this case in order to give the district court the opportunity to entertain a motion to amend the complaint to assert a cause of action against Snake River under Idaho Code section 63-509(2). In view of this result, we find that there is no prevailing party.\\nIV. CONCLUSION\\nWe vacate the judgment of the district court dismissing Gallagher's complaint and remand for further proceedings consistent with this opinion.\\nChief Justice J. JONES and Justices EISMANN, BURDICK and W. JONES concur.\\n. The district court and the parties have used variations of the verb \\\"toll\\\" in their analysis of the effect of Snake River's failure to file a certificate of assumed business name with the Secretary of State. This Court has recently used the term in this context in Winn and Ketterling v. Burger King Corp., 152 Idaho 555, 272 P.3d 527 (2012). In doing so, we have been using a convenient shorthand.\\n\\\"[E]stoppel does not eliminate, toll, or extend the statute of limitations.\\\" City of McCall v. Buxton, 146 Idaho 656, 664, 201 P.3d 629, 637 (2009); Ferro v. Soc'y of Saint Pius X, 143 Idaho 538, 540, 149 P.3d 813, 815 (2006). Rather, estoppel \\\"bars a party from asserting the statute of limitations as a defense for a reasonable time after the party asserting estoppel discovers or reasonably could have discovered the truth.\\\" Id. Our use of various forms of \\\"toll\\\" in this opinion refers to whether Snake River is estopped from asserting the statute of limitations as a defense.\\n. Chapter 5, Title 53 of the Idaho Code was repealed effective July 1, 2015, 2015 Idaho Sess. L. ch. 251, \\u00a7 3, p. 1047. Idaho Code section 53- 504 was replaced by Idaho Code section 30-21-805. 2015 Idaho Sess. L. ch. 243, \\u00a7 14, p. 784. The new statute imposes similar requirements upon those who operate under assumed business names. The newly enacted statute provides:\\n(a) Any person who proposes to or intends to transact business in Idaho under an assumed business name shall, before beginning to transact business, deliver to the secretary of state for filing a certificate of assumed business name in a form prescribed by the secretary of state.\\n(b) A separate certificate of assumed business name must be filed for each assumed business name a person uses.\\nI.C. \\u00a7 30-21-805. This opinion will address the operation of the provisions of Chapter 5, Title 53, Idaho Code which were in effect at the relevant time.\"}"

idaho/130622.json

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+"{\"id\": \"130622\", \"name\": \"SAGEWILLOW, INC. Petitioner-Appellant, v. IDAHO DEPARTMENT OF WATER RESOURCES, James Mays, Mays Land and Livestock, and Blaine County Canal Company, Respondents\", \"name_abbreviation\": \"Sagewillow, Inc. v. Idaho Department of Water Resources\", \"decision_date\": \"2000-09-06\", \"docket_number\": \"No. 24431\", \"first_page\": \"24\", \"last_page\": \"26\", \"citations\": \"135 Idaho 24\", \"volume\": \"135\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:39:15.939834+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SAGEWILLOW, INC. Petitioner-Appellant, v. IDAHO DEPARTMENT OF WATER RESOURCES, James Mays, Mays Land and Livestock, and Blaine County Canal Company, Respondents.\", \"head_matter\": \"13 P.3d 855\\nSAGEWILLOW, INC. Petitioner-Appellant, v. IDAHO DEPARTMENT OF WATER RESOURCES, James Mays, Mays Land and Livestock, and Blaine County Canal Company, Respondents.\\nNo. 24431.\\nSupreme Court of Idaho, Twin Falls, November 1999 Term.\\nSept. 6, 2000.\\nRehearing Denied Nov. 28, 2000.\\nHolden, Kidwell, Hahn & Crapo, Idaho Falls; Rosholt, Robinson & Tucker, Twin Falls, for appellant. Kent W. Foster and Norman M. Semanko argued.\\nHon. Alan G. Lance, Attorney General; Phillip J. Rassier, Deputy Attorney General, for respondent Department of Water Resources. Phillip J. Rassier argued.\\nGivens Pursley, LLC, Boise, for respondents James Mays, Mays Land and Livestock, and Blaine County Canal Company. Michael C. Creamer argued.\", \"word_count\": \"1390\", \"char_count\": \"8477\", \"text\": \"PER CURIAM.\\nThis is an appeal from the district court's review of a decision issued by the Idaho Department of Water Resources (IDWR), ruling that certain water rights belonging to Sagewillow, Inc. (Sagewillow) were partially forfeited. We remand the ease to the Snake River Basin Adjudication district court.\\nI.\\nFACTS AND PROCEDURAL BACKGROUND\\nA. Facts\\nIn 1989, Sagewillow purchased real property in Butte County, known locally as the Knollin Ranch. The property included appurtenant surface and ground water rights. In 1993, Sagewillow acquired additional property northeast of the Knollin Ranch. Six of Sagewillow's water rights, which originally authorized the irrigation of a total of 2,383 acres, are involved in this appeal. Most of the water rights have priority dates ranging from 1950 to 1960. One of the water rights has a 1972 priority date.\\nIn October 1990, Sagewillow filed an application for transfer, seeking to transfer the place of use and point of diversion for water right number 33-02091. No protests were filed to the transfer, which was formally approved in October 1992. In 1993, Sagewillow filed seven additional applications for transfer with the IDWR, proposing a change in the place of use for its water rights. Protests to several of the applications were submitted by respondents James Mays, Mays Land and Livestock, and Blaine County Canal Company. A recommended order was issued by the IDWR on May 22,1995.\\nNear the end of 1995, Sagewillow filed several exceptions to the order, and on April 8, 1996, the IDWR entered an amended order, ruling that a portion of Sagewillow's water rights had been forfeited because some of the land had not been irrigated for approximately 20 years. Additionally, the order voided the previously approved transfer of water right number 33-02091, which Sagewillow had been using to irrigate 320 acres of its property, and stated that as a result of the forfeitures, no more than 1,412 acres could be irrigated under Sagewillow's water right.\\nB.Procedural Background\\nSagewillow sought judicial review of the IDWR's decision in the district court of the seventh judicial district in May 1996. In December 1996, Sagewillow filed a motion to dismiss the IDWR as a party and to limit the IDWR's involvement in the review proceedings. The district court denied the motion to dismiss, ruling that the IDWR was a necessary party to the dispute.\\nIn a memorandum decision issued in December 1997, the district court affirmed the IDWR's order, lading that Sagewillow's resumption of use was not a valid defense to forfeiture under the facts of the ease. Sagewillow appeals the district court's decision.\\nII.\\nISSUES ON APPEAL\\nThe following issues are presented on appeal:\\nA. Whether the district court and the IDWR erred in concluding that resumption of use was not available as a defense to forfeiture under the circumstances.\\nB. Whether the district court erred in affirming the IDWR's conclusion that Sagewillow's water rights were forfeited.\\nC. Whether the district court erred in affirming the IDWR's decision to void Sagewillow's previously approved transfer.\\nD. Whether the district court erred in allowing the IDWR to participate as a party during judicial review of the IDWR's own decision.\\nIII.\\nANALYSIS\\nThe District Court Lacked Jurisdiction To Review The IDWR Decision.\\nSagewillow sought judicial review of the IDWR's decision in the district court of the seventh judicial district. For the reasons discussed below, the district court lacked jurisdiction to review the IDWR decision and accordingly, the district court's decision is vacated and the case is remanded to the Snake River Basin Adjudication (SRBA) district court for further review.\\nThe Idaho Legislature has created a procedural framework by which disputes over the rights and use of water in this state are to be determined. See Walker v. Big Lost River Irr. Dist., 124 Idaho 78, 80, 856 P.2d 868, 870 (1993). When a person with an established water right, by permit or otherwise, seeks to change the point of diversion, place of use, period of use, or nature of use of water, an application to do so must first be made to the IDWR. See I.C. \\u00a7 42-222(1). After examination, the IDWR may grant or deny such application. See id. All rights to the use of water are lost or forfeited by a failure for the term of five (5) years to apply it to beneficial use for which it was appropriated. See I.C. \\u00a7 42-222(2). Any person or persons aggrieved by the determination of the IDWR in approving or rejecting an application to change the point of diversion, place, period of use or nature of use of water under an established right may seek judicial review. See I.C. \\u00a7 42-222(3). The judicial review shall be had in accordance with the provisions and standards set forth in chapter 52, title 67, Idaho Code. See I.C. \\u00a7 42-1701A(4). Section 67-5272(1) of the Idaho Code states:\\nExcept when required by other provision of law, proceedings for review or declaratory judgment are instituted by filing a petition in the district court of the county in which:\\n(a) the hearing was held; or\\n(b) the final agency action was taken; or\\n(c) the aggrieved party resides .; or\\n(d) the real property or personal property . is located.\\nI.C. \\u00a7 67-5272(1) (emphasis added). Therefore, legislatively defined procedures for review of an IDWR decision allow filing in various district courts \\\"except where required by other provision of law.\\\" I.C. \\u00a7 67-5272(1).\\nIn 1987, the SRBA was commenced, precluding all private actions for adjudication of water rights within the Snake River Basin water system. See I.C. \\u00a7 42-1404(1); Walker, 124 Idaho at 81, 856 P.2d at 871. In response to the commencement of the SRBA, this Court issued an order designating the district court of the fifth judicial district, Twin Falls County, as the county and venue for the SRBA. See Walker, 124 Idaho at 80, 856 P.2d at 870. This Court has since held that resolution of all claims arising within the scope of the SRBA are within the exclusive jurisdiction of the SRBA district court. See id. at 81, 856 P.2d at 871. Furthermore, the adjudication statutes provide that any supplemental adjudication of water rights within the scope of the SRBA must be filed in the district court that originally heard the general adjudication. See I.C. \\u00a7 42-1424(3).\\nSagewillow's claim falls clearly within the exclusive jurisdiction of the SRBA district court. The waters involved are within the scope of the SRBA because they are part of the Snake River water system. See generally, In re Snake River Basin Water System, 115 Idaho 1, 764 P.2d 78 (1988). The IDWR decision involved a contest to Sagewillow's water right and transfer of the same. Under the facts of this case, I.C. \\u00a7 67-5272(1) provides that review of the IDWR decision may be sought generally in the district court of the seventh judicial district. However, because the requirements of I.C. \\u00a7 42-1424(3) constitute \\\"another provision of law,\\\" the statutes governing the SRBA adjudication and this Court's holding in Walker preclude Sagewillow from filing its petition for review of the IDWR decision in a court other than the SRBA district court.\\nAccordingly, because Sagewillow's request for review of the IDWR decision falls within the exclusive jurisdiction of the SRBA district court, we hold that the district court below lacked jurisdiction to review the decision of the IDWR.\\nIV.\\nCONCLUSION\\nWe hold that the SRBA district court has exclusive jurisdiction over this matter and that the district court lacked jurisdiction to review the IDWR decision. Accordingly, we vacate the district court's decision and remand the ease to the SRBA district court for review. No costs or attorney fees are awarded on appeal.\"}"

idaho/1359145.json

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+"{\"id\": \"1359145\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Gerald Michael ANDERSON, Defendant-Appellant; State of Idaho, Plaintiff-Respondent, v. Elberteen Louise Pearson-Anderson, Defendant-Appellant\", \"name_abbreviation\": \"State v. Anderson\", \"decision_date\": \"2004-07-23\", \"docket_number\": \"Nos. 27670, 27671\", \"first_page\": \"484\", \"last_page\": \"488\", \"citations\": \"140 Idaho 484\", \"volume\": \"140\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T20:13:25.703756+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice TROUT, Justices KIDWELL, EISMANN and BURDICK concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Gerald Michael ANDERSON, Defendant-Appellant. State of Idaho, Plaintiff-Respondent, v. Elberteen Louise Pearson-Anderson, Defendant-Appellant.\", \"head_matter\": \"95 P.3d 635\\nSTATE of Idaho, Plaintiff-Respondent, v. Gerald Michael ANDERSON, Defendant-Appellant. State of Idaho, Plaintiff-Respondent, v. Elberteen Louise Pearson-Anderson, Defendant-Appellant.\\nNos. 27670, 27671.\\nSupreme Court of Idaho, Boise,\\nApril 2004 Term.\\nJuly 23, 2004.\\nWatson Law Offices, Coeur d\\u2019Alene, for appellant Gerald Michael Anderson. Roland D. Watson argued.\\nMolly J. Huskey, State Appellate Public Defender, Boise, for appellant Elberteen Louise Pearson-Anderson. Sara B. Thomas argued.\\nHon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.\", \"word_count\": \"2113\", \"char_count\": \"13317\", \"text\": \"SCHROEDER, Justice.\\nGerald Michael Anderson (\\\"Michael\\\") and Elberteen L. Pearson-Anderson (\\\"Tina\\\") (together referred to as the \\\"Andersons\\\") appeal from the judgment of conviction entered upon conditional guilty pleas to trafficking in methamphetamine. The Andersons challenge the use of evidence obtained in a warrantless search of them home. The State asserts that the search was authorized under conditions of release on bail contained in a district court order entered in a prior case. The district court denied the Andersons' motion to suppress evidence of methamphetamine manufacturing found during the search and Michael's motion to suppress statements made during an interrogation. The Andersons appeal.\\nI.\\nFACTS AND PROCEDURAL HISTORY\\nMichael entered a conditional guilty plea to a charge of trafficking in methamphetamine by manufacture on March 6, 2000. Tina was found guilty of the same charge at the conclusion of a jury trial. Both were sentenced on April 19, 2000, and both appealed the district court's denial of motions to suppress filed in each case. They were released on bail pending appeal, subject to the condition that they were subject to warrantless searches of their home and personal property. The order granting release containing the condition was written by the Andersons' attorney but was not signed by the Andersons before it was entered by the district court.\\nOn January 9, 2001, seven law enforcement officers led by Detective Elizabeth Bradbury of the Idaho State Police arrived at the Anderson home in Spirit Lake. The police had received tips from a neighbor who had detected the odor of what she suspected to be a methamphetamine lab. The parties dispute whether the officers first smelled the odor of methamphetamine production before or after entering the home; however, the district court found that it was not until after entry that the police confirmed the existence of drug production. When Detective Bradbury and the other officers entered the Andersons' home to investigate, Tina came out of the bathroom area. Detective Bradbury asked her if she knew why they were there. According to Detective Bradbury's testimony, Tina answered affirmatively. Inside the home the police observed material which they suspected was being used to manufacture methamphetamine. They also detected an odor which they associated with a methamphetamine laboratory.\\nFollowing the initial entry into the trailer, but before seizing the methamphetamine manufacture materials, officer Terry Morgan sought and received a search warrant based largely on the observations of the officers made during the January 9, 2001, incursion into the Anderson home. Prior to seeking a search warrant, Michael was arrested, read his Miranda rights, and interviewed by Morgan at the Kootenai County Jail. Mike admitted to the manufacture of methamphetamine. Under the search warrant, the officers returned to the Andersons' home and the manufacturing materials were seized.\\nThe Andersons entered conditional guilty pleas under the stipulation that they would have the right to appeal the district court's denial of the motion to suppress the evidence found during the January 9, 2001 search and interrogation. The events leading to and issues involved in this appeal concerning the search are identical. The Andersons' cases were combined, and the decisions on that issue are the same as to each. Michael presents a separate issue concerning his interrogation.\\nII.\\nTHE POLICE HAD REASONABLE SUSPICION JUSTIFYING THE SEARCH\\nA. Standard of Review\\nIn all eases when questions of law are presented, this Court is not bound by the district court's findings, but is free to draw its own conclusions from evidence presented. Auto. Club Ins. Co. v. Jackson, 124 Idaho 874, 876, 865 P.2d 965, 967 (1993).\\nWarrantless searches are presumptively unreasonable. State v. Woolery, 116 Idaho 368, 370, 775 P.2d 1210, 1212 (1989), cert. denied 511 U.S. 1057, 114 S.Ct. 1623, 128 L.Ed.2d 348 (1994). The burden of proof rests with the State to demonstrate that the search either fell within a well-recognized exception to the warrant requirement or was otherwise reasonable under the circumstances. Id.\\nB. The search conducted on January 9, 2001, was reasonable under the circumstances.\\nIdaho has not defined the extent of privacy rights held by a person who has been convicted, sentenced, and released on bail pending appeal. In a related area, nonconsensual warrantless searches of probationers and their property by probation or parole officers constitute an exception to the warrant requirement independent of consent. State v. Pinson, 104 Idaho 227, 657 P.2d 1095 (Ct.App.1983). Under limited circumstances, a probationer's home may be searched without a warrant and without probable cause. Griffin v. Wisconsin, 483 U.S. 868, 872-73, 107 S.Ct. 3164, 3167-68, 97 L.Ed.2d 709, 716-17 (1987). The reasonable grounds standard for a warrantless parole search requires less proof than the standard of probable cause. Pinson, 104 Idaho at 232-33, 657 P.2d at 1100-01. Recently, the United States Supreme Court held:\\nWhen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable.\\nUnited States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001).\\nIdaho has not determined whether an individual released after conviction, but not yet on probation or parole, has a reduced expectation of privacy. Other courts that have addressed the issue have concluded that such individuals are to be treated similarly to probationers and parolees. In State v. Fisher, 145 Wash.2d 209, 35 P.3d 366 (2001), the Washington Supreme Court held that a bench warrant for the arrest of a convicted felon who had been released subject to conditions set by the court was correctly based upon reasonable suspicion, rather than probable cause. Id. at 376. The court explained that the convicted defendant had a diminished expectation of privacy because of the State's continued interest in supervising convicted defendants. Id.\\nSimilarly, the Washington Court of Appeals concluded that the state has a continued interest in convicted felons who are released pending appeal. In State v. Lucas, 56 Wash.App. 236, 783 P.2d 121 (1991), the court explained:\\nLucas has been convicted but execution of the judgment and sentence has only been stayed due to his appeal____ While the stay of execution acts to preserve the status quo, it does not release him from his obligation to serve the full penalty imposed by the sentence____The stay merely suspends the power of the trial court to issue execution of the judgment and sentence.\\nId. at 241, 783 P.2d at 124-25. (Citations omitted). The court concluded Lucas should expect close scrutiny by the State. Id. at 241, 783 P.2d at 125.\\nIn United States v. Kills Enemy, 3 F.3d 1201 (8th Cir.1993), the defendant contended that because, upon his conviction, the court continued his pretrial release, he was not subject to the same abridgment of his Fourth Amendment rights as a probationer or parolee. The Eighth Circuit Court of Appeals rejected the argument:\\nA convicted person awaiting sentence is no longer entitled to a presumption of innocence or presumptively entitled to his freedom____As with the parole and probation cases, there is a heightened need for close supervision of the convicted person's activities to protect society and the releasee himself, and the releasee is entitled only to conditional liberty---- In particular, in cases involving drugs, authorities supervising the convict \\\"must be able to act based on a lesser degree of certainty that the Fourth Amendment would otherwise require in order to intervene before [the person] does damage to himself or society.\\\" Griffin, 483 U.S. at 879, 107 S.Ct. at 3171, 97 L.Ed.2d at 721.\\nId. at 1203.\\nIn Idaho a convicted felon admitted to bail pending appeal is subject to conditions ordered by the trial court. I.C.R. 46(b) and (d). Thus, the Andersons had a lesser degree of liberty and a resulting reduced expectation of privacy. Because their convictions were for drug crimes, a heightened need of supervision was necessary to protect them and society. Because of the Andersons' reduced expectation of privacy, the police needed only a reasonable basis to conduct a warrantless search of them home.\\nIn its opinion, the district court stated:\\n[W]hile the unconfirmed tips from a neighbor of the Andersons and from Spirit Lake police would not, by themselves, be sufficient to establish probable cause for the issuance of a search warrant, I find that they are sufficient to give the officers reasonable grounds to conduct the search in this case. I also find that because the initial search of the Anderson residence consisted of a visual sweep to determine whether any controlled substances were present, it was reasonably related to disclosure or confirmation of the presence of controlled substances within the residence.\\nAlthough reputation alone is insufficient to establish reasonable grounds, the Andersons' convictions and past drug history, combined with the rumors and reports of both the Spirit Lake police and the Andersons' neighbor are sufficient to establish reasonable grounds for the search.\\nIII.\\nMICHAEL ANDERSON'S SIXTH AMENDMENT RIGHTS WERE NOT VIOLATED\\nA. Standard of Review\\nWhen a violation of a constitutional right is challenged through a motion to suppress, the proper appellate response is one of deference to factual findings unless they are clearly erroneous. However, this Court exercises free review over the trial court's determination as to whether constitutional requirements have been satisfied in light of the facts found. State v. Weber, 116 Idaho 449, 776 P.2d 458 (1989).\\nB. The right to counsel on the new charge was not violated.\\nAnderson maintains that his Sixth Amendment right to counsel was violated when Officer Terry Morgan interviewed him at the jail. He argues that since the new offense about which he was interviewed also constituted a violation of his conditions of release on the prior case being appealed, the interview violated his Sixth Amendment right to counsel.\\nAnderson had invoked his right to counsel in the prior case which was on appeal at the time he was arrested on the charge in this case. He was properly advised of his right to counsel on the new charge. Although a waiver of counsel following Miranda warnings is sufficient under both the Fifth and Sixth Amendments during the postindictment, custodial interrogation of a defendant, Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988), such waiver is not valid under the Sixth Amendment once the defendant has requested counsel. When a defendant has invoked his right to counsel, a waiver of that right in a police-initiated interrogation is invalid, even if the waiver was voluntary, knowing, and intelligent under the traditional standard. Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990); Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). There is no showing that Anderson waived the right to counsel in the prior charge. However, Anderson's Sixth Amendment right to counsel in the prior case on appeal did not apply to the new offense even if the new offense would constitute a violation of the conditions of his release in the earlier case. \\\"The Sixth Amendment right [to counsel], however, is offense-specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced____\\\" McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158, 166-67 (1991). It does not apply to other offenses, even if they are closely related factually to the offense charged, unless those other offenses would be the same offense under the test in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001). There is no contention that the offense charged in Anderson's case that was on appeal was the same offense as the one about which he was questioned in the jail. Thus, although the Sixth Amendment may prevent the State from using Anderson's statements in the prior case on appeal (e.g., in proceedings to revoke his release), it does not bar the use of those statements in this case.\\nIV.\\nCONCLUSION\\nThe decision of the district court is affirmed.\\nChief Justice TROUT, Justices KIDWELL, EISMANN and BURDICK concur.\\n. See State v. Devore, 134 Idaho 344, 2 P.3d 153 (Ct.App.2000)\"}"

idaho/1565786.json

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+"{\"id\": \"1565786\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Billie Lou DAVIS, Defendant-Appellant; State of Idaho, Plaintiff-Appellant, v. Billie Lou Davis, Defendant-Respondent\", \"name_abbreviation\": \"State v. Davis\", \"decision_date\": \"2005-06-08\", \"docket_number\": \"Nos. 30626, 31000\", \"first_page\": \"828\", \"last_page\": \"843\", \"citations\": \"141 Idaho 828\", \"volume\": \"141\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T23:23:49.667643+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge LANSING and Judge Pro Tem WALTERS concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Billie Lou DAVIS, Defendant-Appellant. State of Idaho, Plaintiff-Appellant, v. Billie Lou Davis, Defendant-Respondent.\", \"head_matter\": \"118 P.3d 160\\nSTATE of Idaho, Plaintiff-Respondent, v. Billie Lou DAVIS, Defendant-Appellant. State of Idaho, Plaintiff-Appellant, v. Billie Lou Davis, Defendant-Respondent.\\nNos. 30626, 31000.\\nCourt of Appeals of Idaho.\\nJune 8, 2005.\\nReview Denied Aug. 24, 2005.\\nMatthews Law Offices and Griffard Law Offices, Boise, for Davis. Leo N. Griffard, Jr. argued.\\nHon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for State of Idaho. Kenneth K. Jorgensen argued.\", \"word_count\": \"6787\", \"char_count\": \"40931\", \"text\": \"PERRY, Chief Judge.\\nIn Docket No. 30626, Billie Lou Davis appeals from the district judge's order granting the state's motion to dismiss without prejudice a criminal charge of operating a motor vehicle while under the influence of alcohol or drugs (DUI). In Docket No. 31000, the state appeals from a different district judge's order granting Davis's motion to dismiss with prejudice a subsequent felony DUI charge alleging the same conduct as the original charge, which was refiled following its dismissal. We affirm the order dismissing the original DUI charge without prejudice and reverse the order dismissing the subsequent DUI charge.\\nI.\\nFACTS AND PROCEDURE\\nFollowing a traffic stop on October 26, 2002, Davis was arrested for DUI. The state filed a criminal complaint against Davis, charging her with felony DUI. I.C. \\u00a7 18-8004, 18-8005(5). On October 28, Davis was released on bond. On January 21, 2003, the magistrate ordered that Davis be held to answer on the DUI charge. On January 23, the state filed an information, and trial was scheduled for June.\\nOn May 27,2003, the trial was rescheduled for August 5 because one of the state's witnesses was scheduled for vacation on the June trial date. On July 2, the state filed a motion to again continue the trial, asserting that two of its witnesses were scheduled for vacation on the August trial date. On July 21, at the hearing held on the state's motion, Davis refused to waive her right to a speedy trial. The district court then denied the state's motion to continue, finding that the state's reasons for delaying Davis's trial were based on \\\"pure convenience\\\" and did not rise to the level of good cause.\\nOn August 4, 2003, the state orally moved to dismiss the case without prejudice. Davis requested that the dismissal be with prejudice. The district court orally granted the state's motion. On August 18, Davis filed a motion asking the district court to reconsider the terms of its oral dismissal of the DUI charge and that the dismissal be with prejudice. The state filed a written motion to dismiss without prejudice on September 4. On September 5, the state filed a subsequent criminal complaint charging Davis with the same DUI offense and requested that a warrant for Davis's arrest be issued. A hearing was held to determine whether the complaint established probable cause. The magistrate signed the complaint, a warrant was issued, and Davis was arrested and released on the second DUI charge. This subsequent DUI charge was thereafter assigned to a different district judge.\\nOn September 10, 2003, the district court entered a written order dismissing the original DUI charge without prejudice. Davis filed a motion to reconsider the written order on September 15. In her motion, Davis argued that the dismissal of the original charge should be with prejudice because allowing the state to refile another charge for the same conduct as the dismissed charge violated her right to due process of law. On October 14, the parties presented oral argument to the district court on Davis's motion to reconsider. However, the district court did not render its decision on Davis's motion until five months later in March 2004. In its decision, the district court found that Idaho law permits the dismissal of a felony charge without prejudice, and that no evidence had been presented which demonstrated a motive by the state to delay Davis's prosecution in a substantial fashion, to harass, or to forum-shop. The district court also found that, weighing the severity of the crime charged and Davis's lack of prejudice against the state's weak rationale for being unable to proceed, warranted dismissal without prejudice. The district court denied Davis's motion to reconsider in a memorandum decision and order on March 5 and entered an amended order and decision on March 8. Davis appeals in Docket No. 30626.\\nOn April 19, 2004, the state filed its information in the second DUI case. On April 20, the magistrate signed a commitment and Davis was released on her own recognizance. On May 4, Davis moved to stay the proceedings pending the outcome of her appeal in Docket No. 30626. On May 10, at Davis's request, the hearing to enter her plea and argue her motion was continued until May 24, at which time the district court entered a plea of not guilty and denied Davis's motion to stay. On June 1, Davis filed a motion to dismiss the second DUI charge with prejudice, on the grounds that her right to due process had been violated. The district court granted Davis's motion, finding that the state had violated Davis's right to a speedy trial, and dismissed the second DUI charge with prejudice. The state appeals in Docket No. 31000. Davis's and the state's appeals have been consolidated.\\nII.\\nANAYLSIS\\nA. Speedy Trial\\nIn Docket No. 31000, the state argues that district court erred in finding that Davis's constitutional right to a speedy trial was violated in the second DUI action. Whether there was an infringement of a defendant's right to speedy trial presents a mixed question of law and fact. State v. Clark, 135 Idaho 255, 257, 16 P.3d 931, 933 (2000). We will defer to the trial court's findings of fact if supported by substantial and competent evidence; however, we will exercise free review of the trial court's conclusions of law. Id. The state contends that the district court incorrectly applied the law to the facts of this case.\\nThe Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to a speedy trial. This right is applicable to the states through the Fourteenth Amendment. State v. Young, 136 Idaho 113, 117, 29 P.3d 949, 953 (2001). Additionally, the Idaho Constitution guarantees that a person accused of a crime has the right \\\"to a speedy and public trial.\\\" IDAHO CONST, art. I, \\u00a7 13. The speedy trial guarantee is designed to minimize the possi bility of lengthy incarceration prior to trial; to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail; and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. United States v. Loud Hawk, 474 U.S. 302, 311, 106 S.Ct. 648, 654, 88 L.Ed.2d 640, 651-52 (1986); United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696, 703-04 (1982).\\nTo determine whether a defendant's constitutional right to a speedy trial was violated under both the United States and Idaho Constitutions, we employ the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See Young, 136 Idaho at 117, 29 P.3d at 953. In Barker, the United States Supreme Court identified four factors that are weighed to determine whether there has been a constitutional violation. Those factors are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his or her right to a speedy trial; and (4) the prejudice occasioned by the delay. Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 116-17.\\n1. Length of Delay\\nThe first factor, the length of the delay, is a triggering mechanism. Young, 136 Idaho at 117, 29 P.3d at 953. Until there is some delay which is presumptively prejudicial, it is unnecessary to inquire into the other three factors. Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 116-17; Young, 136 Idaho at 117, 29 P.3d at 953. The constitutional right of the accused to a speedy trial has no application beyond the confines of a formal criminal prosecution. Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 2692-93 120 L.Ed.2d 520, 530-31 (1992). Thus, the right to a speedy trial does not apply to the period before a defendant is indicted, arrested, or otherwise formally accused. MacDonald, 456 U.S. at 6, 102 S.Ct. at 1500-01, 71 L.Ed.2d at 702 . Similarly, the right to a speedy trial has no application after the government, acting in good faith, formally dismisses charges. Id. at 7, 102 S.Ct. at 1501, 71 L.Ed.2d at 702-03. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause and not under a speedy trial analysis. Id.\\nIn the second DUI case, the district court found that the delay of over one year was presumptively prejudicial. The state asserts that whether there was a violation of the Idaho Constitution was not addressed by the district court and, therefore, no speedy trial issue based on the Idaho Constitution is before this Court on appeal. The state contends that, although Davis's right to a speedy trial under the Idaho Constitution arose upon the filing of the subsequent criminal complaint in September 2003, Davis's right to a speedy trial under the Sixth Amendment to the United States Constitution was not triggered until the filing of the subsequent information in April 2004. The state argues that, because the district court was applying only the federal constitution, it erred in considering the length of the delay between the dismissal of the original DUI charge and the filing of the information in the subsequent action.\\nIdaho courts have recognized that the state guarantee is not necessarily identical to the federal guarantee. See State v. Hobson, 99 Idaho 200, 201, 579 P.2d 697, 698 (1978); State v. Mason, 111 Idaho 660, 663, 726 P.2d 772, 775 (Ct.App.1986). The Idaho Supreme Court indicated:\\nUnder the Sixth Amendment, the period of delay is measured from the date there is \\\"a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge.\\\" United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468, 479 (1971). Under the Idaho Constitution, the period of delay is measured from the date formal charges are filed or the defendant is arrested, whichever occurs first.\\nYoung, 136 Idaho at 117, 29 P.3d at 953.\\nIn this case, the district court found that \\\"the right to a speedy trial has two separate sources: a state statutory basis, I.C. \\u00a7 19-3501 et. seq., and a constitutional basis provided by both the United States Constitution and the Idaho Constitution.\\\" In determining that Davis's right to a speedy trial was violat ed, the district court applied the Barker test, which the district court recognized is utilized when determining whether the Idaho Constitution has been violated. We conclude that the district court addressed whether Davis's right to a speedy trial under both the United States and Idaho Constitutions was violated and that, therefore, the issue of whether the Idaho Constitution was violated is properly before us on appeal. Accordingly, in determining when Davis's speedy trial right arose in this case, we apply the stricter standard found in our state constitution.\\nDavis was initially arrested in October 2002 and faced charges in the original DUI action for a period of approximately ten months. On September 5, 2003, the state filed the subsequent criminal complaint, the magistrate found probable cause, and Davis was arrested and released. Davis was an \\\"accused\\\" in the subsequent DUI action for a period of approximately eight months. Accordingly, Davis faced criminal charges for the same alleged offense for a period of eighteen months.\\nThe speedy trial analysis set forth in Barker compels courts to approach speedy trial cases on an ad hoc basis. See Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at at 116-17. The Court reasoned that, because of the imprecision of the right to a speedy trial, the length of delay that will provoke an inquiry into whether those rights have been violated is necessarily dependent upon the peculiar circumstances of the case. Id. at 530-31, 92 S.Ct. at 2192, 33 L.Ed.2d at 116-17. The nature of the case is also of import as to the period of delay that can be tolerated. State v. McNew, 131 Idaho 268, 271-73, 954 P.2d 686, 689-91 (Ct.App.1998). Delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; McNew, 131 Idaho at 272, 954 P.2d at 690.\\nThe nature of the charge Davis was facing, a DUI arising out of a traffic stop, cannot be characterized as complex, which would justify a protracted period to allow the state to prepare its case against Davis. The period of time that Davis faced criminal charges was presumptively prejudicial and necessitates our inquiry into the remaining Barker factors. See also State v. RodriquezPerez, 129 Idaho 29, 33-37, 921 P.2d 206, 210-14 (Ct.App.1996) (A delay of over thirteen months was sufficient to trigger judicial scrutiny for complex conspiracy charge.).\\n2. Reason for Delay\\nIn evaluating the reason for the delay, different weights are assigned to different reasons. Loud Hawk, 474 U.S. at 315, 106 S.Ct. at 656, 88 L.Ed.2d at 654. Our speedy trial standards recognize that pretrial delay is often both inevitable and wholly justifiable. Doggett, 505 U.S. at 656, 112 S.Ct. at 2693, 120 L.Ed.2d at 531. We attach great weight to considerations such as the state's need for time to collect witnesses, oppose pretrial motions, or locate the defendant in the event that the he or she goes into hiding. Id. A valid reason, such as a missing witness, should serve to justify appropriate delay. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. However, there is an enormous difference between being inconvenienced and being unavailable. Clark, 135 Idaho at 260, 16 P.3d at 936. True unavailability suggests an unqualified inability to attend, while inconvenience merely implies that attendance at trial would be burdensome. Id.\\nA deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the state. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. A more neutral reason, such as negligence or overcrowded courts, should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the state rather than with the defendant. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v. Wavrick, 123 Idaho 83, 89, 844 P.2d 712, 718 (Ct.App.1992). While not compelling relief in every case where a bad-faith delay would make relief virtually automatic, neither is negligence automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him or her. Doggett, 505 U.S. at 657, 112 S.Ct. at 2693-94, 120 L.Ed.2d at 531-32. Although negligence is weighed more lightly than a deliberate intent to harm the accused's defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution. Id.\\nIn Davis's original prosecution, the district court found that the reason for the delay in bringing Davis to trial was based on the convenience of the witnesses, was weak, and reflected poor communication between the state and its witnesses. However, the district court found that there was no evidence that the state held a motive to delay in a substantial fashion, harass, or forum-shop by failing to promptly prosecute Davis. We conclude that there was no justification to excuse the ten-month lapse between Davis's arrest and the dismissal of the original charge but that the reason for that delay gravitates towards negligence. Thus, although not weighed as heavily against the state as a bad-faith delay, the delay in the original prosecution is attributable to the state.\\nIn the subsequent DUI action, the explanation for the delay in bringing Davis to trial is apparent from the record. The state filed the second criminal complaint on September 5, 2003. The district court did not enter its written order dismissing the original DUI charge until September 10. Davis filed her motion to reconsider that order on September 15 and the parties presented argument on October 14. No ruling was forthcoming, however, until March 2004. In April 2004, approximately one month after the district court entered its decision denying Davis's motion to reconsider the dismissal of the original DUI charge, the state filed its information in the subsequent DUI charge. Thus, the delay between the filing of the criminal complaint and the information in the second action corresponds with the time that Davis's motion to reconsider was pending. Had the first district judge granted Davis's motion to reconsider, the state would have been barred from prosecuting the subsequent DUI charge. Accordingly, it would have been unreasonable for the state to vigorously pursue Davis's second prosecution and to put Davis and the public to the expense of preparing for trial when the disposition of Davis's motion to reconsider the without prejudice dismissal of the first case might have required that the subsequent charge be dismissed.\\nNevertheless, the district court in the second prosecution attributed the delay to the state, finding that it had failed to offer an explanation for the delay. In the absence of an affirmative explanation for a delay, such delay might be attributable to the state because the duty to bring a defendant to trial lies with the state, not the defendant. See Barker, 407 U.S. at 527, 92 S.Ct. at 2190, 33 L.Ed.2d at 114-15. However, this is not a case in which an explanation for the delay was lacking. In its memorandum decision granting Davis's motion to dismiss the subsequent charge, the district court noted that the other district judge's order denying Davis's motion to reconsider the original charge was before it and that Davis had appealed to the Supreme Court from that order. Despite being aware of the case's procedural history, the district court failed to recognize the explanation for the delay on the face of the record and, thus, erroneously attributed that delay to the state. Some of that delay also must be placed upon the first district judge's failure to rule on Davis's motion for five months. We conclude that Davis's trial on the subsequent DUI charge was delayed because Davis's motion to reconsider in the original action was pending.\\nAlthough there is no indication that Davis filed her motion for a bad-faith purpose, the delay that ensued while Davis's motion was pending must be attributed to her. The period of delay attributable to the defendant will not be weighed against the state. McNew, 131 Idaho at 272, 954 P.2d at 690. In Loud Hawk, the United States Supreme Court evaluated what weight should be attributed to delay occasioned by the defendant's interlocutory appeals. Delays from such appeals will not ordinarily weigh in favor of a defendant's speedy trial claims. Loud Hawk, 474 U.S. at 316, 106 S.Ct. at 656-57, 88 L.Ed.2d at 654-55. A defendant with a meritorious appeal would bear the heavy burden of showing an unreasonable delay caused by the prosecution in that appeal or a wholly unjustifiable delay by the appellate court. Id. A defendant, who resorts to an interlocutory appeal, normally should not be able to return to the district court and reap the reward of dismissal for failure to receive a speedy trial. Id. Having sought the aid of judicial process and realizing the deliberateness that a court employs in reaching a decision, defendants are not then able to criticize the very process which they called upon. Id. at 316-17, 106 S.Ct. at 656-57, 88 L.Ed.2d at 654-56.\\nSimilar to an interlocutory appeal, the disposition of Davis's motion to reconsider was necessary to determine whether her prosecution in the subsequent action could continue. Although Davis is not to be faulted for filing that motion, neither can she receive the dual benefit of having her motion heard and then claim that the delay that ensued while that motion was pending gave rise to a speedy trial violation necessitating the dismissal of her prosecution. Thus, the delay that occurred while Davis's motion to reconsider was pending must be attributed to her and weighs against finding a speedy trial violation.\\nOn April 19, 2004, approximately a month following the district court's denial of Davis's motion to reconsider, the state filed its information in the subsequent case. On May 4, Davis filed a motion to stay the subsequent prosecution pending the outcome of her appeal in the original action. On May 10, Davis requested that the hearing to enter her plea and argue her motion be continued. On May 24, the district court entered a not guilty plea and denied Davis's motion to stay. Davis filed a motion to dismiss the subsequent charge on June 1, and that motion was granted on June 23. Any delay in prosecuting Davis following the district court's denial of Davis's motion to reconsider the dismissal of the original charge is also attributable to Davis's actions in filing the motion to stay, requesting a continuance, and filing the motion to dismiss.\\nThe delay beyond the original trial date for the first DUI charge was caused by the state's negligence, a reason that is weighed against the state. However, Davis must bear responsibility for the delay in her subsequent prosecution and, thus, the district court erred by attributing that delay to the state. The eight-month period in which Davis faced charges in the subsequent action weighs against finding a speedy trial violation.\\n3. Assertion of Right to Speedy Trial\\nThe defendant's assertion of his or her right to a speedy trial is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. Barker, 407 U.S. at 531-32, 92 S.Ct.at 2192-93, 33 L.Ed.2d at 117-18. Failure to assert the right will make it difficult for a defendant to prove that he or she was denied a speedy trial. Id. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 117-18. In Barker, the Court indicated that the circumstances surrounding the defendant's failure to assert his right to a speedy trial demonstrated that the defendant did not want a speedy trial. The Court concluded that \\\"the record strongly suggests that while [the defendant] hoped to take advantage of the delay in which he had acquiesced, and thereby obtain a dismissal of the charges, he definitely did not want to be tried.\\\" Id. at 535, 92 S.Ct. at 2194, 33 L.Ed.2d at 119-20.\\nIn July 2003, Davis refused to waive her right to a speedy trial in the original action leading to its eventual dismissal without prejudice. However, Davis's subsequent prosecution was delayed because Davis's motion to reconsider the dismissal was pending before the district court. Davis failed to reassert her right to a speedy trial at any time in the subsequent action while that motion was pending. Additionally, after Davis's motion to reconsider was denied, Davis filed a motion to stay the second prosecution pending the outcome of her appeal in the original action. As in Barker, the record in this case demonstrates that Davis did not want a speedy trial on the subsequent charge but, instead, acquiesced to the delay in her prosecution in hopes that her motion to reconsider would be granted and the subsequent DUI charge would also be dismissed. Thus, Davis's failure to reassert her right to a speedy trial while facing the charge in second action diminished the strength to which Davis's earlier assertion of her right to a speedy trial would otherwise be entitled. The third factor does not weigh in favor of finding a speedy trial violation.\\n4. Prejudice\\nThe fourth factor in the Barker analysis is prejudice to the accused caused by the delay. The nature and extent of prejudice arising out of a delay in bringing a criminal action to trial is the most important of the Barker factors. McNew, 131 Idaho at 273, 954 P.2d at 691. Prejudice is to be assessed in light of the interests of defendants, which the right to a speedy trial is designed to protect. Young, 136 Idaho at 118, 29 P.3d at 954. Those interests are: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 117-18; Young, 136 Idaho at 118, 29 P.3d at 954. Infringement on the third interest is the most serious form of prejudice because the inability of the defendant to adequately prepare his or her case skews the fairness of the entire system. State v. Hernandez, 133 Idaho 576, 583, 990 P.2d 742, 749 (Ct.App.1999).\\nFollowing Davis's release from custody after her initial arrest, she was either released on bond or her own recognizance at all times during both criminal actions. Thus, oppressive pretrial incarceration is not at issue in this case. Neither have there been any specific allegations, which demonstrate that Davis's ability to prepare her defense has been impaired. In addressing the fourth factor, the district court in the second DUI case concluded that \\\"the length of the delay, over one year, is presumptively prejudicial.\\\" The district court found that there was no evidence that Davis faced any unusual anxiety or concern regarding the charge pending against her but that' it would be natural to expect some anxiety when facing a felony DUI charge. The district court found that the case against Davis did not involve any blood alcohol concentration testing and, thus, relied heavily on the memory of the officers. The district court found that, given the length of time that the ease had been pending and that \\\"officers who arrest drivers for suspicion of DUI arrest hundreds of drivers a year,\\\" confusion and loss of ability to recall detail were of concern. The district court then held that the state had failed to overcome the presumption of prejudice.\\nThe presumptive prejudice, which necessitated our inquiry into the Barker factors, did not place a burden on the state to prove that Davis suffered no prejudice. Impairment of an accused's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony can rarely be shown. Doggett, 505 U.S. at 655, 112 S.Ct. at 2692-93, 120 L.Ed.2d at 530-31 . Courts cannot be sure which of the parties the delay has prejudiced more severely and, therefore, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways neither party can prove or, for that matter, identify. Id. Nevertheless, such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other criteria. Id. at 655-56, 112 S.Ct. at 2692-93, 120 L.Ed.2d at 530-31. Rather, it is part of the mix of relevant facts and its importance increases with the length of the delay. Id. at 656, 112 S.Ct. at 2693, 120 L.Ed.2d at 531. To warrant granting relief, pretrial delay caused by negligence that is unaccompanied by a showing of particularized trial prejudice must have lasted longer than a delay caused by negligence that demonstrably caused such prejudice. Id. at 657, 112 S.Ct. at 2693-94, 120 L.Ed.2d at 531-32. In Doggett, the Court granted the defendant relief despite his inability to demonstrate actual prejudice, where the government's egregious failure to prosecute spanned more than eight years. The Court held that, when negligence causes a delay six times as long as generally sufficient to trigger judicial review and when the presumption of prejudice is neither extenuated or rebutted, the defendant is entitled to relief. Id. at 658, 112 S.Ct. at 2694, 120 L.Ed.2d at 532-33.\\nIn this case, the district court erred by placing a burden on the state to prove that Davis was not prejudiced by the delay in her prosecution. Instead, the presumption of prejudice occasioned by the length of the delay, the ordinary nature of the case, and Davis's anxiety are to be balanced against the reason for the delay and Davis's assertion of her right to a speedy trial.\\n5. Balancing\\nThe four foregoing factors, together with such other circumstances as may be relevant, must be weighed to determine whether there has been a violation of constitutional right to a speedy trial. Rodriquez-Perez, 129 Idaho at 37, 921 P.2d at 214. In this case, the delay in prosecuting the original DUI charge arose from neutral reasons, which must be weighed against the state. However, the delay in the subsequent DUI action occurred because Davis's motion to reconsider was pending before the district court and, thus, was in part attributable to Davis. Any additional lapse would be attributed to the five-month period the district court held Davis's motion under advisement. Additionally, the record demonstrates that although Davis asserted her right to a speedy trial when facing the original DUI charge, Davis acquiesced in the delay in prosecuting the subsequent DUI charge. Davis may have faced anxiety and concern while facing charges, but she has not demonstrated any impairment to her defense and was released on bond or her own recognizance while both DUI actions were pending.\\nAlthough the length of the delay gives rise to some presumed prejudice, that prejudice is of limited significance when weighed with the other factors in this case. Nearly half the delay was attributable to Davis, the length of the delay was not extraordinary, and there was no bad faith conduct on the part of the state. Additionally, Davis failed to reassert her right to a speedy trial while facing the subsequent DUI charge, she faced no oppressive pretrial incarceration, and has demonstrated no facts showing that her defense has been impaired. Weighing the conduct of Davis with that of the state, we conclude that Davis's constitutional right to a speedy trial was not violated here. Accordingly, the district court erred in granting Davis's motion to dismiss the subsequent DUI charge on speedy trial grounds.\\nB. Due Process\\nIn Docket No. 31000, Davis argues that, even if the district court erred in finding that her right to a speedy trial was violated, this Court should affirm the district court's order granting her motion to dismiss on due process grounds. Where a ruling in a criminal case is correct, though based upon an incorrect reason, it still may be sustained upon the proper legal theory. State v. Pierce, 107 Idaho 96, 102, 685 P.2d 837, 843 (Ct.App.1984).\\nIn Docket No. 30626, Davis argues that the district court erred in denying her motion to reconsider its order dismissing the original DUI charge without prejudice. Davis contends that the original DUI charge was dismissed for the purpose of delaying the trial longer than what is allowed by statute and to permit the state to accommodate its witnesses' vacations. Davis asserts that, allowing the state to refile the DUI charge against her under those circumstances violated her right to due process of law and, therefore, the dismissal of the original DUI charge should have been with prejudice.\\nWhere a defendant claims that his or her right to due process was violated, we defer to the trial court's findings of fact, if supported by substantial evidence. State v. Smith, 135 Idaho 712, 720, 23 P.3d 786, 794 (Ct.App.2001). However, we freely review the application of constitutional principles to those facts found. Id. In Idaho, the constitutional right to a speedy trial has been supplemented by legislation that sets specific time limits within which a criminal defendant must be brought to trial. Clark, 135 Idaho at 257, 16 P.3d at 933. Idaho Code Section 19-3501 requires a court to order that a prosecution be dismissed, unless good cause is shown, when a defendant, whose trial has not been postponed upon his or her application, is not brought to trial six months after the information is filed before the court. A dismissal granted under Section 19-3501 is not a bar to any other prosecution for the same offense if the offense is a felony. I.C. \\u00a7 19-3506.\\nIn Docket No. 30626, the state concedes that there was no good cause to justify the delay in Davis's original prosecution and that I.C. \\u00a7 19-3501 required the dismissal of the original DUI charge. Davis contends that, contrary to the provisions of Section 19-3506, the failure to demonstrate good cause to delay her trial longer than provided for by statute requires that the dismissal of the charge be with prejudice. Davis alleges that dismissing the charge without prejudice allowed the state to intentionally circumvent her right to a speedy trial. Thus, Davis contends that Section 19-3501 was enacted to enforce her constitutional right to a speedy trial and, because delaying her prosecution longer than permitted by statute infringed on that fundamental right, allowing the state to refile the DUI charge violated her right to due process of law.\\nThe constitutional right to a speedy trial is a fundamental right. State v. Avelar, 129 Idaho 700, 703, 931 P.2d 1218, 1221 (1997). Section 19-3501 expands that right in three circumstances and provides a speedy trial guarantee above and beyond that provided by the state and federal constitutions. Id. As a statutory expansion of a fundamental constitutional right, the statutory right to a speedy trial is not fundamental. Id. Davis's statutory right to a speedy trial was implicated when the state attempted to delay her trial beyond the six-month time limit without good cause. Davis received the relief provided under Section 19-3501 and the case was dismissed. The state may have elected to not refile the charge at all or only after a period of time had passed. The constitutional speedy trial guarantee does not protect any delay in refiling criminal charges after charges have been dismissed. See MacDonald, 456 U.S. at 8, 102 S.Ct. at 1502, 71 L.Ed.2d at 703-04. Further, in Barker, the United States Supreme Court recognized that many jurisdictions establish procedural rules which dictate the time in which a defendant must be brought to trial. Barker, 407 U.S. at 523, 92 S.Ct. at 2188, 33 L.Ed.2d at 112-13. Nevertheless, the Court adopted a balancing test because it found \\\"no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months.\\\" Id. Accordingly, a violation of Section 19-3501 does not necessarily implicate the constitutional right to a speedy trial. Davis's contention that dismissing the charge without prejudice following a violation of Section 19-3501 necessarily infringed on her fundamental right to a speedy trial is without merit.\\nFurther, Davis's contention that allowing the state to refile a charge alleging the same offense as the dismissed charge violated her right to due process is without support in the record. Statutes of limitation, which provide predictable, legislatively-enacted limits on prosecutorial delay, provide the primary guarantee against bringing overly stale criminal charges. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752, 758-59 (1977). Nonetheless, statutes of limitation do not fully define a defendant's right with respect to the events occurring prior to filing criminal charges. Id. The Due Process Clause has a limited role to play in protecting against oppressive delay. Id. The filing of a subsequent criminal action following dismissal of the original criminal action after preliminary proceedings is not a per se violation of due process. Stockwell v. State, 98 Idaho 797, 805, 573 P.2d 116, 124 (1977). However, the dismissal and refiling of criminal complaints by the prosecutor, when done for the purpose of harassment, delay, or forum-shopping, can violate a defendant's right to due process. State v. Bacon, 117 Idaho 679, 683, 791 P.2d 429, 433 (1990); Stockwell, 98 Idaho at 806, 573 P.2d at 125. Before a due process violation can be found, the defendant must show that the preaccusation delay caused substantial prejudice to the defendant's right to a fair trial and that the delay was a deliberate device to gain an advantage over the accused. State v. Kruse, 100 Idaho 877, 879, 606 P.2d 981, 983 (1980); State v. Burchard, 123 Idaho 382, 386, 848 P.2d 440, 444 (Ct.App.1993).\\nDavis attempts to equate the absence of good cause for the delay in her original prosecution with the type of conduct that would support a due process claim. However, grounding a due process violation on the basis of a delay that was caused by conduct that was in good faith, but that was caused by inadequate, ineffective, or insufficient personnel or management, runs counter to two basic constitutional principles. United States v. Crouch, 84 F.3d 1497, 1512-13 (5th Cir.1996). Historically, the guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. Id. at 1513. Thus, the Due Process Clause is not implicated by an official's lack of due care that causes unintended injury. Id. The court in Crouch held that, for a delay in prosecution to violate the Due Process Clause, the delay must have been deliberately undertaken by the government for the purpose of gaining a tactical advantage over the accused or for another bad-faith purpose. Id. at 1514.\\nIn Docket No. 30626, the district court found no evidence that the prosecution acted with a motive to delay in a substantial fashion, harass, or forum-shop. The district court indicated that the state's \\\"rationale of 'unavailability of witnesses' under these circumstances was at best weak, is unacceptable practice and does not give rise to what this Court would consider 'good cause.'\\\" Although the state intended to delay Davis's prosecution so that it could schedule trial for when its witnesses would not be on vacation, the state did not act with the improper motive to delay in order to gain a tactical advantage over Davis. The state's conduct in this case can be characterized as negligent or the result of poor management and falls significantly short of the type of deliberate bad-faith conduct necessary to support a due process claim.\\nFurther, even if the state's actions had risen to the level necessary to implicate due process concerns, the district court found that Davis had not been prejudiced by the delay in her prosecution. Davis has cited to no facts that suggest that the delay in prosecuting the original DUI charge caused substantial prejudice. Thus, the district court's order dismissing the original DUI charge in Docket No. 30626 without prejudice was not error.\\nIn Docket No. 31000, Davis's claim that her right to due process was violated parallels her argument that her due process right was violated in Docket No. 30626. However, as in the original action, the district court found that there was no evidence that the state delayed in order to gain a tactical advantage, harass, or forum-shop. Rather, the record demonstrates that the subsequent prosecution was delayed pending resolution of Davis's motion to reconsider. Additionally, to support a due process claim, it is incumbent upon a defendant to affirmatively show actual prejudice and the effect of that prejudice upon his or her ability to present a defense. State v. Murphy, 99 Idaho 511, 514, 584 P.2d 1236, 1239 (1978). The proof of this prejudice must be definite and not speculative. Id. The record in this case demonstrates no actual prejudice; any prejudice suffered by Davis would be speculative in nature. Accordingly, the district court's order granting Davis's motion to dismiss in Docket No. 31000 cannot be affirmed on the alternate theory that Davis's right to due process was violated in the subsequent DUI action.\\nIII.\\nCONCLUSION\\nThe district court did not err by ordering that the original DUI charge be dismissed without prejudice and, therefore, the district court's order dismissing that charge is affirmed. The district court erred when it concluded that Davis's right to a speedy trial was violated in the subsequent DUI action. We also conclude that Davis's right to due process was not violated. Therefore, the order of the district court granting Davis's motion to dismiss with prejudice is reversed.\\nJudge LANSING and Judge Pro Tem WALTERS concur.\\n. In Docket No. 31000, the six-month time limit to bring Davis to trial was renewed upon the filing of the subsequent information in April 2004. See State v. Horsley, 117 Idaho 920, 926, 792 P.2d 945, 951 (1990). The district court granted Davis's motion to dismiss in June 2004. Accordingly, Davis's statutory right to a speedy trial was not implicated in Docket No. 31000.\"}"

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+"{\"id\": \"1601641\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Emiliano Tino RIVERA, Defendant-Appellant\", \"name_abbreviation\": \"State v. Rivera\", \"decision_date\": \"1998-01-06\", \"docket_number\": \"No. 23371\", \"first_page\": \"8\", \"last_page\": \"11\", \"citations\": \"131 Idaho 8\", \"volume\": \"131\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T19:12:44.551333+00:00\", \"provenance\": \"CAP\", \"judges\": \"LANSING, C.J., and SCHWARTZMAN, J., concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Emiliano Tino RIVERA, Defendant-Appellant.\", \"head_matter\": \"951 P.2d 528\\nSTATE of Idaho, Plaintiff-Respondent, v. Emiliano Tino RIVERA, Defendant-Appellant.\\nNo. 23371.\\nCourt of Appeals of Idaho.\\nJan. 6, 1998.\\nAan E. Trimming, Ada County Public Defender, John C. DeFranco, Deputy Public Defender, Boise, for defendant-appellant.\\nAan G. Lance, Attorney General, Margaret R. Hughes, Deputy Attorney General, Boise, for plaintiff-respondent.\", \"word_count\": \"1621\", \"char_count\": \"10000\", \"text\": \"PERRY, Judge.\\nEmiliano Tino Rivera appeals from his judgment of conviction for the unlawful exercise of the functions of a peace officer. I.C. \\u00a7 18-711. We affirm.\\nI.\\nFACTS AND PROCEDURE\\nAccording to the evidence elicited at trial, a fight broke out on January 16, 1996. A group of young men attacked another young man and beat him severely. The victim's girlfriend came to his aid after the group ended its attack. Rivera was in a nearby house when he saw what had been happening. Rivera approached the victim's girlfriend, flashed a badge from the Ada County Sheriffs Department and indicated he would handle the situation. Rivera then crossed the street with his cousin, Casey Spiegel, and they both got into Rivera's vehicle.\\nAbout this time, a police officer arrived at the scene. As he approached in his patrol car, he saw the victim's girlfriend waving frantically toward Rivera's vehicle, so the officer pursued the vehicle. The officer turned on his lights and Rivera's vehicle accelerated, turned down an alley and continued accelerating. Eventually, Rivera's vehicle came to a skidding stop and hit a chain link fence. Rivera and Spiegel jumped out of the vehicle and began to run away, but came back after the officer yelled at them to stop. After receiving further information regarding the events which had taken place, the officer inquired of Rivera whether he had a badge. Rivera produced a badge from the Ada County Sheriffs Department.\\nRivera was charged with five crimes: unlawful exercise of the functions of a police officer, reckless driving, driving without obtaining a driver's license, fictitious display of a registration card or license plate and illegal consumption of alcohol. The prosecutor dismissed the last three charges before trial.\\nA jury trial was held on August 6 and 7, 1996. The jury found Rivera guilty of the unlawful exercise of the functions of a police officer, but acquitted him of the reckless driving charge. At a sentencing hearing, the district court imposed a two-year sentence, with six months fixed. The district court further ordered Rivera to pay a $1,000 fine. Rivera appeals.\\nII.\\nANALYSIS\\nRivera submits two issues on appeal. Rivera claims that the district court erred when it admitted into evidence a photograph depicting injuries to the victim of the battery. Rivera also claims that the prosecution failed to establish all of the elements of Rivera's charge under I.C. \\u00a7 18-711, and therefore, failed to prove Rivera violated the statute.\\nA. Photograph\\nAt trial, the prosecution moved to admit a photograph depicting the battered face of the young man who was beaten. Rivera's counsel objected arguing that the photograph was unfairly prejudicial. The district court overruled the objection and allowed the admission of the photograph.\\nIdaho Rule of Evidence 403 reads, in pertinent part: \\\"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice____\\\" A district court's determination that the probative value of the evidence is not outweighed by its unfair prejudice is reviewed under an abuse of discretion standard. State v. Matthews, 124 Idaho 806, 809, 864 P.2d 644, 647 (Ct.App.1993). Under that standard, we inquire: (1) whether the district court perceived the issue as one of discretion; (2) whether the district court acted within the boundaries of such discretion and consistently with any legal standards applicable to specific choices; and (3) whether the district court reached its discretion by an exercise of reason. Id.\\nIn the instant case, Rivera concedes in his appellate brief that the photograph was relevant evidence, stating \\\"the photo has evidentiary value because it tends to make Rivera's actions, flashing the badge, understandable.\\\" Rivera further concedes in his brief:\\nThe State's responsibility is to show [Rivera's] intent was to hold himself out as a police officer. The occurrence of the battery coupled with Rivera's actions may help explain his intent. The existence of the exciting event, a battery, makes it more likely his intent .was to convince [the victim's girlfriend] he really was an officer. Also his statement to [the girlfriend] \\\"I'll take care of everything\\\" may show he intended to exercise an officer's functions---- The contention bubbles forth from the form of the State's evidence to prove the battery.\\nThus, Rivera concedes that the evidence was relevant to explain the circumstances surrounding his decision to present the badge. However, Rivera contends that the prejudicial effect of the photograph substantially outweighed its probative value because it was offered to link Rivera to the battery and incite juror hostility toward Rivera. We disagree.\\nRivera was not charged with the battery of the young man. Further, the prosecution did not suggest that Rivera took part in the battery. There is no support in the record for Rivera's contention that the jury's motivation for finding Rivera guilty was retribution for the battery. It would be speculative to conclude that the jury assumed Rivera battered the young man and was somehow biased because of its assumption. Therefore, we conclude that Rivera has failed to show that the district court abused its discretion by admitting the photograph into evidence.\\nB. Elements of I.C.\\u00a7 18-711\\nRivera requests that we review the elements of I.C. \\u00a7 18-711. Statutory interpretation is a question of law over which we exercise free review. State v. Martinez, 126 Idaho 801, 803, 891 P.2d 1061, 1063 (Ct.App. 1995). Generally, \\\"[w]ords and phrases are construed according to the context and the approved usage of the language____\\\" I.C. \\u00a7 73-113. We are required to give effect to every word and clause of a statute. Martinez, 126 Idaho at 803, 891 P.2d at 1063. However, it is a well-established rule that an ambiguous criminal statute must be construed in favor of the accused. Id.\\nRivera contends that in order to violate I.C. \\u00a7 18-711 a defendant must not only unlawfully exercise the functions of a police officer, but must also bring an armed police force into the state. Idaho Code Section 18-711 provides, in part:\\n1. Any person who shall in this state unlawfully exercise or attempt t.o exercise the functions of, or hold himself out to anyone as, a deputy sheriff, marshal, policeman, constable or peace officer, or any person, whether acting in his oto behalf or an officer of the law, or as the authorized or unauthorized agent or representative of another, or of any association, corporation or company, who shall bring or cause to be brought, or aid in bringing into this state any armed or unarmed police force or detective agency or force, or any armed or unarmed body of men for the suppression of domestic violence, shall be guilty of a felony----\\n(emphasis added). Rivera contends that any person who \\\"unlawfully exercise[s] . the functions of . [a] peace officer\\\" must also \\\"bring or cause to be brought . any armed or unarmed police force\\\" to be \\\"guilty of a felony----\\\" We .disagree.\\nThe word \\\"or\\\" is defined as \\\"a function word to indicate (1) an alternative between different or unlike things, states, or actions .; (2) [a] choice between alternative things, states, or courses____\\\" WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1993). Further, the Idaho Supreme Court has concluded that the word \\\"or\\\" should be given its normal disjunctive meaning, unless that meaning would result in absurdity or produce an unreasonable result. Filer Mutual Telephone Co. v. Idaho State Tax Commission, 76 Idaho 256, 261, 281 P.2d 478, 481 (1955).\\nThe statute here is unambiguous when the word \\\"or\\\" is given its disjunctive meaning. The statute can. be violated by \\\"any person who shall . unlawfully exercise or attempt to exercise the functions of . a policeman, . or any person . who shall bring or cause to be brought . into this state any armed or unarmed police force____\\\" I.C. \\u00a7 18-711 (emphasis added). The bolded \\\"or\\\" separates the two primary manners in which this statute can be violated. Under the first part, a person can violate the statute by exercising or attempting to exercise the functions of or holding himself or herself out to anyone as one of the delineated law officials. Under the second part, the statute is violated when a person, acting on his or her own behalf, or as an officer, or as an agent for another or a company, brings or aids in bringing an armed or unarmed police force or body of men into the state.\\nThe district court was correct when it concluded that bringing police forces into the state is not a necessary element of Rivera's charge under I.C. \\u00a7 18-711. We conclude that the district court did not err when it concluded that the statute is violated when a defendant unlawfully exercises or attempts to exercise the functions of a police officer.\\nIII.\\nCONCLUSION\\nWe hold that the district court did not abuse its discretion when it admitted into evidence the photograph of the victim of the underlying battery. Further, the district court did not err when it concluded I.C. \\u00a7 18-711 is violated when a defendant unlawfully exercises the functions of a police officer. Therefore, we affirm Rivera's judgment of conviction.\\nLANSING, C.J., and SCHWARTZMAN, J., concur.\\n. According to Rivera's testimony at trial, he was just joking around. However, in pronouncing sentence, the district court indicated that, contrary to Rivera's claim, the district court believed that Rivera was attempting to help Casey Spiegel escape from the scene of the crime.\\n. Spiegel was eventually arrested for the battery of the young man.\"}"

idaho/1601725.json

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+"{\"id\": \"1601725\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. James J. JOHNSON, Defendant-Appellant\", \"name_abbreviation\": \"State v. Johnson\", \"decision_date\": \"1998-09-24\", \"docket_number\": \"No. 24332\", \"first_page\": \"808\", \"last_page\": \"811\", \"citations\": \"131 Idaho 808\", \"volume\": \"131\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T19:12:44.551333+00:00\", \"provenance\": \"CAP\", \"judges\": \"LANSING, C.J., concurs.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. James J. JOHNSON, Defendant-Appellant.\", \"head_matter\": \"964 P.2d 675\\nSTATE of Idaho, Plaintiff-Respondent, v. James J. JOHNSON, Defendant-Appellant.\\nNo. 24332.\\nCourt of Appeals of Idaho.\\nSept. 24, 1998.\\nJoseph J. Allegria, II, Boise, for Defendant-Appellant.\\nHon. Alan G. Lance, Attorney General; Kimberly A. Coster, Deputy Attorney General, Boise, for Plaintiff-Respondent. Kimberly A. Coster argued.\", \"word_count\": \"1610\", \"char_count\": \"9831\", \"text\": \"PERRY, Judge.\\nJames J. Johnson appeals from the district court's memorandum decision affirming the magistrate's order requiring Johnson to undergo testing for HIV antibodies or antigens and hepatitis B virus, pursuant to I.C. \\u00a7 39-604(4). Johnson contends that there was insufficient evidence to support the magistrate's finding that the crime charged was one where body fluid would likely be transmitted. We reverse the order requiring Johnson to undergo testing.\\nI.\\nFACTS AND PROCEDURE\\nJohnson bit a police officer on the leg. The officer was wearing duty pants with long johns underneath. Johnson was charged with battery on a police officer, I.C. \\u00a7 18-904, -915, and pledguilty.\\nThe state requested that the magistrate order Johnson to be tested for the presence of HIV and for hepatitis B, pursuant to I.C. \\u00a7 39-604(4). A hearing was held and two witnesses testified, Deputy Trauvel, the officer who was bit, and Pam Marcum, who is a forensic scientist with the Department of Law Enforcement. The magistrate found that body fluids had likely been transmitted and ordered that Johnson be tested at his own expense. The testing was stayed, however, pending appeal.\\nJohnson appealed, and the district court affirmed. Johnson further appealed to this Court, and we, in an unpublished opinion, remanded the case for a determination whether the district court had jurisdiction to hear the initial appeal. State v. Johnson, Docket No. 24332 (Ct.App. Feb. 24, 1997). The district court, on remand, determined that it had jurisdiction to hear the appeal and reinstated its original decision, affirming the magistrate's order requiring Johnson to submit to testing. Johnson has again appealed.\\nII.\\nDISCUSSION\\nA.Arguments\\nJohnson asserts that Marcum's testimony was insufficient to establish that it was likely body fluids were transmitted when Johnson bit Deputy Trauvel's leg. Johnson argues that Marcum testified at times that it was likely fluids were transmitted, but then retreated from that position.. Johnson contends that Marcum only affirmatively opined that it was possible fluid was transmitted, but never unequivocally stated that it was likely fluid was transferred.\\nThe state contends that \\\"[a]s a matter of common sense and everyday experience, the inescapable inference is that at least some saliva was likely transmitted.\\\" The state claims that expert witness testimony was not necessary. However, the state maintains, even if expert testimony was necessary, the testimony in this case was sufficient to uphold the magistrate's findings.\\nB. Standard of Review\\nThis is a sufficiency of the evidence case and our appellate review is limited in scope. Findings of fact supported by substantial and competent evidence will not be set aside on appeal. Kootenai Elec. Co-op. v. Washington Water Power Co., 127 Idaho 432, 435, 901 P.2d 1333, 1336 (1995). The magistrate's factual findings will be liberally construed in favor of the judgment, and will not be set aside unless clearly erroneous. Id., 127 Idaho at 435, 901 P.2d at 1336. For evidence to be substantial, it must be of sufficient quality that reasonable minds could reach the same conclusion. Bott v. Idaho State Bldg. Auth., 128 Idaho 580, 586, 917 P.2d 737, 743 (1996).\\nC. Authority\\nIdaho Code Section 39-604(4) reads:\\nAll persons who are charged with any crime in which body fluid as defined in this chapter has likely been transmitted to another shall be tested for the presence of HIV antibodies or antigens and for hepatitis B virus.\\n(Emphasis added). We construe a statute by giving effect to the legislative intent, which, if possible, is determined by the plain language of a statute. State v. Nunes, 131 Idaho 408, 409, 958 P.2d 34, 35 (Ct.App.1998).\\nD. Analysis\\n1. Common knowledge\\nThe state's first contention, that it is common knowledge this particular bite would transmit body fluids, is not persuasive. The state called an expert witness, who at times testified that she was not qualified to give an opinion on the matter, stating that the questions were beyond her expertise. Moreover, in this case, the bite was made over duty pants and long johns. Although the skin was broken, there was no testimony that the pants or the long johns were torn, and no tear in the pants appears in the pictures entered as exhibits. We disagree with the state's position that it is apparent to the average person that body fluids likely would have passed through the clothing. Thus, we must decide whether the expert's testimony provided sufficient evidence that it was likely that body fluids were transmitted when Johnson bit the officer's leg.\\n2. Sufficiency of expert testimony\\nMarcum stated several times during her testimony that it was possible that body fluids were transmitted when Johnson bit Deputy Trauvel's leg. However, Marcum always wavered and refused, ultimately, to affirmatively assert that it was more likely than not that body fluid was transferred. When initially asked if it was likely that the bite transmitted body fluids, the following colloquy took place:\\n[Marcum]: Your Honor, I can't answer that yes or no. Could I elaborate?\\n[Court]: Yes.\\n[Marcum]: Okay. Likely, I guess I'd have to have a definition. It's possible. Likely gives more of a preponderance that it was for sure. It's theoretically possible that body fluids were transferred. And there would be a risk of picking up Hepatitis B or AIDS from a physical trauma like this. But, likely \\u2014 I guess you're getting into percentages there. And I don't testify to percentages. I would like to prefer to say there is a small risk. It's theoretically possible that infectious agents could have been transferred.\\nMarcum went on to testify several times that it was likely the body fluids could be transmitted by a bite of this nature. However, when defense counsel and the magistrate questioned Marcum, trying to pin down exactly what she intended to say, she responded:\\nThat's right [I can't quantify whether or not body fluid was transmitted]. I don't know anything in the literature that\\u2014 where they've done studies on whether\\u2014 the likelihood of it happening. There have been pin pricks where there's been a transfer and infections caused. We're getting beyond my area of expertise here, also. So I'm getting a little uncomfortable on talking about the likelihood of it happening. I know, from my reading and talk to doc \\u2014 talking to Dr. Jessy Greenblat about this. But I don't know the percentages that you're trying to get from me. I don't know if anybody knows those.\\nMarcum also expressed that she was unsure whether the bite would likely transmit body fluid.\\n[Prosecutor]: [H]e's tried to couch in terms of being likely, meaning 51 percent or more is more likely than less likely. And the question, I think, he has for you is: Under that definition of \\\"likely\\\", at 51 percent meaning likely; is it likely that a bite that breaks the skin would pass a body fluid?\\n[Marcum]: I don't know. And I don't know anybody who knows the answer to that. I don't know.\\nLater, Marcum admitted that she was not a physician and then said \\\"I would like to get Dr. Greenblat in here to testify as the medical person. I don't know if he would give percentages either. I don't know if anybody knows that definition.\\\" As we noted earlier, no other expert witnesses testified.\\nAfter reviewing all of the evidence presented, and viewing it in the light most favorable to the prosecution, we conclude that the evidence does not establish that it was likely that body fluids were transmitted by the bite under the facts of this case. The definition of likely requires that the event \\\"make something probable and [have a] better chance of existing or occurring than not.\\\" BLACK'S LAW DICTIONARY 925 (6th ed.1990). Al though Marcum testified at times that it was likely, she failed to support those statements with meaningful reasoning or analysis. In fact, she said on different occasions that she was unqualified to respond and that nobody would know the answer. Marcum finally testified that it was likely that body fluid could be transferred, but \\\"[n]ot more likely.\\\"\\nUnder Kootenai Elec. Co-op., findings should be upheld if they are supported by substantial and competent evidence. 127 Idaho at 435, 901 P.2d at 1336. However, upon review, we hold that the evidence presented by Marcum is not substantial or competent. As noted, Marcum refused to stand by her initial statements that the bite was likely to transmit body fluids. Thus, the evidence is deficient; she never declared, without qualification, that the bite, under the facts as presented in this case, was likely to transmit bodily fluid. Therefore, the evidence presented was insufficient to uphold the magistrate's finding, and the order requiring Johnson to undergo testing is hereby reversed.\\nLANSING, C.J., concurs.\"}"

idaho/2306079.json

@@ -0,0 +1 @@
+"{\"id\": \"2306079\", \"name\": \"In the Matter of the Application of JEROME F. JACOBS for a Writ of Habeas Corpus\", \"name_abbreviation\": \"In re Jacobs\", \"decision_date\": \"1907-12-11\", \"docket_number\": \"\", \"first_page\": \"720\", \"last_page\": \"720\", \"citations\": \"13 Idaho 720\", \"volume\": \"13\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:49:07.169981+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Application of JEROME F. JACOBS for a Writ of Habeas Corpus.\", \"head_matter\": \"(December 11, 1907.)\\nIn the Matter of the Application of JEROME F. JACOBS for a Writ of Habeas Corpus.\\n[92 Pac. 1003.]\\nORIGINAL application for a writ of habeas corpus. Motion to quash writ.\\nMotion sustained.\\nPrisoner remanded to custody of officer.\\nC. C. Cavanah, J. J. Blake, J. P. Gray, Henry P. Knight, H. E. Worstell, and A. H. Conner,, for Petitioner.\\nJ. J. Guheen, Attorney General, Edwin Snow, J. H. Peterson and B. S. Crow, of the Attorney General\\u2019s office, Charles E. Koelseh, Prosecuting Attorney, Ada County, Walter H. Hanson, Prosecuting Attorney, Shoshone County, for the State, and R. P. Quarles, amicus 'curiae.\\nSubmitted upon the same briefs as were presented in State v. Dolan, ante, p. 693, 92 Pac. 995.\", \"word_count\": \"278\", \"char_count\": \"1572\", \"text\": \"Per CURIAM.\\nThe petitioner was arrested upon a warrant issued by the probate court of the county of Shoshone in the state of Idaho, for the violation of section 3 of an act approved March 12, 1907, known as the Sunday rest law (Laws 1907, p. 223), and after trial was convicted. He petitions this court for a writ of habeas corpus, alleging the unconstitutionality of the act above referred to. The state moves to quash the writ.- The same questions were argued and presented in this case, and by the same counsel, as were argued and presented in the ease of State v. Dolan, ante, p. 693, 92 Pae. 995, just decided by this court, and upon the authority of that case, and for the reasons therein stated, the motion to quash the writ of habeas corpus is sustained, and the prisoner is remanded to the custody of the sheriff of Shoshone county, Idaho.\"}"

idaho/2325691.json

@@ -0,0 +1 @@
+"{\"id\": \"2325691\", \"name\": \"H. MELGARD, Treasurer of the BOARD OF REGENTS OF THE UNIVERSITY OF IDAHO, Plaintiff, v. JOHN W. EAGLESON, Treasurer of the State of Idaho, and CLARENCE VAN DEUSEN, Auditor of the State of Idaho, Defendants\", \"name_abbreviation\": \"Melgard v. Eagleson\", \"decision_date\": \"1918-04-30\", \"docket_number\": \"\", \"first_page\": \"411\", \"last_page\": \"415\", \"citations\": \"31 Idaho 411\", \"volume\": \"31\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:29:22.664398+00:00\", \"provenance\": \"CAP\", \"judges\": \"Morgan and Rice, JJ., concur.\", \"parties\": \"H. MELGARD, Treasurer of the BOARD OF REGENTS OF THE UNIVERSITY OF IDAHO, Plaintiff, v. JOHN W. EAGLESON, Treasurer of the State of Idaho, and CLARENCE VAN DEUSEN, Auditor of the State of Idaho, Defendants.\", \"head_matter\": \"(April 30, 1918.)\\nH. MELGARD, Treasurer of the BOARD OF REGENTS OF THE UNIVERSITY OF IDAHO, Plaintiff, v. JOHN W. EAGLESON, Treasurer of the State of Idaho, and CLARENCE VAN DEUSEN, Auditor of the State of Idaho, Defendants.\\n[172 Pac. 655.]\\nAgricultural College Fund \\u2014 Ministerial Duty of State Treasurer \\u2014State Auditor \\u2014 Void Acts of State Officers.\\n1. By^ certain acts of Congress $50,000 is appropriated annually for the use and benefit of agricultural and mechanical colleges in each state and territory, the beneficiary institutions to be selected by the several states and territories. These acts provide that this sum shall be paid by the secretary of the treasury of the United States to the state treasurer, who shall, upon the order of the trustees of the college, immediately pay it over to the treasurers of the respective colleges or other institutions entitled to receive it. (U. S. Comp. Stats. 1916, sec. 8872.) This money cannot properly be placed, when received by the state treasurer, in the general fund of the state, as its exclusive supervision is vested in the trustees of the institution designated by the state legislature as the beneficiary entitled to receive it.\\n2. The state treasurer, to whom the fund is transmitted by the secretary of the treasury, is charged with the ministerial duty of immediately paying it over to the treasurer of the board of regents of the University of Idaho, upon its order, and the state auditor has no authority over, and no duty to perform with respeet to it.\\n3. The acts of the defendants, state auditor and state treasurer, in attempting to place the money in the general fund of the state treasury, by making entries upon their books to that end, were mere nullities and did not affect its legal status.\\nOriginal proceeding to procure a Writ of Mandate,\\nWrit granted.\\nWm, Healy and J. R. Sinead, for Plaintiff.\\nThe fund in question is special and impressed with a trust, and neither it nor its income is a part of the general fund of the state. (Yale College v. Sanger, 62 Fed. 177.)\\nThe control of the fund is vested in the supervisors of the institution and not in the legislature, which may not interfere in any way with the fund granted by Congress to a beneficiary which has been designated. (State Board of Agriculture v. Auditor General, 180 Mich. 349, 147 N. W. 529.)\\nThe state treasurer could not change this trust fund into part of the general fund of the state by a mere bookkeeping transaction, and the state auditor has no function whatever to perform in the handling of the fund. (Blaine County v. Fuld, ante, p. 358, 171 Pac. 1138.)\\nT. A. Walters, Attorney General, and A. C. Hindman and J. P. Pope, Assistant Attorneys General, for Defendants, cite no authorities.\", \"word_count\": \"1468\", \"char_count\": \"8335\", \"text\": \"BUDGE, C. J.\\nThis is an original proceeding for a writ of mandate to compel the defendants to pay over to the plaintiff the sum of $50,000 for the use and benefit of the University of Idaho and to compel them to correct the boobs and records of their respective offices by canceling thereon all entries showing the aforesaid sum to be a part of the general fund of the state of Idaho, and for general relief. The petition alleges in substance that the fund in question was paid by the United States to the defendant Eagleson, as state treasurer, on July 10, 1917, under the provisions of the act of Congress August 30, 1890, 26 Stat. 417, as amended by the act of Congress March 4, 1907, 34 Stat. 1256, providing for the appropriation from the public treasury of the United States of the sum of $50,000 annually for the more complete endowment and maintenance of each of certain designated classes of colleges, of which the University of Idaho is one. That thereafter the board of regents duly made an order upon the treasurer that this sum be paid .over to plaintiff in his official capacity. That on July 10, 1917, the defendant Yan Deusen, as auditor, issued his certificate directing that the sum be deposited in the general fund; that the defendant state treasurer issued his official receipt for the sum and purported to deposit it in the general fund, and that, the state auditor and treasurer respectively have carried the sum on their books as part of the general fund. That they have refused to pay the sum to the plaintiff or to correct their books in this respect and still carry the sum as a part of the general fund. That unless the fund be turned over to plaintiff as provided by the acts of Congress, the University will be unable to obtain any use or benefit of the same to its great and irreparable injury and detriment, and that plaintiff will be unable to report to the Secretary of Agriculture and the Secretary of the Interior a detailed statement of the disbursements of said- sum as he is required to do by the acts of Congress.\\nDefendants have demurred to the petition on the grounds:\\n1st. That it does not state facts sufficient to entitle the plaintiff to the relief prayed;\\n2d. That it appears from the petition that the sum in question has been deposited in the general fund and that to grant the relief prayed for would be a violation of sec. 13, art. 7 of the constitution of the state of Idaho, which provides that no money shall be drawn from the treasury but in pursuance of appropriations made by law, and that it does not appear from the petition that any appropriation has been made therefor.\\n3d. That the petitioner has a plain, speedy and adequate remedy at law, in that if defendant Eagleson is withholding funds properly belonging to petitioner the same can be recovered in an action at law.\\nBy three acts of Congress, namely: Act of July 2, 1862, U. S. Compiled Statutes 1916, sec. 8870; act of August 30, 1890, Id., sees. 8871 to 8876, inclusive; act of March'4, 1907, Id., sec. 8877, the sum of $50,000 is appropriated for the use and benefit in each state and territory of agricultural and mechanical colleges, the beneficiary institutions to be selected by the several states. These acts provide that this sum shall be paid by the Secretary of the Treasury of the United States to the state treasurer \\\" . . . . who shall, upon the order of the trustees of the college, . immediately pay over said sums to the treasurers of the respective colleges or other institutions. entitled to receive the same, and such treasurers shall be required to report to the Secretary of Agriculture and to the Secretary of the Interior, on or before the first day of September of each year, a detailed statement of the amount so received and of its disbursement.\\\" (Act of August 30, 1890, c. 841, sec. 2; U. S. Compiled Stats. 1916, sec. 8872.)\\nOur state legislature by IT. B. 192, Sess. Laws 1909, p. 38, approved the action of the board of regents in establishing and maintaining a college of agriculture in accordance with the foregoing acts of Congress.\\nIt is apparent that the fund in question cannot properly be placed in the general fund of the state of Idaho. (Yale College v. Sanger, 62 Fed. 177.) The exclusive supervision of the fund is vested by the act of Congress in the trustees of the institution designated by the state legislature as the beneficiary entitled to receive the fund. (State Board of Agriculture v. Auditor General, 180 Mich. 349, 147 N. W. 529.) Under the acts of Congress, the state treasurer, to whom the fund is transmitted by the Secretary of the treasury, has, with reference to this fund, a mere clerical or ministerial duty to perform, that is, to pay over the fund immediately to the treasurer of the board of trustees, in this case the board of regents, upon their order. The acts of the defendants, state treasurer and state auditor, in this instance, of placing this fund in the general fund by making appropriate entries upon their books to that end were mere nullities. (Blaine County v. Fuld, ante, p. 358, 171 Pac. 1138.) Under the acts of Congress in question the state auditor has no duty whatever to perform with respect to this fund and no authority over it. It is therefore apparent that the de fendant, state treasurer, has but one duty to perform in the premises, and that is to pay over the sum in controversy immediately to the plaintiff, as treasurer of the board of *regents. The writ of mandate should issue directing him to do so, and it is so ordered. No costs awarded.\\nMorgan and Rice, JJ., concur.\"}"

idaho/2328104.json

@@ -0,0 +1 @@
+"{\"id\": \"2328104\", \"name\": \"SAM CUROE, Respondent, v. SPOKANE AND INLAND EMPIRE RAILROAD COMPANY, a Corporation, Appellant\", \"name_abbreviation\": \"Curoe v. Spokane & Inland Empire Railroad\", \"decision_date\": \"1920-01-10\", \"docket_number\": \"\", \"first_page\": \"643\", \"last_page\": \"650\", \"citations\": \"32 Idaho 643\", \"volume\": \"32\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T19:00:13.608535+00:00\", \"provenance\": \"CAP\", \"judges\": \"Rice, J., concurs.\", \"parties\": \"SAM CUROE, Respondent, v. SPOKANE AND INLAND EMPIRE RAILROAD COMPANY, a Corporation, Appellant.\", \"head_matter\": \"(January 10, 1920.)\\nSAM CUROE, Respondent, v. SPOKANE AND INLAND EMPIRE RAILROAD COMPANY, a Corporation, Appellant.\\n[186 Pac. 1101.]\\nStatutory Construction \\u2014 Constitutional Law \\u2014 Title op Act\\u2014 Railroads \\u2014 Fire Spreading prom RigSt op Way \\u2014 Negligence.\\n1. The rule which permits reading the title of an act in aid of statutory construction applies only in cases where the legislative meaning .is left in doubt by failure to clearly express it in the law.\\n[As to the effect of the invalidity of title to statutes, see note in Ann. Cas. 1916D, 26.]\\n2. After the codification, by the legislature, of the laws of the state, it is too late to .question the validity of one of them on the ground that the title in the bill by which it was originally enaeted was insufficient to conform to art'. 3, sec. 16, of the constitution.\\n3. A railroad company which, in violation of the law, permit\\u00bb combustible material, not necessary for the maintenance or operation of the road, to accumulate on its right of way and to'remain therein sufficient quantity to communicate fire, when started therein, to contiguous property of another, which is injured or destroyed thereby, is guilty of actionable negligence.\\n[As to the liability of railroad companies for fires, see notes in 38 Am. Dec. 70; 78 Am. Dec. 185; 6 Am. Rep. 597.]\\nAPPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.\\nAction for damages. Judgment for plaintiff.\\nAffirmed.\\nEzra R. Whitla and Graves, Kizer & Graves, for Appellant.\\nThe court will construe the statute in the light of the fact that it was enacted for the preservation of .timber land and that the legislative body could not. have had in contemplation any law applicable generally to railroads. {Rural High School v. School District, 32 Ida. 325, 182 Pae. 859.)\\n\\u25a0\\u201cThe constitution has made the title the conclusive index to the legislative intent as to what shall have operation.\\u201d {Gerding v. Board of County Cornmrs., 13 Ida. 444, 90 Pac. 357; State v. Butterfield Live Stock Co., 17 Ida. 441, 134 Am. St. 263, 106 Pac. 455, 26 L. R. A., N. S., 1224; Hailey v. State Historical Soc. {Huston), 25 Ida. 165, 136 Pac. 212.)\\n\\u201cIt is yiot per se negligence for railway companies to permit combustible materials, such as stalks, grass[ grain or stubble, to grow or remain on its right of way in considerable quantities.\\u201d {Union Pac. By. Co. v. Gilland, 4 Wyo. 395, 34 Pac. 953; St. Louis & S. P. By. Co. v. Jones, 59 Ark. 105, 26 S. W. 5.95.)\\nBlack & Wemette, for Respondent.\\nWhere the act is clear upon its face, and when standing alone is fairly susceptible of but one construction, that construction must be given to it. The prior acts may be resorted to to solve, but not to create, an ambiguity. (Lewis\\u2019 Sutherland on Statutory Construction, 2d ed., sec. 450.)\\nWhere the language of the section clearly conveys the intention of the legislature, and no doubt arises as to such intention, the court is not required to resort to the title to aseer tain such intention. \\u2022 (State v. Paulsen, 21 Ida. 686, 123 Pac. 588.)\\nSee. 1610, Rev. Codes, is broad, and must be held to apply to all railroads, no matter where they are located as to being near or distant from forests or timber lands.\\nHere we have a 'statute making it negligence for the company to have its right of way contain combustible material; that is the gist of the negligence of the defendant in this case, and it must be held that any fire started in the operation or as a result of the operation of appellant\\u2019s trains must make appellant liable for the resulting damage. (Terre Haute & L. B. Go. v. Walsh, 11 Ind. App. 13, 38 N. E. 534; Chicago & E. I. B. Co. v. Goyette, 133 111. 21, 24 N. E. 549, 550; Jones v. Michigan Central B. Co., 59 Mich. 437, 26 N. W. 662, 664.)\\nA leading ease where a statutory provision similar to the Idaho statute is involved is Diamond v. Northern Pac. By. Co., 6 Mont. 580, 13 Pac. 367, 370.\", \"word_count\": \"2740\", \"char_count\": \"15451\", \"text\": \"MORGAN, C. J.\\nOn July 23, 1917, fire started in dry weeds and grass on appellant's right of way and spread to respondent's adjoining land and consumed grass in his pasture and wheat in his field. Immediately before the fire one of appellant's trains, propelled by electricity, passed the point where it occurred. The evidence does not disclose what caused the fire, and no negligence is charged against appellant other than its failure to keep its right of way free from the combustible material by means of which it was communicated to respondent's property.\\nRespondent relies upon C. S., secs. 2948 and 8346, and the trial court appears to have adopted the theory that these sections are applicable to the case. They contain the following provisions:\\nSec. 2948. \\\"Every person, firm or corporation operating a railroad shall keep the ground for 50 feet on each side of the center of the track, or such portion thereof as may be owned or controlled by such person, firm or corporation, clear of combustible materials, except ties and other materials necessary for the maintenance and operation of the road, from June 1 to October 1 of each year.....Any person, firm or corporation violating any provisions of this section shall be guilty of a misdemeanor and shall be subjected to a penalty of not more than $100 for each offense.\\nSec. 8346. \\u2022\\\".... any railway company which shall permit any fire to spread from its right of way to the adjoining lands, is guilty of a misdemeanor. ' '\\nAppellant insists that sec. 2948 applies only .to railroads in timbered lands and that the title of the bill, when it was first, enacted in 1907, shows it to have been the legislative intent to thereby protect the forests; that to construe it otherwise would be to make it violative of the constitution, art. 3, sec. 16, which provides: \\\"Every act shall embrace but one subject, and matters properly connected therewith, Which subject shall be expressed in the title; . \\\"\\nThe rule which permits reading the title of an act in aid of statutory construction applies only in eases where the legislative meaning is left in doubt by failure to clearly and completely express it in the law. (State v. Paulsen, 21 Ida. 686, 123 Pac. 588.) It is said in Lewis' Sutherland on Statutory Construction, 2d ed., vol. 2, sec. 450, p. 856, quoting from Hamilton v. Rathbone, 175 U. S. 414, 20 Sup. Ct. 155, 44 L. ed. 219, see, also, Rose's U. S. Notes: \\\"The whole doctrine applicable to the subject may be summed up in the single observation that prior acts may be resorted to, to solve, but not to create, an ambiguity. ' ' The 'meaning of the legislature is so clearly expressed in the section under consideration as to prohibit search for it elsewhere.\\nThe act of 1907 was incorporated in the Revised Codes of 1909 as sec. 1610, was amended by the 1909 legislature and, as amended, became sec. 2948, supra. This court, in Anderson v. Great Northern Ry. Co., 25 Ida. 433, Ann. Cas. 1916C, 191, 138 Pac. 127, held that after the codification, by the legislature, of the laws of the state, it is too late to question the validity of one of them on the ground that the title in the bill by which it was originally enacted was insufficient to conform to the above-mentioned section of the constitution.\\nThe title to the act of 1909, in addition to referring to the repeal of see. 1612 and the amendment of other sections of the Eevised Codes, including 1610, indicates the purpose of the act to be the prevention of forest fires. The regulation of railroads to the end that fires be prevented and the prevention of fires in forested areas constitute but a single subject, and matters properly connected therewith, within the meaning of art. 3, see. 16, above quoted. If the 1909 act should be held to be obnoxious to the constitution, in that it embraces more than one subject, it would avail appellant nothing, because, in that event, the act would be void and the section would remain as found in the Eevised Codes, which differs from the amended law only in that what is therein referred to as the \\\"closed season\\\" is made to commence May 1st instead of June 1st of each year.\\nIt is contended respondent should not be permitted to recover damages for the loss of his grass and grain because of his failure to show appellant was responsible for starting the fire.\\nIt is clear the legislature intended by sees. 2948 and 8346 to require owners of railroads to prevent fire from spreading from their rights of way on to contiguous lands. As a means to that end the provision first quoted was placed in the former section. Appellant's liability arises from a violation of its duty in that it permitted an accumulation of combustible material to remain on its right of way in sufficient quantity, during the season when it was unlawful to do so, to communicate fire, when started therein, to the property of respondent. This was a violation of law enacted for the protection of respondent, and others like situated, and constituted negligence resulting in damage for which this action is maintainable. (1 C. J. 954 and 957; 20 R. C. L. 38; Denton v. Missouri, K. & T. Ry. Co., 90 Kan. 51, Ann. Cas. 1915B, 639, 133 Pac. 558, 47 L. R. A., N. S., 820; Evers v. Davis, 86 N. J. L. 196, 90 Atl. 677; Cheek v. Prudential Ins. Co. (Mo.), 192 S. W. 387, L. R. A. 1918A, 166; Klatt v. N. C. Foster Lumber Co., 97 Wis. 641, 73 N. W. 563.)\\nThe judgment is affirmed. Costs are awarded to respondent.\\nRice, J., concurs.\"}"

idaho/2334831.json

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+"{\"id\": \"2334831\", \"name\": \"A. J. HARKER, Respondent, v. LESTER C. SEAWELL, Appellant\", \"name_abbreviation\": \"Harker v. Seawell\", \"decision_date\": \"1922-04-29\", \"docket_number\": \"\", \"first_page\": \"457\", \"last_page\": \"458\", \"citations\": \"35 Idaho 457\", \"volume\": \"35\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:25:30.334526+00:00\", \"provenance\": \"CAP\", \"judges\": \"Rice, C. J., and McCarthy, J., concur.\", \"parties\": \"A. J. HARKER, Respondent, v. LESTER C. SEAWELL, Appellant.\", \"head_matter\": \"(April 29, 1922.)\\nA. J. HARKER, Respondent, v. LESTER C. SEAWELL, Appellant.\\n[206 Pac. 812.]\\nTrefass \\u2014 Injury to Growing Grass \\u2014 Action\\u2014Party in Possession Dnder Claim of Eight \\u2014 Verdict not Supported by Evidence.\\n1. As against a mere tort-feasor, actual possession of land, under a claim of right, is sufficient to maintain an aetion of trespass for injury to growing grass and crops.\\n2. On appeal from a judgment, if the evidence is insufficient to support the verdiet, judgment will be reversed.\\nPublisher\\u2019s Note.\\n1. Possession of land under color of title as giving one right to maintain action against mere trespasser, see notes in 4 Ann. Cas. 190; Ann. Cas. 1915D, 37; 30 L. E. A., N. S., 243.\\nAPPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. B. S. Var\\u00edan, Judge.\\nAetion for trespass. From judgment for plaintiff, defendant appeals.\\nReversed.\\nO. M. Van Duyn and Frank T. Wyman, for Appellant. The measure of damages for trespass upon plaintiff\\u2019s close by livestock that ate the grass and pasturage is the value of the grass and pasturage at the time of the trespass. (17 C. J. 893; Risse v. Collins, 12 Ida. 689, 87 Pae. 1006; Coa> v. Creme Creek Sheep Co., 34 Ida. 327, 200 Pae. 678.)\\nF. H. Lyons and E. R. Coulter, for Respondent, file no brief.\", \"word_count\": \"433\", \"char_count\": \"2512\", \"text\": \"DUNN, J.\\nThis action was brought by respondent to recover damages resulting from a trespass by appellant in grazing certain sheep on the land of respondent and to ob tain an injunction restraining appellant from further trespass.\\nAlthough shown to be in actual possession of the lands in controversy, respondent failed to show that, as to all of the land in controversy, he was either the owner or entitled to the possession thereof. Appellant \\u00e9ontends that there can be no right of recovery unless respondent shbws either ownership or right of possession of the land. In this appellant is in error. He is a trespasser and as against him simple possession under a claim of right is sufficient to support the action. In the case of Sanson v. Seawell, ante, p. 92, 204 Pac. 660, this court said: \\\"As against a mere tort-feasor, actual possession of land, under a claim of right is sufficient to maintain trespass,\\\" citing numerous cases.\\nWe have' examined the record with care and while we find respondent to have suffered damage at the hands of appellant, the evidence is insufficient to support the verdict for $600. The judgment is therefore reversed, with costs to appellant.\\nRice, C. J., and McCarthy, J., concur.\"}"

idaho/2338616.json

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+"{\"id\": \"2338616\", \"name\": \"JOHN URIOLA, Appellant, v. TWIN FALLS BANK & TRUST COMPANY, a Corporation, Respondent\", \"name_abbreviation\": \"Uriola v. Twin Falls Bank & Trust Co.\", \"decision_date\": \"1923-06-02\", \"docket_number\": \"\", \"first_page\": \"332\", \"last_page\": \"348\", \"citations\": \"37 Idaho 332\", \"volume\": \"37\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T23:49:55.443127+00:00\", \"provenance\": \"CAP\", \"judges\": \"McCarthy and Wm. E. Lee, JJ., concur.\", \"parties\": \"JOHN URIOLA, Appellant, v. TWIN FALLS BANK & TRUST COMPANY, a Corporation, Respondent.\", \"head_matter\": \"(June 2, 1923.)\\nJOHN URIOLA, Appellant, v. TWIN FALLS BANK & TRUST COMPANY, a Corporation, Respondent.\\n[215 Pac. 1080.]\\nNegotiable Instruments \\u2014 Intent of Drawer \\u2014 Liability of Indorser\\u2014 Innocent Holders \\u2014- Impostor as Payee \\u2014 Negligence oe Drawer \\u2014 Liability.\\n1. Where a party purchases a draft from a bank made payable to a designated payee, the intent of the purchaser as to the payee becomes the intent of the bank.\\n0. A bank is not liable for the payment of a draft on a forged indorsement, where the person committing the forgery and receiving the money was in fact the person to whom the drawer delivered the instrument, whom he believed to be the payee named, and who was the individual intended to receive the same.\\nPublisher\\u2019s Note.\\n2. Who must bear loss when check or bill is issued or indorsed to impostor, see notes 22 A. L. R. 1228; 50 L. R. A. 75; 17 1. R. A., N. S.. 514: 38 L. R. A.. N. S.. 1111.\\n3. Where the drawer of a cheek delivers it, for a consideration which turns out to be fraudulent, to an impostor under the belief that he is the person whose name he has assumed and to whose order the cheek is made payable, a bona fide holder for a valuable consideration who paid the imposter upon his indorsement of the payee\\u2019s name is entitled to recover from the drawer; it appearing that the person to whom the check was delivered was the very person whom the drawer intended should indorse it and receive the money, and that the drawer made no inquiry concerning the identity or credit of the named payee, who was unknown to the drawer.\\nAPPEAL from tbe District Court of the Eleventh Judicial District, for Twin Falls County. Hon. 'Win. A. Babcock, Judge.\\nAction by plaintiff to recover money charged against his account by defendant bank. From judgment for defendant, plaintiff appeals.\\nReversed and remanded, with instructions.\\nE. M. Wolfe and J. F. Martin, for Appellant.\\nWhen a draft is made payable, and delivered to an impostor by the drawer of such draft, and the draft comes into the hands of an innocent purchaser for value and without notice, the drawer must stand the loss as between it and the innocent purchaser. (Hoffman v. American Exchange Nat. Bank, 2 Neb. (Unof.) 217, 96 N. W. 112; Montgomery Garage Co. v. Manufacturers\\u2019 Liability Co., 94 N. J. L. 152, 109 Atl. 296, 22 A. L. R. 1224, and cases cited; Robertson v. Coleman, 141 Mass. 231, 55 Am. Rep. 471, 4 N. E. 619; McHenry v. Old Citizens\\u2019 Nat. Bank, 85 Ohio St. 203, 97 N. E. 395, 38 L. R. A., N. S., 1111; see notes, 50 L. R. A. 75; 17 L. R. A., N. S., 514; 38 L. R. A., N. S., 1111; Bran-non\\u2019s Negotiable Instrument Law, 3d ed., pp. 87-89, 468-471, 498-504.),\\nThe indorsement of an impostor upon a cheek passes good title to the check to an innocent purchaser. (Robertson v. Coleman, supra; Land Title & Trust Co. u. Northwestern Nat. Bank, 196 Pa. St. 230, 79 Am. St. 717, 46 Atl. 420, 50 L. B. A. 75, and eases cited.)\\nFrank L. Stephan, for Respondent.\\nRespondent bank had the right as a matter of law to cancel the credit and charge back to the account of the appellant the amount of its loss. (3 R. C. L. 522; 7 C. J. 633; Bailie v. Augusta Savings Bank, 95 G-a. 277, 51 Am. St. 74, 21 S. E. 717; Blake v. Hamilton Dime Sav. Bank Co., 79 Ohio St. 189, 128 Am. St. 684, 16 Ann. Cas. 210, 87 N. E. 73, 20 L. R. A., N. S., 290; National Gold Bank & Trust Co. v. McDonald, 51 Cal. 64, 21 Am. Rep. 697; Ocean Park Bank v. Rogers, 6 Cal. App. 678, 92 Pac. 879; Lyon County State Bank v. Schaffer, 102 Kan. 868, 171 Pac. 1159; Belsheim v. First Nat. Bank of White Salmon, 77 Wash. 552, 137 Pac. 1055.)\\nAppellant\\u2019s right to recover the credit given him by respondent bank is defeated by the forged indorsement of the payee\\u2019s name. (C. S., sec. 5890; 7 C. J. 636; 5 R. C. L. 564; Crawford on Negotiable Instruments, p. 57; First Nat. Bank of Chicago v. Northwestern Nat. Bank, 152 111. 276, 43 Am. St. 247, 38 N. E. 739, 26 L. R. A. 289; People\\u2019s Bank v. Franklin Bank, 88 Tenn. 299, 17 Am. St. 884, 12 S. W. 716, 6 L. R. A. 724; 3 R. C. L. 1296.)\\nAs between appellant and respondent, appellant was the less diligent and should bear the loss resulting from his negligence. (Heim v. Neubert, 48 Wash. 587, 94 Pac. 104; People\\u2019s Bank v. Franklin Bank, supra.)\\nA forged indorsement is wholly inoperative and does not convey title to the instrument. (Tolman v. American Nat. Bank, 22 R. I. 462, 84 Am. St. 850, 48 Atl. 480, 52 L. R. A. 877; Shipman v. Bank of State of New York, 126 N. Y. 318, 22 Am. St. 821, 27 N. E. 371, 12 L. R. A. 791; Armstrong v. Pomeroy Nat. Bank, 46 Ohio St. 512; Jordan Marsh Co. v. Shawmut Nat. Bank, 201 Mass. 397, 87 N. E. 740, 22 L. R. A., N. S., 250; First Nat. Bank of Chicago v. Pease, 168 111. 40, 48 N. E. 160; Seaboard Nat. Bank v. National Bank of America, 193 N. Y. 26, 85 N. E. 829, 22 L. R. A., N. S., 499.)\", \"word_count\": \"6031\", \"char_count\": \"32886\", \"text\": \"GIVENS, Commissioner.\\n\\u2014 This case was submitted upon stipulated facts found in the findings of fact and conclusions of law, as follows:\\n\\\"That prior to the 20th day of August, 1920, J. Kawai stole from U. Watanabe, of Shoshone, Idaho, a certain time certificate of deposit, of the approximate value of $500. That thereafter the said J. Kawai assumed the name of U. Watanabe and held himself out as the owner of said certificate of deposit. That under such assumed name, he rented a room at the Plaintiff's rooming house, registering as U. Watanabe, and was known to the plaintiff by said name. That he rented a post-office box, number 298, at the Twin Falls Post Office under the said name of U. Watanabe, and received his mail through said post-office box under said name.\\n\\\"That thereafter the said J. Kawai wrote one Henry Betsun, of Salt Lake City, Utah, who was engaged in the business of loaning money, enclosing said certificate of deposit which he had stolen from U. Watanabe, and requesting a loan thereon, and signed the same 'U. Watanabe,' and sending for the return address the post office box number 298, which he had rented under* said name at the Twin Falls Post Office. That the said Henry Betsun, answering said letter, addressing the same to the address as directed, as stated above, returned the said certificate of deposit, and also enclosed a blank application for a loan to be filled out by the applicant. That J. Kawai filled out said application and signed same 'U. Watanabe,' and returned it to the said Henry Betsun, in Salt Lake City, together with the said certificate of deposit; and upon receipt thereof the said Henry Betsun purchased from the Utah State National Bank, of Salt Lake City, Utah, a Cashier's check made payable to U. Watanabe, for the sum of $400, a copy of which is attached to defendant's answer herein, and forwarded the same to the said J. Kawai by mail, addressed to U. Watanabe, in care of the said post office box rented by the said J. Kawai under the name of U. Watanabe.\\n\\\"That after the said J. Kawai received the said cashier's check he endorsed thereon the name of U. Watanabe and delivered the same to the plaintiff. That thereafter the plaintiff endorsed said cashier's check and deposited the same with the defendant bank; that the same was paid on the 25th day of August, 1920, by the Utah State National Bank, of Salt Lake City, the maker thereof. That it was later discovered that the said J. Kawai was not the owner of said time certificate of deposit, but that he had stolen the same; whereupon, on the 24th day of September, 1920, the defendant bank charged the plaintiff's account with $400, without his consent and against his will. That the said bank immediately notified the said plaintiff of such charge.\\n\\\"That neither the plaintiff nor the defendant had any notice or knowledge of any of the wrongful acts of the said J. Kawai, and that the plaintiff, Uriola, was an innocent purchaser of the said cashier's check.....\\n\\\"That the said J. Kawai was charged with the crime of forgery, and more particularly, with forging the name of U. Watanabe upon the back of the said cashier's cheek, and was convicted of the said crime.\\\"\\nPlaintiff, appellant, sued the bank, respondent, for the-$400 thus charged against his account. While it might appear from the stipulation that- the issues were '-ctween appellant and respondent only, two innocent holders, nevertheless we must go further in order to find the facts upon which the bank based its right to charge the $400 against appellant's account.\\nThe bank must have paid the $400 to the Utah State National Bank, the maker of the cashier's cheek in question, and the Salt Lake Bank must have in turn reimbursed Betsun for the $400 paid by him to the Salt Lake bank in the purchase of said check, before the respondent would have been in a position to demand tbe return of the money paid to appellant. If respondent has not thus repaid Betsun, it has sustained no loss and had no right to charge the $400 to appellant, and hence has no defense at all.\\nThe return of the money through these channels to Betsun would be based upon the conclusion that the indorsement by Kawai, impersonating Watanabe, on the cashier's check sent Kawai by Betsun, payable to U. Watanabe, and cashed by appellant for Kawai, was a forgery. Unless Betsun had a valid claim against the Utah State National Bank for the return of his money, the Salt Lake bank had no valid claim against the Twin Falls bank, and the Twin Falls bank had no right to make a charge therefor against appellant's account. The rights of Betsun and Uriola are the determinative factors.\\n\\\"Generally a bank is not bound to know the signature of the indorser of a cheek, and, if it pays a check on a forged indorsement, it can recover the money of the party to whom it was paid, if it proceeds promptly on discovery of the fraud. This is upon the principle that the indorsement of a check is an implied warranty of the genuineness of the previous indorsements. But, in order that a bank may recover, it must appear that it has sustained a loss. If it can charge the payment to the account of the depositor, it has lost nothing, and has no cause of action. The question is, then, the same, whether we consider the check as having been drawn by an ordinary depositor in the trust company, or as having been drawn, as it was, by the real estate department of the company, on the banking department. While, as between the bank and the trust company, as a banker the former is bound by its implied warranty of the indorsement, still there is no cause of action unless the payment of the check was not, as against the drawer of the cheek, a good payment. The reason of the rule that when a bank pays a depositor's check on a forged indorsement, or a raised check, it is held to have paid it out of its own funds, and cannot charge the payment to the depositor's account, is that there is an implied agreement by the bank with its depositor, that it will not disburse the money stand ing to his credit, except on his order. The rule applies, where a check has been lost or stolen and the payee's name has afterwards been forged; but it does not protect a depositor who is in fault, as in intrusting a check to one who he has reason to suppose will make a fraudulent use of it, or in so carelessly filling up a cheek that it may readily be altered, or in issuing a cheek to a fictitious person. It is confined to cases in which the depositor has done nothing to increase the risk of the bank. It. should not apply when the check is issued to one whom the drawer intends to designate as the payee; First, because in such a case the risk is not the ordinary risk assumed by the bank in its implied contract with its depositor, but a largely increased risk, as it follows that a check thus fraudulently obtained will be fraudulently used. The bank is deprived of .the protection afforded by the fact that a tona fide holder of a check will exercise care to preserve it from loss or theft, which are the ordinary risks. There is thrown on the bank the risk of antecedent fraud practiced upon the drawer of the check, of which it has neither knowledge nor means of knowledge; secondly, because in such a case the intention with which the drawer issued the cheek has been carried out; the person has been paid to whom he intended payment should be made; there has been no mistake of fact, except the mistake which he made when he issued the check, and the loss is due, not to the bank's error in failing to carry out his intention, but primarily to his own error, into which he was led by the deception previously practiced upon him.\\\" (Land Title & Trust Co. v. Northwestern Nat. Bank, 196 Pa. St. 230, 79 Am. St. 717, 46 Atl. 420, 50 L. R. A. 75, at 79, 80, and eases cited in the notes in the last two citations.)\\nThe real issue, then, is upon the following question, namely: Where an impostor assumed the name of another person (Kawai assuming the name of Watanabe) and thereby induces a third party (Betsun) to believe that he is the person whose name is assumed, and acting on such belief, such third person (Betsun) purchases a draft designating the payee by the name assumed by the impostor (Watanabe, assumed by Kawai) and delivers it to such impostor (Kawai, by mail from Salt Lake City), intending to deal with tbe impostor, not knowing there is a real person as distinguished from the impostor, and the impostor (Kawai) indorses the draft (which was done by Kawai when Uriola cashed it for him), using such assumed name, and transfers it to an innocent purchaser (Uriola), must the loss fall on the maker or the indorser, as purchaser, both maker and indorser being innocent of the imposition at the time of the transaction?\\nIn this proposition two questions are involved: First, the relative responsibilities of Betsun and Uriola; second, the right of the Twin Falls bank to recover the money from Uriola, dependent upon the relative legal rights of Betsun and Uriola.\\nAs to the first proposition, respondent cites the case of Tolman v. American Nat. Bank, 22 R. I. 462, 84 Am. St. 850, 48 Atl. 480, 52 L. R. A. 877, to the effect that Uriola must bear the loss. The facts in that case and this are different in two particulars: first, in the ease at bar, the indorsement by Uriola to the Twin Falls Bank; second, in the above-mentioned case the court comes to its conclusion adverse to appellant herein upon the following fact not in the case at bar, namely: \\\"The plaintiff made inquiry, and finding that Haskell was employed, and was living as represented, he agreed to make the loan. Potter, under the name of Haskell, gave his note to the plaintiff, and the plaintiff gave him a check on the defendant payable to the order of Haskell, delivering it to Potter, supposing him to be Haskell, ' ' which fact controlled the decision, for the court said: \\\"In this case the money was intended for Haskell, because his was the only name suggested. He had been looked up, and found to be responsible. It is a perversion of words to say that it was intended for Potter simply because he had fraudulently impersonated Haskell, and led the plaintiff to believe that he was Haskell. The plaintiff did not intend to let Potter have money. Plis check showed who was to have it, because it was made payable to Haskell. When, therefore, Potter fraudulently endorsed Haskell's name on the cheek, it was a typical case of forgery. It was a false signature, with intent to deceive.\\\"\\nTo make the Tolman v. American Nat. Bank case applicable here, it would have been necessary for Betsun to investigate and ascertain that there was a true \\\"Watanabe and thereafter have dealt with Kawai under the belief that he was dealing with Watanabe.\\nIn commenting upon the Tolman case, in connection with similar situations, and differentiating its applicability to the situation under discussion here, other courts have held that the intent of the maker as to the correct payee is to govern.\\n\\\"Intent of the drawer is the test, and this intention must necessarily arise from knowledge and exist as an affirmative fact in the mind of the drawer at the time of the delivery of the paper.\\\" (American Express Co. v. People's Savings Bank, 192 Iowa, 366, 369, 181 N. W. 701, at 703; Seaboard Nat. Bank v. National Bank of America, 193 N. Y. 26, 85 N. E. 829, 22 L. R. A., N. S., 499; Grand Lodge etc. v. Emporia Nat. Bank, 101 Kan. 369, 166 Pac. 490.)\\nThe rule is recognized as the controlling criterion by Shipman v. Bank of State of New York, 126 N. Y. 318, 22 Am. St. 821, 27 N. E. 371, 12 L. R. A. 791, cited by respondent.\\nTolman v. American Exchange Bank, supra, is shown to be entirely inapplicable to the facts as they exist in the case at bar, by numerous authorities in line with the present decision, among others the following: Jamieson v. Heim, 43 Wash. 153, 86 Pac. 165; Heavy v. Bank, 27 Utah, 222, 101 Am. St. 966, 75 Pac. 727; Boatsman v. Stockmen's Nat. Bank, 56 Colo. 495, 138 Pac. 764, 50 L. R. A., N. S., 107; McHenry v. National Bank, 85 Ohio St. 203, 97 N. E. 395, 38 L. R. A., N. S., 1111; Sherman v. Corn Exch. Nat. Bank, 91 App. Div. 84, 86 N. Y. Supp. 341. In Brannan's Negotiable Instruments Law, page 87, after construing these cases, the author makes the following analysis of the situation involved (p. 89) :\\n\\\"In these fraudulent impersonation cases, the maker or drawer of the instrument may be said to have a double in tent. First, lie intends to make the instrument payable to the person before him or to the person writing at the other end of the line, in case the negotiation is by correspondence. Second, he intends to make the instrument payable to the person whom he believes the stranger to be. The courts have almost unanimously held that the first is the controlling intent except where the named payee was already known to the maker or drawer, . or was more particularly identified in some manner, e. g., by some designation, description or title . in which cases the courts treat the second as the controlling intent.\\\"\\nThere are also collated in said volume learned discussions upon the principle herein involved by Professor Ames, Judge Brewster and Mr. MeKeehan, at pp. 468-471 and 498-504, the conclusion as herein indicated being reached.\\nWhile it is true that the maker of the draft in question was the Utah State National Bank, it was Betsun's intent that must govern, because the bank made the draft payable to the party designated by Betsun. The Salt Lake bank's intent was to make the draft payable to the party that Betsun intended it to be payable to. (First Nat. Bank of Fort Worth, Tex., v. American Exch. Nat. Bank, 49 App. Div. 349, 63 N. Y. Supp. 58; Id., 170 N. Y. 88, 62 N. E. 1089; 14 Harvard Law Rev. 60.) What was Betsun's intent? It was to have the money paid to Kawai, under the name of Watanabe; the name Watanabe, but the person or individual Kawai. Uriola, by his indorsement, identified the individual Kawai as Watanabe, in perfect accord with Betsun's intention, because the individual identified as Watanabe by Uriola was the individual Betsun intended should receive the money. Betsun had no knowledge of any other person than Kawai as being Watanabe, and intended nothing so far as anyone except Kawai was concerned.\\nAs stated in United States v. Chase Nat. Bank, 241 Fed. 535: \\\"If the maker really intends to make the forger payee, even under a false name, his indorsement (the impostor's) is good.\\\"\\nThe strongest rule in favor of respondent is that payment was to be made only to the person authorized to receive the same under the language of the check: Jordan Marsh. Co. v. Shawmut Nat. Bank, 201 Mass. 397, 87 N. E. 740, 22 L. R. A., N. S., 250. The real Watanabe was clearly not entitled to receive or cash the check. True, the original security upon which the cheek was based belonged to the real Watanabe, but so far as the transaction between the Twin Falls bank and Uriola, between Betsun, the two banks and Uriola, and as to Betsun purchasing and sending the check to Hawai, the real Watanabe was a stranger, and no more entitled to receive or cash the draft. So far as the real intention of Betsun and the Salt Lake bank was concerned, if Uriola had indorsed the draft upon the signature of the real Watanabe, it would have been a false indorsement, because he would not have been indorsing payment to the party contemplated by Betsun and the Salt Lake bank as their payee. The indorsement by appellant of the check sent by Betsun was regular in every way, except that Hawai had previously deceived Betsun. If Hawai indorsed the name of Watanabe on the $500 sent Betsun as security, that was a forgery, but the most that can be said if the two transactions -are considered together, and unless they are there can be no taint of fraud or forgery in the second, is that Betsun's security for the loan was worthless, but appellant was in no way responsible for this.\\nHeim v. Neubert, 48 Wash. 587, 94 Pac. 104, Jordan Marsh Co. v. Shawmut Nat. Bank, supra, and similar authorities cited in respondent's brief are to be distinguished on the question of a difference of intent as to payee. This distinction is clearly elucidated in the following:\\n\\\"The plaintiff, in support of his contention that the defendant, 'having permitted the cheeks by mistake to come into the hands of the impostors,' who wrongfully received them, and without authority and by forgery indorsed them 'to a bona fide holder, is liable to such holder for the payment of the same' \\u2014 cites: United States v. National Exch. Bank (C. C.), 45 Fed. 163; National Bank v. Shotwell, 35 Kan. 360, 11 Pac. 141; Crippen Lawrence & Co. v. American Nat. Bank, 51 Mo. App. 508; Meridian Nat. Bank etc. v. First Nat. Bank, 7 Ind. App. 322, 52 Am. St. 450, 33 N. E. 247, 34 N. E. 608; Robertson v. Coleman, 141 Mass. 231, 55 Am. Rep. 471, 4 N. E. 619; Maloney v. Clark, 6 Kan. 83 ; E. S. Karoly Co. v. Globe Savings Bank, 64 Ill. App. 225; Famous Shoe & Clothing Co. v. Crosswhite, 124 Mo. 34, 46 Am. St. 424, 27 S. W. 397, 26 L. R. A. 568; Fiore v. Ladd & Tilton, 22 Or. 202, 29 Pac. 435, and McHenry v. Old Citizen's Nat. Bank, 85 Ohio St. 203, 97 N. E. 395, 38 L. R. A., N. S., 1111. We think the cases are not applicable for the principal reason that in nearly all of them the person to whom the check or instrument was delivered was the very person whom the drawer intended should present and indorse it and receive the money evidenced by it, or with whom the transaction was had with respect to which the check was given, or where recovery was permitted on the ground of negligence or an estoppel. These elements are not here present.\\\" (Simpson v. Denver & R. G. R. Co., 43 Utah, 105, 134 Pac. 883, 46 L. R. A., N. S., 1164.)\\nIt is a pure fiction to contend that Betsun and the Twin Falls bank intended to deal with the man who was the legal owner of the original certificate of deposit, as distinguished from Kawai, they did not know that Kawai was not such legal owner, and Betsun set in motion the machinery which resulted in the loss, and Betsun and the Salt Lake bank were dealing with Kawai as an individual and payee, and as to them, and their intent with regard to the instrument in question, Uriola's indorsement was absolutely correct, and hence as between Uriola and the Twin Falls bank, his indorsement was correct.\\nAs we have indicated above, Betsun is the real drawer, and where a draft is made payable and delivered to an impostor by the drawer of such draft, the drawer intending it to be paid to such impostor, and it is so paid, and the draft comes into the hands of an innocent purchaser for value and without notice, the drawer must stand the loss as between him and the innocent purchaser. First Nat. Bank of Chicago v. Pease, 168 Ill. 40, 48 N. E. 160, is not in point because the party was dealing with an agent, knowing him to be an agent, but thinking he was authorized by his principal, who in fact knew nothing of the transaction. Also Seaboard Nat. Bank v. Bank of America, 193 N. Y. 26, 85 N. E. 829, 22 L. R. A., N. S., 499.\\nRespondent urges with great vigor the applicability of C. S., sec 5390, which section in the Uniform Negotiable Instruments Act has been considered apropos to similar situations in many of the eases quoted herein.\\nThe following case, on facts substantially the same as the case at bar, thus clearly distinguishes the Rhode Island authority, supra, on this point:\\n\\\"The trial court found, first, that the plaintiff intended the draft to be paid to the individual who received the money from defendant, and that defendant was not guilty of any negligence in paying it; second, that the defendant was led and induced to pay the draft by acts of plaintiff, and plaintiff's negligence prompted its payment; .\\n\\\"The liability of defendant is asserted on the grounds set forth in section 42 of the negotiable instruments act of New York, which has been enacted in effect in 14 other states, and is claimed to be declaratory of the common law. Said section 42 reads as follows: 'Where a signature is forged or made without authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.' It is claimed that this signature is a forgery, and the defendant therefore liable.....But it also seems clear that the plaintiff is not entitled to set up this claim. A recent case in Rhode Island (Tolman v. American Nat. Bank, 22 R. I. 462, 84 Am. St. 850, 48 Atl. 480, 52 L. R. A. 877) seems to sustain plaintiff's contention. Its syllabus has the follow ing: 'A cheek drawn payable to the order of A. was procured by representations that the person to whom it was given was A., and the indorsement of the latter was forged thereto, and it was paid by the bank. Held, that the bank was liable to the drawer for such sum, both at the common law, and under the statute.' Rhode Island has adopted the statute above cited. The weight of authority, however, seems to be decidedly in favor of the doctrine that where a check or draft is drawn or indorsed and delivered to a party, to be cashed by him under the name in which it is made out or indorsed, that his signature by way of indorsement in that name is valid as between an innocent holder and the party delivering it to him. This is commonly put on the ground that the prayer of the draft or the purchaser of it is simply carrying out innocently the intention of the maker or indorser. Emporia Nat. Bank v. Shotwell, 35 Kan. 360, 57 Am. Rep. 171, 11 Pac. 141; Meridian Nat. Bank v. First Nat. Bank, 7 Ind. App. 322, 52 Am. St. 150, 33 N. E. 217, 34 N. E. 608; Robertson v. Coleman, 141 Mass. 235, 55 Am. Rep. 471, 4 N. E. 619; Levy v. Bank of America, 24 La. Ann. 220, 13 Am. Rep. 124; Land etc. Co. v. Northwestern Nat. Bank, 196 Pa. St. 230, 79 Am. St. 717, 46 Atl. 420, 50 L. R. A. 75. It is also placed sometimes, as was done in a measure in this instance, by the trial court, on the ground of negligence on the part of the maker. It is-sometimes held that the payee is a fictitious person, and the check or draft therefore payable to bearer.\\\" (Hoffman v. American Exch. Nat. Bank, 2 Neb. (Unof.) 217, 96 N. W. 112.)\\nUpon a similar state of facts, New Jersey has the following well-considered case:\\n\\\"We do not rest the plaintiff's right to recover upon section 9 of the Negotiable Instruments Act (C. S., p. 3736). The cheek cannot be said to have been payable to bearer by force of that section declaring that 'the instrument is payable to bearer . when it is payable to the order of fictitious or non-existing persons and such fact was known to the person making it so payable,' because it does not appear that such fact was known to the drawer.\\n\\\"But we think that the rule is, where (as here), the drawer of a check delivers it, for a consideration which turns out to be fraudulent, to an imposter under the belief that he is the person whose name he has assumed and to whose order the check is made payable, a bona fide holder for a valuable consideration, paid to the imposter upon his indorsement of the payee's name, is entitled to recover from the drawer; it appearing that the person to whom the check was delivered was the very person whom the drawer intended should indorse it and receive the money, and that the drawer made no inquiry before issuing the check concerning the identity or credit of the named payee who was unknown to the drawer. (Citing cases.)\\n\\\"And see Meridian Bank v. First Bank, 7 Ind. App. 322, 52 Am. St. 450, 33 N. E. 247, 34 N. E. 608; Elliott v. Smitherman, 19 N. C. 338; Forbes v. Espey, 21 Ohio St. 474, in which, though the name adopted by the swindler appears to have been really fictitious, the loss is thrown on the drawer for the same reason.\\n\\\"In the present case the plaintiff has merely carried out the drawer's intent. In other cases of fraudulent impersonation the drawer is sometimes said to have a double intent: First, to make the check payable to the person before him, and, secondly, to make it payable to the person whom he believes the stranger to be. But the courts have almost unanimously held that the first is the controlling intent, except where the named payee was already known to the drawer, as in Cundy v. Landsay, 3 A. C. 459, and Rossi v. National Bcmk, 71 Mo. App. 150, or was more particularly identified in some manner; e. g., by some designation, description, or title, as in the case of Mercantile Nat. Bank v. Silverman, 148 App. Div. 1, 132 N. Y. Supp. 1017, none of which factors are present in the case at bar. A man's name is the verbal designation by which he is known, but the man's visible presence is a surer means of identification. In the case at bar, if the plaintiff, -before cashing the check, had sent for and asked the drawer whether or not the person presenting the check was the person 'to whom it was intended to be paid, the answer would have been in the affirmative. Of course the drawer was deceived as to the name of the man it was dealing with, but it dealt with, and intended to deal with, the visible man who stood before it, identified by sight and hearing. Thinking this man's name was N. K. Turner, it drew a check to N. K. Turner's order, intending thereby to designate the person standing before it. Clearly, therefore, the plaintiff has simply paid the money to the person to whom the drawer intended it should be paid. Now either the plaintiff or the defendant must suffer the loss. Both were innocent parties, and the loss justly falls upon the defendant whose mistake in issuing the check facilitated the fraud and primarily made such loss possible. Such was undoubtedly the law prior to the Negotiable Instruments Act. By section 23 of that act (C. S., p. 3738) 'where a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative,' except as against a party who 'is precluded from setting up the forgery or want of authority.' If we assume that the indorsement in the present ease was a forgery or without authority, within the meaning of that section, still in the light of the cases herein referred to the drawer 'is precluded from setting up the forgery or want of authority, and so the signature is not inoperative as to him, and the law remains unchanged.' \\\" (Montgomery Garage Co. v. Manufacturers' Liability Co., 94 N. J. L. 52, 22 A. L. R. 1224, 109 Atl. 296.)\\nAs between Betsun and Uriola, Betsun is therefore the party that must stand the loss.\\nConceding the right of a bank to cancel credit given a depositor when a check is deposited by 'such depositor and entered on the books of the bank, and charge back to the account of the depositor the amount of its loss because the check is a forgery (Bailie v. Augusta Savings Bank, 95 Ga. 277, 51 Am. St. 74, 21 S. E. 717; Blake v. Hamilton Dime Savings Bank Co., 79 Ohio St. 189, 128 Am. St. 684, 16 Ann. Cas. 210, 87 N. E. 73, 20 L. R. A., N. S., 290; National Gold Bank & Trust Co. v. McDonald, 51 Cal. 64, 21 Am. Rep. 697; Ocean Park Bank v. Rogers, 6 Cal. App. 678, 92 Pac. 879; Lyon Cownty State Bank v. Schaffer, 102 Kan. 868, 171 Pac. 1159; Belsheim v. First Nat. Bank of White Salmon, 77 Wash. 552, 137 Pac. 1055; 3 R. C. L. 522; 7 C. J. 633, 636); such right as we have indicated rests on the right of the drawer to demand payment from the indorser, and there was no such right herein.\\nMcCarthy and Wm. E. Lee, JJ., concur.\\nDunn, J., concurs in the conclusion reached.\\nPER CURIAM.\\n\\u2014 The foregoing opinion is hereby approved as the opinion of the court and the judgment of the lower court is reversed and the cause remanded, with instructions to enter judgment in favor of appellant. Costs are awarded to appellant.\"}"

idaho/2341926.json

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+"{\"id\": \"2341926\", \"name\": \"JOHN W. MORTON, Respondent, v. MORTON REALTY COMPANY, a Corporation, FOSTER CRANE and F. R. GOODING, Appellants\", \"name_abbreviation\": \"Morton v. Morton Realty Co.\", \"decision_date\": \"1925-12-10\", \"docket_number\": \"\", \"first_page\": \"729\", \"last_page\": \"746\", \"citations\": \"41 Idaho 729\", \"volume\": \"41\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:16:11.831389+00:00\", \"provenance\": \"CAP\", \"judges\": \"William A. Lee, C. J., and Budge, J., concur.\", \"parties\": \"JOHN W. MORTON, Respondent, v. MORTON REALTY COMPANY, a Corporation, FOSTER CRANE and F. R. GOODING, Appellants.\", \"head_matter\": \"(December 10, 1925.)\\nJOHN W. MORTON, Respondent, v. MORTON REALTY COMPANY, a Corporation, FOSTER CRANE and F. R. GOODING, Appellants.\\n[241 Pac. 1014.]\\nBissell & Bird and W. T. Stafford, for Appellants.\\nJ. G-. Watts and James & Ryan, for Respondent.\", \"word_count\": \"4702\", \"char_count\": \"26928\", \"text\": \"GIVENS, J.\\n\\u2014 Respondent, John W. Morton, a stockholder of the Morton Realty Company, an Idaho corporation, commenced this action in February, 1919, against the corporation and Foster Crane and Frank R. Gooding, the latter two with respondent being the directors of the corporation, following the sale of the Buckeye ranch and all chattels on the same, owned by said company, to restrain appellant Foster Crane, also a stockholder, and president, treasurer and general manager, from disbursing the $105,000 or any part thereof, received as the purchase price of such ranch, until appellant made a complete accounting of all receipts and disbursements during his management and operation of the company's property. Appellant Crane had distributed $79,000 of the purchase price according to the several holdings of stock, and retained $26,000 of said purchase price upon a claim that the company was indebted to him in this amount for advances he had made during his management of the property. The complaint further alleges that the total stock of the corporation was 2,000 shares, that the defendant Foster Crane owned a majority of said stock, that the defendant Frank R. Gooding owned 500 shares and that respondent was the owner of 469 shares, and alleges that due to this fact the company had failed and refused to demand an accounting of defendant Foster Crane and because of that reason this respondent instituted this action.\\nRespondent alleged that no accounting had ever been made to the company during Crane's incumbency as treasurer and general manager; that appellant was not authorized to incur the expenditures of $26,000 on behalf of the corporation; that he had agreed his expenditures in carrying on the business of the corporation should not exceed the income and profits derived from the operation of the Buckeye ra'neh; that by reason of these facts the entire purchase price received from the sale of the ranch should be distributed to the stockholders in proportion to their holdings of stock; denied this indebtedness of $26,000 or any other amount from the corporation to appellant Crane, asked for an accounting and restraining order and that the moneys retained by Crane be distributed.\\nAppellant Crane filed his separate answer, admitting the sale of the property, alleging -such sale was made with the consent of respondent; denying that he had failed to make an accounting; and alleged he had made full, complete and itemized statements of all his financial transactions, which were audited and found correct by an auditor employed by the corporation.\\n. Upon the issues thus presented respondent moved for the appointment of a referee \\\"to take an accounting of the defendant corporation,\\\" whereupon the court allowed a reference, naming Frank Croner, Esquire, of Fairfield, Idaho, as such referee for taking* such accounting with full power to require the parties and witnesses to appear before him to give testimony and produce documentary evidence concerning any and all matters involved and the taking of such account, further providing, \\\"and said referee may direct the taking of depositions, hearing testimony of witnesses, and examination of such books, papers and accounts as in his judgment is necessary to determine what amount, if any, is due from the said Foster Crane to the Morton Realty Company, a corporation, and to this plaintiff and report his findings to this court not later than the 29th day of October, 1921.\\\"\\nThe appellant Frank R. Gooding, was joined as a party defendant but did not appear further, no claim was made against him and evidently he sought no relief, hence the only stockholder in the action seeking relief was the respondent Morton.\\nA hearing was had before the referee after which he reported to the court his findings of fact and conclusions, and upon reconsideration, a supplemental report was made; thereafter upon respondent's motion, judgment was entered against the appellant Foster Crane in favor of respondent, for his share of the corporate funds retained by Crane in the sum of $5,305.52, from which judgment and all of the proceedings leading up to the same this appeal is taken.\\nAppellant's first assignment of error is as follows:\\n\\\"That the judgment in this ease is erroneous because the appellant was not afforded a trial by jury as guaranteed by the Constitution of the State of Idaho.\\\"\\nArticle 1, section 7 of the Idaho constitution, guaranteeing the right to trial by jury, does not refer to equitable actions. In Christensen v. Hollingsworth, 6 Ida. 87, 96 Am. St. 256, 53 Pac. 211, this court stated:\\n\\\"It is the settled doctrine in a number of states having constitutional provisions similar to those above cited that those provisions must be read in the light of the law <ysnstin<r at the time of the adoption of the constitution. Said pro visions were not intended or designed to extend the right of trial by jury, simply to secure that right as it existed at the date of the adoption of the constitution. (Citing numerous authorities.) The guaranty that 'the right to trial by jury shall remain inviolate' has no reference to equitable cases.\\\" (Citing authorities.) (Brady v. Yost, 6 Ida. 273, 55 Pac. 542; Shields v. Johnson, 10 Ida. 476, 79 Pac. 391; Clark v. Paddock, 24 Ida. 142, 132 Pac. 795, 46 L. R. A., N. S., 475; Rees v. Gorham, 30 Ida. 207, 164 Pac. 88; People v. Burnham, 35 Ida. 522, 207 Pac. 589.)\\nCrane was the general manager and president of the Morton Realty Company during a period of approximately three years, over which period of time this accounting was prayed for, and to determine whether or not Crane had a legal set-off required an examination of the expenditures incurred and the revenue derived from the operation of the ranch during this time. The claim itself is not for any specific sum and must be determined by an accounting between the parties.\\nWhere the relation between the parties to an action is a fiduciary one, an action for an accounting is an equitable action.\\n\\\"When majority stockholders dispose of the property of the corporation which they control in such a manner as to deprive the minority of their just rights in it, there is a breach of trust, and a court of equity is the tribunal and the only tribunal to provide an effective remedy.\\\" (Backus v. Brooks, 195 Fed. 452, 115 C. C. A. 354; Hirsch v. Jones, 56 Fed. 137.)\\n\\\"If the corporation being in control of the defaulting officers or for other insufficient reasons remains inactive, nevertheless equity will afford relief on a bill brought by one or more of the stockholders for its benefit and to which it must be made a party. Smith v. Hurd, 12 Met. (Mass.) 371, 385, 46 Am. Dec. 690; Von Arnim v. American Tube Works, 188 Mass. 515, 74 N. E. 680.\\\" (Corey v. Independent Ice Co., 226 Mass. 391, 115 N. E. 488.)\\n\\\"Since the officers of a corporation are trustees, a court of general equitable jurisdiction would at the instance of any stockholder prevent a wilful misappropriation of its funds and waste of its assets, and compel the officers to account for their misconduct. Davis v. Gemmel, 70 Md. 356, 376, 17 Atl. 259; Byrne v. Schuyler El. Mfg. Co., 65 Conn. 336, 351, 352, 31 Atl. 833, 28 L. R. A. 304; Pratt v. Pratt Read Co., 33 Conn. 446, 457; Scofield v. Eighth School Dist., 27 Conn. 499, 504; Sears v. Hotchkiss, 25 Conn. 170, 176, 65 Am. Dec. 557; Dodge v. Woolsey, 18 How. (U. S.) 331, 15 L. ed. 401; Hawes v. Oakland, 104 U. S. 450, 26 L. ed. 827.\\\" (Sheelvy v. Barry, 87 Conn. 656, 89 Atl. 259; Davis v. Hofer, 38 Or. 150, 63 Pac. 56; Skeen v. Warren Irr. Co., 42 Utah, 602, 132 Pac. 1162; 1 Pomeroy's Equity Jurisprudence, 4th ed., p.. 254; 4 Pomeroy's Equity Jurisprudence, 3d ed., sec. 1421.)\\nFox v. Hall, 164 Cal. 1287, 128 Pac. 749, follows this rule and says: \\\"The contract between the plaintiffs and L. J. Hall, followed by his possession of their property and the management thereof, entitled them to an accounting from him of such management, and of the receipts and disbursements, to the end that they might then demand the payment of any net income which should have been applied , to the reduction of the mortgage debt. The facts alleged and proved showed the existence of fiduciary relation sufficient to invoke the jurisdiction of a court of equity to compel an accounting, which as the evidence shows, had been demanded of the defendant L. J. Hall. (1 Cyc. 427; Wooster v. Nevills, 73 Cal. 58, 14 Pac. 390; Green v. Brooks, 81 Cal. 328, 22 Pac. 849; San Pedro Lumber Co. v. Reynolds, 111 Cal. 588, 44 Pac. 309; Coward v. Clanton, 122 Cal. 451, 55 Pac. 147.) Upon such accounting, the burden would probably be upon the said defendant to establish any expenditures or credits upon which he might rely as offsets to the gross income shown to have been received by him.\\\" (1 C. J. 621, sec. 68; Frankfort Marine A. & M. Co. v. California A. M. & W. Co., 28 Cal. App. 74, 151 Pac. 176; Anderson v. Watson, 141 Md. 217, 118 Atl. 569.)\\nThe relation between a corporation and its president or general manager is a fiduciary relationship. (Port v. Russell, 36 Ind. 60, 10 Am. Rep. 5; Pratt v. Luther, 45 Ind. 250; Dury v. M. & S. R. R. Co., 7 Wall. (U. S.) 299, 19 L. ed. 40; Wayne Pike Co. v. Hammons, 129 Ind. 368, 27 N. E. 487; Pomeroy's Equity Jurisprudence, secs. 147, 881, 964.)\\n\\\"Equity has jurisdiction of a suit by a corporation against its managing agent to require an accounting in respect to his management of its property even though the ultimate object sought is to obtain a money judgment.\\\" (Providence M. & M. Co. v. Nicholson, 178 Fed. 29.)\\nIn Fowle v. Lareson, 5 Pet. (U. S.) 495, 8 L. ed. 204, Chief Justice Marshall said:\\n\\\"In all cases in which the action of account would be the proper remedy at law, and in all cases where a trustee is a party, the jurisdiction of a court of equity is undoubted. It is the proper tribunal.\\\" (Jones v. Gardner, 57 Cal. 641, 19 Pac. 641; First Sav. Bank & Trust Co. v. Greenledf, 294 Fed. 467. See, also, National Bank of Commerce v. Equitable Trust Co., 227 Fed. 526, 142 C. C. A. 158; George v. Wallace, 135 Fed. 286, 68 C. C. A. 40; Kilbourn v. Sunderland, 130 U. S. 505, 9 Sup. Ct. 594, 32 L. ed. 1005; Bailey v. Kirby Lumber Co. (Tex. Civ. App.), 195 S. W. 221.)\\nPrimarily the corporation is the party to proceed in such eases to redress wrongs to the corporation, but a stockholder may institute such an action without demand on the corporation where such demand would be futile or useless, on the theory that the offending parties would be unlikely to start proceedings against themselves. (Ryan v. Old Veteran Min. Co., 37 Ida. 625, 218 Pac. 381; Just v. Idaho Canal etc. Co., 16 Ida. 639, 133 Am. St. 140, 102 Pac. 381; Forbes v. Wilson, 243 Fed. 264; Robinson v. De Luxe Motor Car. Co., 170 Mich. 163, 135 N. W. 897; Matthews v. Headly Chocolate Co., 130 Md. 523, 100 Atl. 645; Tasler v. Peerless Tire Co., 144 Minn. 150, 174 N. W. 731; Heath v. Erie Ry. Co., 11 Fed. Cas. 976; Glenn v. Kittaning Brewing Co., 259 Pa. 510, Ann. Cas. 1918D, 340, 103 Atl. 340, L. R. A. 1918D, 738; Columbia Nat. Sand D. Co. v. Washed Bar Sand D. Co., 136 Fed. 710; Hughes Mfg. & Lumber Co. v. Culver, 127 Ark. 72, 189 S. W. 850; Magle v. Fomby, 132 Ark. 289, 201 S. W. 278; Reed v. Hollingsworth, 157 Iowa, 94, 135 N. W. 37; Grout v. First Nat. Bank of Grand Junction, 48 Colo. 557, 21 Ann. Cas. 418, 111 Pac. 556; Wayne Pike Co. v. Hammons, 129 Ind. 368, 27 N. E. 487; Smith v. Rader, 31 Ida. 423, 173 Pac. 970; Alabama Fidelity Mtg. & Bond Co. v. Dubberly, 198 Ala. 545, 73 So. 911; Gosewisch v. Doran, 161 Cal. 511, Ann. Cas. 1913D, 442, 119 Pac. 656; Davis v. Gemmel, 70 Md. 356, 17 Atl. 259.)\\nAppellant complains in his second assignment of error because the referee made findings upon the issues of fact, saying that he was not authorized so to do under the order of reference. While there may be some question as to whether the referee was authorized to make such findings, it appears that appellant's objection came too late, since the objection was made for the first time in this court and after the findings and conclusions had been confirmed and judgment entered thereon in the trial court.\\n\\\"Where a case was tried before a referee on the theory that he was authorized to report findings of fact, and he did so, and no objection to his so doing wa-s filed in the trial court, any objection to the findings of the referee, on the ground that he was not so authorized by the order-, was waived.\\\" (Moghanson v. Zubler, 36 Colo. 235, 84 Pac. 981; First Nat. Bank v. McClellan, 9 N. M. 636, 58 Pac. 347; Field v. Romero, 7 N. M. 630, 41 Pac. 517; De Cordova v. Korte, 7 N. M. 678, 41 Pac. 526; Express Co. v. Walker, 9 N. M. 456, 54 Pac. 875; Clark, Wise Co. v. Hauschildt, 28 Cal. App. 47, 151 Pac. 149.)\\nThe only objection made in the lower court to the confirmation of the referee's findings and conclusions was on the ground that appellant was entitled to a jury trial; therefore, the question of whether or not the referee exceeded his authority or went beyond the order of reference in making findings and conclusions was under the above authorities deemed waived. (Walker v. Campbell, 3 Ida. 13, 26 Pac. 23.)\\nAppellant's third assignment, of error was that the judgment, report and supplemental report and findings of the referee are contrary to the law and evidence and not supported by the evidence. Bespondent urges that .to authorize a review of a judgment based upon the report of a referee and to attack the findings, a motion for new trial should have been made.\\nC. S., see. 6876, provides as follows: \\\"The findings of the referee upon the whole issue must stand as the finding of the court, and upon filing the finding with the clerk of the court, judgment may be entered thereon in the same manner as if the action had been tried by the court.\\\"\\nAnd C. S., see. 6877, provides: \\\"The finding of the referee upon the whole issue may be excepted to and reviewed in like manner as if made by the court. When the reference is to report the facts, the finding reported has the effect of a special verdict.\\\"\\nThe findings of a referee having the effect of a special verdict are to be governed by the statute regarding special verdicts. C. S., sec. 6861, together with C. S., sec. 6864, provide that the court must enter judgment upon the special verdict, and C. S., sec. 7170, states that on appeal from the judgment the court may review the verdict or decision and any intermediate order or decision, if excepted to, which involves the merits or necessarily affects the judgment, except a decision or order from which an appeal might have been taken, and C. S., see. 6879, among other things, provides that any interlocutory order, ruling or decision appearing in the record or files or minutes of the court, and rulings, orders or. decisions upon objections to the evidence or any contested proceedings upon a trial are deemed excepted to and if they appear upon the record need not be incorporated in a special bill of particulars. The trial judge who appointed the referee and who confirmed the referee's report settled the transcript of the evidence and allowed the same as a bill of exceptions upon this appeal, and it was further stipulated between the parties that the transcript of the testimony as taken before the referee should be a part of the record on the appeal in this case. It is therefore apparent that the parties intended to treat the transcript of the evidence as though the evidence had been taken before the court and a transcript thereof prepared in compliance with C. S., see. 6886, and consequently is to be governed by such statute. It therefore appears that the sufficiency of the evidence and all adverse rulings made by the referee may be reviewed the same as if such proceedings had taken place before the trial court and to seeure a review of such question on appeal in this court it is unnecessary to have moved for a new trial, and that such motion is only necessary in case the party desired the trial court to review the referee's actions and the evidence and its sufficiency.\\n\\\"Hence, if the evidence is insufficient to support the referee's findings they may be set aside and a new trial granted, upon proper motion, seasonably made, for a new trial in the District Court, or, by the Supreme Court, on appeal.....In short it is too clear for argument that the statutory modes of reviewing verdicts of juries and the findings of a court are applicable to the_ findings of fact of a referee upon the whole issue.....\\\" (United States v. Ramsey, 158 Fed. 488, 492.)\\nAmong others, Northrup Nat. Bank v. Webster Refining Co., 89 Kan. 738, 132 Pac. 832; Tribal Development Co. v. White Bros. (Okl.), 111 Pac. 195, cited by respondent, and similar cases holding that before the sufficiency of the evidence may be reviewed in the appellate court a motion for a new trial must have been presented to the trial court, are not in point, because in this state the sufficiency of the evidence may be reviewed on appeal from the judgment and a motion for new trial is not a condition precedent to such right of review. (Alder v. Edenborn, 198 Fed. 928.)\\nAppellant complains that the referee's report is contrary to law and the evidence because certain evidence was upon objection excluded.\\nThe first objection referred to was made by counsel for appellant, consequently so far as appellant is concerned no error can be predicated thereon.\\nC. S., sec. 8035, by virtue of which this examination was being conducted, provides:\\n\\\"A party to the record of any civil action or proceedings, . may be examined by the adverse party as if under cross-examination, subject to the rules applicable to the examination of other witnesses.....\\\"\\nThis section subjects such cross-examination to the rules applicable to the examination of other witnesses.\\nC. S., sec. 8034, defines general cross-examinations:\\n\\\"The opposite party may cross-examine the witness as to any facts stated in his direct examination or connected therewith, and in so doing may put leading questions; but if he examine him as to other matters such examination is to be subject to the same rules as a direct examination.\\\"\\nThe limitation therein contained cannot apply to cross-examinations under the statute, because there having been no previous examination in chief, there would be no facts previously stated or matters connected therewith to cross-examine about. The limitation on cross-examination under the statute, since the witness is a party, would therefore be the material issues of the case.\\n\\\" 'The main purpose of this statute is to permit an adverse party to be called as a witness to prove, or to be interrogated concerning, facts material to the ease of the party calling him, and that such witness may be called to prove a single material fact, or any number of material facts, even the whole case. The facts as to which the party calling such witness may desire to examine him are wholly within his discretion.....A witness who is a party to the action is therefore called the same as any other witness to prove certain facts, and not for cross-examination.'\\n\\\"But because he is deemed an adverse witness, the statute provides that the mode in which he is examined may be that ordinarily employed in cross-examination.....If the evidence sought to be elicited from the witness Hauff was material, it was clearly erroneous to sustain the objection on the ground that it was not proper cross-examination. Is the evidence sought to be elicited by this question competent or material?\\\" (Hauff & Storma v. South Dakota Cent. Ry. Co., 34 S. D. 183, 147 N. W. 986; Symes v. Fletcher, 95 Vt. 431, 115 Atl. 502; First State Bank v. Anderson, 46 S. D. 104, 191 N. W. 339; Waller v. Sloan, 225 Mich. 600, 196 N. W. 347; Kuitula v. Abbott, 229 Mich. 84, 201 N. W. 186.)\\nThe witness was the plaintiff in the action and had demanded an accounting, and had alleged in his complaint that the amount claimed by Foster Crane as due him from the company was excessive and therefore that there was a larger amount due him, Morton, from Foster Crane than was admitted to be due by Foster Crane. The defendant Foster Crane had denied such situation and had submitted a report and had testified in connection therewith. The main issue then was whether or not the accounting and settlement as offered by Crane was correct.\\nIt does not appear that Morton was testifying as an expert in connection with the statement so as to bring him within the inhibition of Osborn v. Carey, 24 Ida. 158, 132 Pac. 967. The question of the correctness of charging these items against the company was in issue and the questions were material to such issues, and in the absence of further or more explicit objection, or a showing that the information sought to be elicited came within the restriction of Boeck v. Boeck, 29 Ida. 639, 161 Pac. 576, the answers should have been allowed, and while not sufficiently prejudicial to authorize a reversal, because the witness had stated that he did not know anything about any of these cheeks, the refusal of the court to permit an answer to be given to a further question asked is of a more serious nature.\\n\\\"Q. You don't know of your own knowledge whether Mr. Crane's accounting that he has filed is correct or not do you ?\\n\\\"A. Well, I don't believe it is correct.\\n\\\"Q. That isn't what I asked you. I asked you if you knew, of your own personal knowledge whether the accounting was correct or incorrect?\\n\\\"A, I know the accounting isn't correct as far as we have investigated.\\n\\\"Q. Now, will you designate to the Court that portion of the total that is incorrect?\\n\\\"Mr. James: Same objection.\\n\\\"The Referee: Same ruling.\\\"\\nThe objection being \\\"same objection,\\\" evidently refers back to the objection by Mr. Watts that it was not proper cross-examination, irrelevant, incompetent and immaterial, and the ruling being, \\\"same ruling\\\" evidently refers back to the ruling of the referee sustaining this objection.\\nIf this question had been answered and by the answer or by subsequent answers the appellant could have shown that the witness' statement, \\\"I know the accounting isn't correct as far as we have investigated,\\\" was erroneous in any particular, such answers would have had at least some bearing upon the conclusion which the referee was to ultimately reach. If the witness could not have indicated the portion that was incorrect it would have weakened his statement that so far as he had investigated it was incorrect. If he had pointed out the particulars in which it was incorrect, then the opposition would have had an opportunity to adduce additional testimony on these items and perhaps have proved them correct, at least have tried to meet the witness' statement that the account was incorrect in the particulars designated by him. Thus no matter what the answer of the witness might have been it would have had a direct bearing upon the material issues of the case and the denial of the answers was erroneous. Appellant should have been permitted to investigate the source of Morton's information and the details of his investigation and the items which led him to the conclusion that the account was incorrect (Park v. Johnson, 20 Ida. 548, 119 Pac. 52), and since the referee in his finding did not follow the statement as rendered by appellant, it is not unreasonable to suppose Morton's conclusion influenced the decision and the objection was thus an undue restriction of the cross-examination on a material issue and probably affected the result and therefore was prejudicial. (Henry v. State (Ind.), 146 N. E. 822; Alabama Machinery & Supply Co. v. Roquemore, 205 Ala. 244, 87 So. 435.)\\nThe other assignments of error deal with the sufficiency of the evidence and the correctness of the referee's conclusions, and since upon a re-examination of the issues the same evidence may not be again introduced or additional evidence may be introduced, we will not comment further upon such assignments except to say that where an accounting is applied for from one occupying a fiduciary relationship, the burden is on him to furnish a full, complete and accurate accounting and to establish any expenditures or credits upon which he relies as offsets to the amounts he admits he has received. (Fox v. Hall, supra; McManus v. Sawyer, 231 Fed. 231; Hobbs v. Monarch Refrigerating Co., 277 Ill. 326, 115 N. E. 534), and the record was in this respect far from satisfactory, and -this court can well appreciate the difficulties the referee was laboring under in endeavoring to find a true and correct account between the parties.\\nThe judgment of the lower court is therefore reversed, and it is so ordered. Costs awarded to appellant.\\nWilliam A. Lee, C. J., and Budge, J., concur.\"}"

idaho/2345308.json

@@ -0,0 +1 @@
+"{\"id\": \"2345308\", \"name\": \"THE FEDERAL LAND BANK OF SPOKANE, a Corporation, Appellant, v. A. F. McCLOUD and LULU S. McCLOUD, Husband and Wife, and JAS. H. SHIELDS, Jr., and JAMES GANNON, Partners Doing Business Under the Trade Name and Style of BUHL SEED & GRAIN CO., Respondents\", \"name_abbreviation\": \"Federal Land Bank v. McCloud\", \"decision_date\": \"1933-02-14\", \"docket_number\": \"No. 5787\", \"first_page\": \"694\", \"last_page\": \"712\", \"citations\": \"52 Idaho 694\", \"volume\": \"52\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T01:12:58.997370+00:00\", \"provenance\": \"CAP\", \"judges\": \"Givens and Holden, JJ., and Koelsch, D. J., concur.\", \"parties\": \"THE FEDERAL LAND BANK OF SPOKANE, a Corporation, Appellant, v. A. F. McCLOUD and LULU S. McCLOUD, Husband and Wife, and JAS. H. SHIELDS, Jr., and JAMES GANNON, Partners Doing Business Under the Trade Name and Style of BUHL SEED & GRAIN CO., Respondents.\", \"head_matter\": \"(No. 5787.\\nFebruary 14, 1933.)\\nTHE FEDERAL LAND BANK OF SPOKANE, a Corporation, Appellant, v. A. F. McCLOUD and LULU S. McCLOUD, Husband and Wife, and JAS. H. SHIELDS, Jr., and JAMES GANNON, Partners Doing Business Under the Trade Name and Style of BUHL SEED & GRAIN CO., Respondents.\\n[20 Pac. (2d) 201.]\\nBissell & Bird and Dana E. Brinck, for Appellant.\\nFrank L. Stephan, for Respondents Shields and Gannon, and E. D. Reynolds, for Respondents A. F. and Lulu S. McCloud.\", \"word_count\": \"6062\", \"char_count\": \"33974\", \"text\": \"BUDGE, C. J. \\u2014\\nThis action was brought by appellant to recover from respondents certain specific crops or their value in case delivery could not be had. From the record it appears that on October 15, 1926, appellant and respondents, A. F. McCloud and Lulu S. McCloud, entered into a written contract whereby the former agreed to sell to the latter certain real- property in Gooding county, at a price fixed therein. Title to the land remained in appellant at all times herein, although provision was made in the contract whereby title might be transferred to the purchasers at the end of four years from date of the contract. The following provisions, among others, were contained in the contract:\\n\\\"The parties of the second part (McClouds) . further covenant and agree to turn over to the party of the first part (appellant) each year on account of said purchase price one-half (%) of all grain and other crops raised on all of the above described land, except for the year 1927, and for that year one-third (%) of said crops. The proceeds from the sale of the grain and other crops so turned over to the party of the first part shall be applied, first, to the payment of interest; and second, to the payment of the-principal . The parties of the second part further covenant and agree to deliver the grain and other crops hereinbefore covenanted to be turned over to the paxty of the first part, in the elevator or other place at Wendell, Idaho, or at some other convenient point, as the party of the first part shall direct, within a reasonable time after threshing and harvesting the same, and free from all expense or charge to the party of the first part, said grain and other crops to be delivered in the name of the party of the first part. If any of the alfalfa or clover grown on said land shall be cut for hay, the same shall be stacked on said land and divided by such agent of the party of the first part.\\n\\\"It is further covenanted and agreed that, until the delivery of the grain and other crops to the party of the first part as aforesaid, during the continuance of this contract, the legal title to, and ownership and possession of all of the grain raised during each and every year shall be and remain in the party of the first part.\\\"\\nThe McClouds went into possession and farmed the premises thereafter. Certain hay, clover seed and alfalfa seed raised upon the premises in 1930 were not divided. McCloud sold the hay and delivered the clover and alfalfa seed to respondents Shields and Gannon, at the latter's warehouse, and took a warehouse receipt therefor in his own name. Appellant thereupon commenced this action, the complaint alleging facts substantially as above set forth, and praying judgment for the division and delivery to it of its share of the crops in question, and in the event that the same could not be divided or delivered, that it have judgment against McCloud and wife for the value of its share, and further, that in the event Shields and Gannon have appropriated any portion of appellant's share of such crops, it be given judgment against them for the value of the crops so appropriated.\\nShields and Gannon answered, denying generally the allegations of the complaint, and alleging affirmatively the delivery of the seed to them and the issuance of warehouse receipt therefor; the pledge of the warehouse receipt by McCloud as security for the repayment of $1,471.70 advanced by them to McCloud; their subsequent purchase of the seed from McCloud; and that such transactions were made in good faith and without knowledge or notice, actual or constructive, that appellant owned or claimed any interest in said seed. McCloud and wife answered denying generally the allegations of the complaint.\\nUpon the issues so framed, the cause was tried by the court, a jury being waived. At the close of plaintiff's evidence and at the close of all the evidence motions for non-suit made by Shields and Gannon were denied. However, the trial court in its conclusions concluded that their motion for nonsuit should be granted. Findings of fact and conclusions of law were made and filed and judgment was entered dismissing the action, from which judgment this appeal is taken.\\nAppellant specifies five assignments of error. The controlling question raised thereby is whether or not the crops in question were owned by appellant and the McClouds as tenants in common under the terms of the contract above referred to. In support of its contention that a tenancy in common in the crop was created by the contract, appellant relies principally upon the case of Devereaux Mortgage Co. v. Walker, 46 Ida. 431, 268 Pac. 37, 38, which involved the interpretation and construction of language similar to that of the contract here in question. In that case the language was contained in a lease, creating the relationship of landlord and tenant, while the relationship of vendor and purchaser was created by the contract of sale here. The trial court held that the difference in the relationships distinguished the two cases and that the rule applied in the former was not applicable to the latter. We are unable to see any logical distinction calling for the application of a different rule, especially in view of the remarks of the court in Lynch v. Sprague Roller Mills, 51 Wash. 535, 99 Pac. 578, 580, namely:\\n\\\" . the construction which courts have uniformly placed on contracts between landlord and tenant is a safe rule to follow in construing similar contracts between vendor and purchaser.\\\"\\nand in view of the rule announced in 38 Cyc. 6, where it is said:\\n\\\"Thus a tenancy in common springs up whenever an estate in real or personal property is owned concurrently by two or more persons under a conveyance or under circumstances which do not either expressly or by necessary implication call for some other form of cotenancy. It is held that a tenancy in common may be created by will, by descent, and the relation may be brought into existence by purchase, sale or conveyance. It is not the form of the instrument which determines the existence of the relation, but the concurrent rights in the same property at the same time, and the tenancy can arise by pledge or mortgage, by legislative grant, by prescription, by judgment or decree, by levy or execution, or by confusion or intermingling of goods, by consent, or with the owner's fault.\\\"\\nThe language used in the Devereaux Mortgage Co. case, supra, is broad enough to include and cover any contract by which a tenancy in common is created.\\nIn the Devereaux Mortgage Co. case, supra, the lessees covenanted: \\\"to pay as rental for said premises one-third of all crops planted and grown upon said premises . to be delivered at the warehouse in Rexburg free of cost to The Devereaux Mortgage Company.\\\" and the lease further provided that upon default of the lessees, the lessor might terminate the agreement and in that event the lease should \\\"become a lien on any crops that may be at that time in the ground or on the premises for any unpaid rental or any share due or to become due as rental.\\\"\\n. After an exhaustive review of the -authorities construing similar provisions and holding that the same created a tenancy in common in such crops, the court said:\\n\\\"In the contract in question the Walkers (lessees) covenanted to deliver to the respondent (lessor) at an agreed place one-third of the products of the land, not to pay a sum equal to the value of that share of the crops. They were not given the right to elect whether they would deliver crops or pay value or given authority to sell and then make division. Their contract was to deliver a share of the crops and nothing else. It simply was that the respondent should furnish the land and the Walkers should do and furnish all other things necessary to the production of a crop and that the compensation to the respondent for the use of its land and the compensation to the Walkers for their labor would be in crops in the proportion agreed upon. Contracts of this character are common and there would seem to be much in them to commend then to land owners and producers of crops. Each has the assurance that the abundance of the crops and the prosperity of the season will be controlling elements in determining the profits he will realize from the season's operations. To hold that each party has at all times an ownership in the growing crops proportionate to the share he will ultimately receive, though the right to the possession be in the producer until harvested, will best effectuate the intention of the parties, and to ascertain intention rather than classify relations created should, it would seem, be the principal concern of the court.\\n\\\"If it be held that the land owner has no interest in the crops and that his only remedy is to recover a. personal judgment against the occupier for a sum equal to the value of a share of the crops, the essential agreement of the parties is defeated, a dishonest tenant is enabled to dispose of the entire crop, his creditors can seize and sell the entire crop for the payment of their debts. The land owner is obliged to stand by, without right to process, though he may have full knowledge that the property which the other had agreed to deliver was being dissipated by him or converted by others. To construe such a contract as investing the grower with complete title and denying the land owner any title not only ignores the very purpose and intention of the parties but substitutes a different contract in the place of the contract the parties have made.\\n\\\"The majority rule protects each party, assures him of his right to receive the identical property the other agreed he should have and denies the right of the other to dispose of, and his creditors to reach, more than the share to which he is justly entitled.\\\"\\nIn the contract before us the purchasers agreed \\\"to turn over\\\" to appellant \\\"one half % of all the grain and other crops raised on all of the above described land\\\" in 1930; that \\\"the proceeds from the sale of the grain and other crops so turned over\\\" to appellant should be applied in payment of the purchase price and interest; that they would \\\"deliver the grain and other crops hereinbefore covenanted to he turned over\\\" to appellant at an agreed place, \\\"said grain and other crops to he delivered\\\" in the name of appellant; that alfalfa and clover cut for hay should he stacked on the land and divided by the agent of appellant; that appellant should have and retain title to all the grain each year \\\"until the delivery of the grain and other crops\\\" to it; that no portion of said crops shall be removed from said land until division thereof; and that the agreement shall be void if \\\"default be made in the delivery of said several payments of grain a/nd other crops to be grown on said land.\\\" From these provisions we think it is clear beyond controversy that the parties to the contract provided and intended that it was a certain definite part of the crops themselves that was to be delivered or turned over to appellant, in specie, and not the proceeds of the sale of such crops, and, in the language of the Devereaux Mortgage Co. case, supra, the purchasers \\\"were not given the right to elect whether they would deliver crops or pay value or given authority to sell and then make division. Their contract was to deliver a share of the crops and nothing else.\\\"\\nRespondents, in support of their contention that the proceeds of the crops and not the crops themselves were to be divided, place reliance upon Yakoobian v. Johnson, 102 Cal. App. 10, 282 Pac. 522, where it was held that in the absence of stipulation to the contrary, a purchaser let into possession is entitled to crops raised by him; and also on First Nat. Bank v. Montana Emporium Co., 59 Mont. 584, 197 Pac. 994, holding to similar effect. These cases are clearly distinguishable for the reason that in the contract before us there are express stipulations to the contrary. Lynch v. Sprague Roller Mills, supra, Moen v. Lillestal, 5 N. D. 327, 65 N. W. 694, and First Nat. Bank v. Andreas, 92 Cal. App. 62, 267 Pac. 937, relied on by respondents, are also distinguishable as in those cases the contracts provided for a division of the proceeds arising from the sale of the crops and not, as here, for a division of the crops themselves. Respondents further contend that inasmuch as the contract contained the following provision:\\n\\\"It is further covenanted and agreed that until the delivery of the grain and other crops to the party of the first part as aforesaid, during the continuance of this contract, the legal title to, and ownership and possession of all of the grain raised during each and every year shall be and remain in the party of the first part.\\\"\\na distinction was made between the grain and other crops, and that the title to the grain only having been expressly reserved, no title was reserved as to the other crops. However, it is to be noted that the title to all of the grain raised is reserved until the delivery of the grain and other crops as provided in the contract. This reservation of title to all of the grain was evidently intended to be in the nature of security to compel a proper division of the crops and continued only until the crops were divided, and in no way modified or limited the provisions for division of the crops, and is not subject to the construction sought to be placed on it by respondents.\\nThe following conclusions are justified from the foregoing: Appellant was a tenant in common with the McClouds of the crops raised on the premises in 1930- the relationship created was therefore not in the nature of an equitable chattel mortgage as contended by respondents and as found by the trial court; appellant, under the circumstances of this case, was entitled to maintain an action for the recovery of its share of the specific crops or the value thereof against the McClouds or any person to whom they had attempted to sell the same (38 Cyc. 89; note, 26 A. L. R. 1021; Adams v. Thornton, 5 Cal. App. 455, 90 Pac. 713), and was not limited to an action for damages.\\nAppellant being the owner of one-half of the crop in question, the McClouds attempted to sell property in which they had no title. The principle is well settled that a seller of personal property can convey no greater title than he had, and it makes no difference that the purchaser has no notice and is ignorant of the existence of other parties in interest. (7 R. C. L. 886; Klundt v. Bachtold, 110 Wash. 594, 188 Pac. 924; Tuttle v. Campbell, 74 Mich. 652, 42 N. W. 384, 16 Am. St. 652; Trustees v. Williams, 102 Wis. 223, 75 N. W. 954, 69 Am. St. 912; Waterford Irr. Dist. v. Turlock Irr. Dist., 50 Cal. App. 213, 194 Pac. 757.) One who buys property must, at his peril, ascertain the ownership; and if he buys of one having no authority to sell, his taking possession in denial of the owner's right is a conversion. (2 Cooley on Torts, p. 506; 7 R. C. L. 879, 887. See, also, I. C. A., sec. 62-207, to the same effect.) While it therefore becomes unnecessary to determine whether Shields and Gannon, in purchasing the seed in question, had either actual or constructive notice of the interest of appellant therein, the record furnishes sufficient evidence to warrant the conclusion that they did have notice of appel lant's ownership of the property and furthermore that they had sufficient information to put them on notice.\\nWe are in accord with appellant's contention that the trial court erred in not awarding judgment against McCloud for the value of appellant's share of the crops. Regardless of the liability of Shields and Gannon, it is logical that if the share of the crops themselves cannot be recovered, the McClouds, having converted it to their own use, are answerable to appellant for its value, and this is true not only as to the seed but also as to the other crops converted. In view of what has been said, wre are likewise of the opinion that the trial court erred in granting the motion of Shields and Gannon for nonsuit, and in dismissing the action.\\nThe judgment is reversed and the cause remanded, with instructions to enter judgment against Shields and Gannon and McCloud requiring them to deliver one-half of the seed raised upon the premises in 1930, or in the event delivery cannot be had, that a joint and several judgment be entered against them for the market value thereof; and to enter judgment against McCloud individually for one-half of the market value of the hay grown on the premises in 1930. Costs awarded to appellant.\\nGivens and Holden, JJ., and Koelsch, D. J., concur.\\nPetition for rehearing denied.\"}"

idaho/2348309.json

@@ -0,0 +1 @@
+"{\"id\": \"2348309\", \"name\": \"BENEWAH COUNTY CATTLEMEN'S ASSOCIATION, INC., an Idaho corporation, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF BENEWAH COUNTY, Jack A. Buell, County Commissioner; Norman L. \\\"Bud\\\" McCall, County Commissioner; George Mills, Jr., County Commissioner; Robert M. Baltz, Sheriff of Benewah County, and Peter J. Hutchinson, Prosecutor for Benewah County, Defendants-Respondents\", \"name_abbreviation\": \"Benewah County Cattlemen's Ass'n v. Board of County Commissioners\", \"decision_date\": \"1983-05-26\", \"docket_number\": \"No. 13516\", \"first_page\": \"209\", \"last_page\": \"220\", \"citations\": \"105 Idaho 209\", \"volume\": \"105\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:14:18.441663+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONALDSON, C.J., BAKES, J., and McFADDEN, J. (Ret.), concur.\", \"parties\": \"BENEWAH COUNTY CATTLEMEN\\u2019S ASSOCIATION, INC., an Idaho corporation, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF BENEWAH COUNTY, Jack A. Buell, County Commissioner; Norman L. \\u201cBud\\u201d McCall, County Commissioner; George Mills, Jr., County Commissioner; Robert M. Baltz, Sheriff of Benewah County, and Peter J. Hutchinson, Prosecutor for Benewah County, Defendants-Respondents.\", \"head_matter\": \"668 P.2d 85\\nBENEWAH COUNTY CATTLEMEN\\u2019S ASSOCIATION, INC., an Idaho corporation, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF BENEWAH COUNTY, Jack A. Buell, County Commissioner; Norman L. \\u201cBud\\u201d McCall, County Commissioner; George Mills, Jr., County Commissioner; Robert M. Baltz, Sheriff of Benewah County, and Peter J. Hutchinson, Prosecutor for Benewah County, Defendants-Respondents.\\nNo. 13516.\\nSupreme Court of Idaho.\\nMay 26, 1983.\\nRehearing Denied Sept. 8, 1983.\\nJerrold E. Park, St. Maries, William H. O\\u2019Riordan, Boise, for plaintiff-appellant.\\nThomas C. Morris, St. Maries, for defendants-respondents.\", \"word_count\": \"6355\", \"char_count\": \"38634\", \"text\": \"SHEPARD, Justice.\\nThis is an appeal from a judgment in an action brought in the nature of a declaratory judgment seeking to have declared invalid a county ordinance which prohibited livestock from running at large, from grazing on property other than that of the owner, and requiring the erection and maintenance of fences by owners of livestock. The magistrate court found the ordinance to be valid, which holding was affirmed on appeal to the district court. Likewise, we affirm.\\nThe facts of this action are largely agreed upon and the only issues presented are questions of law. For at least 60 years, cattle and other livestock have freely roamed and grazed on unenclosed lands within Benewah County. At the initiation of this action there were some 57 cattle ranchers in Benewah County; many never fenced their lands and have allowed their cattle and livestock to freely graze and roam, although some ranchers have fenced their lands and allowed their livestock to graze only within their own fenced lands. Apparently, prior to the enactment of the ordinance in question, no ordinance prohibited livestock from running at large.\\nIn 1976 and 1977, drought conditions and a large addition to the number of cattle within Benewah County combined to aggravate already existing problems of stock running at large. The lower court found:\\n\\\"that livestock running at large in Benewah County create serious and persistent problems to the county and its inhabitants, including: (1) pollution of water sources, (2) damage or destruction of crops, hay, fences and gardens, (3) injury to persons and vehicles on roads and highways, (4) damage to cut banks, earthfills on timber harvest roads which have been closed and seeded to reduce soil erosion and damage, (5) damage to cleared planting lines where tree seed has been planted . .\\\"\\nIn August 1977, the Board of County Commissioners of Benewah County enacted the ordinance in question here (No. 13) entitled \\\"Benewah County Livestock Control Ordinance,\\\" which applies throughout Benewah County. The ordinance essentially prohibits the running at large of livestock, requires fencing around property upon which livestock is grazed, and provides criminal sanctions for violations. The ordinance expressly leaves unaffected civil liability arising from trespassing livestock. On this appeal, no question is raised as to the procedural validity of the adoption of the ordinance.\\nPlaintiff-appellant Benewah County Cattlemen's Association instituted the action, seeking a declaratory judgment that the ordinance was invalid and seeking an injunction against its enforcement. The cause was assigned to Magistrate Richard McFadden; in a well-reasoned opinion he upheld the validity of the ordinance and entered judgment accordingly. That judgment was affirmed on appeal to the district court.\\nOn appeal to this Court, appellant cattlemen assert that the county has no authority to prohibit \\\"open range grazing\\\" through out the county, except and unless herd districts are created pursuant to I.C. \\u00a7 25-2401 through 25 \\u2014 2409; that the area of control of free roaming livestock has been preempted by legislative enactments, hence the ordinance conflicts with the general law of the state in violation of Idaho Constitution, art. 12, \\u00a7 2; that the ordinance is invalid as purporting to extend its effect beyond the geographic limits of the county, and finally, that the ordinance is unfair, arbitrary and unreasonable in its application to the cattlemen.\\nThe Idaho Constitution, art. 12, \\u00a7 2 provides, in pertinent part: \\\"Any county . . may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws.\\\" The legislature in I.C. \\u00a7 31-714 has elaborated on the constitutional grant of police power to counties, stating:\\n\\\"[t]he board of county commissioners may pass all ordinances . not repugnant to law . such as are necessary or proper to provide for the safety, promote the health and prosperity, improve the morals, peace and good order, comfort and convenience of the county and the inhabitants thereof, and for the protection of property therein, and may enforce obedience to such ordinances with such fines or penalties as the board may deem proper .\\\"\\nThis Court, in interpreting the broad statutory and constitutional powers granted to county commissioners to enact ordinances in furtherance of police powers, stated in State v. Clark, 88 Idaho 365, 399 P.2d 955 (1965), that:\\n\\\"there are three general restrictions which apply to legislation under the authority conferred by [ID. CONST, art. XII, \\u00a7 2]: (1) the ordinance or regulation must be confined to the limits of the governmental body enacting the same, (2) it must not be in conflict with other general laws of the state, and (3) it must not be an unreasonable or arbitrary enactment.\\\"\\nAs noted above, appellant cattlemen argue that the ordinance in question is invalid under the language of State v. Clark, id., in that it purports to extend application of the ordinance beyond the geographical limits of the county. We disagree. The ordinance does not purport to, nor can it affect or regulate matters occurring outside Benewah County. Should livestock from outside the county wander into lands within the county, they would then come under the jurisdiction of Benewah County and be subject to its valid ordinances. The fact that their owners may reside outside the county will not alter the result. Although the appellant cattlemen argue that a county must comply with herd district statute I.C. \\u00a7 25-2402 by enclosing itself with fences before enacting an ordinance such as the one at issue here, we disagree for the reasons stated below in our discussion relating to the non-application of the herd district statutes.\\nAppellant cattlemen argue that since the ordinance does not expressly exempt the areas of incorporated cities within the boundaries of the county and does mention city police officers as officials charged with the enforcement of the ordinance, it constitutes an attempt by the county to exercise authority over lands located within incorporated cities and is thus void. We agree with appellants to the extent that the ordinance is without force and effect within the limits of the incorporated municipalities located in Benewah County. However, as noted in this Court's recent decision in Hobbs v. Abrams, 104 Idaho 205, 657 P.2d 1073 (1983), such does not invalidate the ordinance nor make it ineffective in the balance of the county. See also Clyde Hess Distributing Co. v. Bonneville County, 69 Idaho 505, 210 P.2d 798 (1949).\\nWe turn now to appellant's assertion that the ordinance is invalid in that it conflicts with the general laws of the state. The principal argument is that the legislature, by the enactment of herd district statutes, I.C. \\u00a7 25-2401 through 25-2409, has preempted the field of control of free roaming livestock. Hence the county is prohibited from attempting to legislate on the same subject matter. At bottom appellant's position is that since livestock have for many years freely ranged and roamed within Benewah County regardless of the ownership or nature of the lands, the county may not protect its citizens and their lands and property against such livestock through the exercise of the police power. We emphatically disagree. We hold first that the legislature has not preempted the field of livestock control as asserted by the appellants; secondly, even assuming some legislative exercise of livestock control, we hold that extension or amplification of that control by county ordinance is not prohibited in the absence of constitutional or statutory provisions clearly evidencing intent on a statewide basis to permit livestock to freely roam and graze regardless of the ownership or the character of lands. We are cited to and find no such specific constitutional or legislative intent. We refrain from speculating upon the constitutional problems which might arise from the enactment of such legislation and \\u00e1 claim that it unconstitutionally deprived an owner of his property in violation of the due process clause.\\nAppellants' contention that the ordinance conflicts with the general laws of the state, particularly the herd district statutes, I.C. \\u00a7 25-2401 through 25-2409, is largely answered by the recent opinion of this Court in Maguire v. Yanke, 99 Idaho 829, 590 P.2d 85 (1978). In Yanke, this Court exhaustively examined the law relating to herd districts and held that since 1963 the herd district statutes have not applied to \\\"open range,\\\" i.e., \\\"all uninclosed lands outside cities and villages upon which by custom, license or otherwise, livestock, excepting swine, are grazed or permitted to roam.\\\" I.C. \\u00a7 25-2402. The Court in Yanke stated:\\n\\\"Prior to 1963, I.C. \\u00a7 25-2402 contained no definition of 'open range.' Herd districts were allowed to be created in any part of this state . In 1963, as was previously discussed, the legislature inserted a definition of 'open range' in I.C. \\u00a7 25-2402 and stated that herd districts could not be created in such area . It is clear the amendment of I.C. \\u00a7 25-2402 by the inserting of a definition of 'open range' was designed to protect the rights of livestock owners by prohibiting herd districts in areas where they historically grazed stock, rather than limiting the area where livestock owners were free to let their stock roam at large. Under our decision, herd districts may still be created in any area not within 'open range' as defined in I.C. \\u00a7 25-2402.\\\"\\nIn the instant case the unenclosed lands within Benewah County but outside cities and villages clearly fall within the definition of \\\"open range.\\\" The magistrate so found and the evidence supports that finding; indeed it is uncontroverted. Hence, the county had no authority to create a herd district.\\nAppellant argues, nevertheless, that requiring livestock owners to fence in their livestock creates a de facto herd district. We disagree. Herd districts may not be created sua sponte by a county but only in response to a petition of a majority of the landowners within a certain area. The creation of a herd district imposes civil liability upon livestock owners when their stock trespasses on the land of another. In contrast, the ordinance here expressly provides that it shall not apply to the resolution of any civil liability, stating:\\n\\\"Nothing in this ordinance is to be construed as imposing strict liability in tort against a violator. Any civil action arising from livestock running at large is to be determined on the basis of the laws pertaining to civil actions and not on the basis of a violation of this ordinance; anything contained in this ordinance to the contrary notwithstanding.\\\"\\nHence, we hold that the purpose and effect of the ordinance in question here are different from the purpose and effect of a herd district; we therefore reject appellants' assertion that the ordinance constituted the de facto creation of a herd district.\\nWe hold that the herd district statutes were not intended to preempt, and do not preempt, the field of livestock regulation so as to preclude local regulation. Herd district statutes which by their own terms are inapplicable to \\\"open range\\\" areas do not preempt the field of livestock control in such areas. Cf. Turnage v. Gibson, 211 Ark. 268, 200 S.W.2d 92 (Ark.1947); Smith v. Plant, 179 Ark. 1024, 19 S.W.2d 1022 (Ark.1929); Sheridan v. Washington Parish Police Jury, 67 So.2d 110 (La.Ct.App. 1953). As noted by the Court in Maguire v. Yanke, 99 Idaho 829, 590 P.2d 85 (1978), the creation of a herd district provides \\\"an alternative to landowners who wish to protect their land from damage caused by roaming stock . \\\" Within the legislative contemplation was a process whereby a majority of the landowners in an area could compel the county to create herd districts and thereby place upon livestock owners within such districts the duty to fence in their stock. We find nothing in that statutory scheme indicating counties may not exercise their police power to control roaming livestock, but rather must ignore any problems and wait until action is forced upon the county by the presentation of a petition for the formation of a herd district.\\nWe further note that, even if it be assumed for the purpose of discussion that the herd district statutes in some degree addressed the same problems as those addressed by the county ordinance, local enactments which merely extend the state law by way of additional restrictions or limitations are not invalid. State v. Clark, 88 Idaho 365, 399 P.2d 955 (1965); Gartland v. Talbott, 72 Idaho 125, 237 P.2d 1067 (1951); State v. Poynter, 70 Idaho 438, 220 P.2d 386 (1950); Clyde Hess Distributing Co. v. Bonneville County, 69 Idaho 505, 210 P.2d 798 (1949).\\nAlthough appellant claims that the ordinance contravenes I.C. \\u00a7 40-702, which allows counties to create trails for cattle drives and simultaneously close highways to use for such drives, we disagree. We find nothing in the language of the ordinance which prohibits cattle drives since it proscribes allowing livestock to run \\\"at large\\\" and under the terms of the ordinance livestock are not \\\"at large\\\" if they are under the \\\"immediate effective control\\\" of their \\\"custodian.\\\" Appellant also argues that the ordinance conflicts with I.C. \\u00a7 25-2118, which provides that owners of animals in open range areas are not liable for damages when such animals are struck by vehicles operating on public highways. Again, we disagree since the ordinance expressly disclaims any intention to effect tort liability-\\nIn conclusion, we hold: in the absence of a state legislative enactment clearly indicating that livestock must be free to roam the lands of Idaho uninhibited by the ownership or character of the lands, counties and municipalities may validly exercise their police powers to prohibit such free roaming livestock. As was well stated by Bakes, J., dissenting in Maguire v. Yanke, 99 Idaho 829, 590 P.2d 85 (1978):\\n\\\"The open range laws resulted from the unique conditions existing during the early days of the western development when vast areas of grazing land and the sparse population then living in the area made it more practical to fence animals out of the relatively small sections of land devoted to farming than to fence cattle in on the larger grazing ranges. However, conditions in Idaho have changed substantially. This Court should not expand liability rules tailored for nineteenth century open range practices . when the conditions for which they were developed have substantially passed.\\\"\\nFinally, appellants argue that compliance with the ordinance would be burdensome in that appellants would be required to spend large sums of money in fencing their lands. For that reason, it is argued, the ordinance is unreasonable and arbitrary. See State v. Clark, 88 Idaho 365, 399 P.2d 955 (1965). The policy determinations of legislative bodies as to how best to solve problems is best left with the discretion of the legislative body and should not be interfered with by the judiciary. We find nothing arbitrary, capricious or unreasonable in the effect of the ordinance such as to make the county commissioners' exercise of discretion subject to judicial review. Local authorities exercise their police power almost daily in the enactment of ordinances which may cast a financial burden on some of their constituents when it is perceived that such will rebound to the general welfare. Ordinances against outhouses or the maintenance of septic tanks may result in financial burdens upon householders. But if such actions are for the benefit of the general welfare, the mere fact of casting financial burdens upon some who must comply does not necessarily render such ordinances unreasonable or arbitrary. The decision as to imposing financial burdens and upon whom they shall fall is one involving policy and the exercise of our political form of government. The solution lies at the ballot box rather than with the courts.\\nThe judgments of the lower courts are affirmed and the cause is remanded for the dissolving and termination of the restraining orders and stays entered by the lower courts. Costs to respondents. No attorney fees for this appeal.\\nDONALDSON, C.J., BAKES, J., and McFADDEN, J. (Ret.), concur.\\n. In the event that the ordinance did not apply equally to livestock owned by Benewah County residents and livestock owned by nonresidents of Benewah County, it has been held that such unequal treatment constitutes a violation of the equal protection clause of the fourteenth amendment. Ramsey v. Martin, 111 Fla. 798, 150 So. 256 (Fla.1933); Motes v. Hagan, 101 Fla. 995, 132 So. 676 (Fla.1931); Teuton v. Thomas, 100 Fla. 78, 129 So. 330 (Fla.1930).\"}"

idaho/2350461.json

@@ -0,0 +1 @@
+"{\"id\": \"2350461\", \"name\": \"Dorothy BODINE, Plaintiff-Appellant, v. Loren BODINE, Defendant-Respondent\", \"name_abbreviation\": \"Bodine v. Bodine\", \"decision_date\": \"1983-10-03\", \"docket_number\": \"No. 14625\", \"first_page\": \"477\", \"last_page\": \"486\", \"citations\": \"105 Idaho 477\", \"volume\": \"105\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:14:18.441663+00:00\", \"provenance\": \"CAP\", \"judges\": \"BISTLINE and HUNTLEY, JJ., concur.\", \"parties\": \"Dorothy BODINE, Plaintiff-Appellant, v. Loren BODINE, Defendant-Respondent.\", \"head_matter\": \"670 P.2d 884\\nDorothy BODINE, Plaintiff-Appellant, v. Loren BODINE, Defendant-Respondent.\\nNo. 14625.\\nSupreme Court of Idaho.\\nOct. 3, 1983.\\nE. Don Copple of Davison, Copple, Copple & Copple, Boise, for plaintiff-appellant.\\nStanley W. Welsh of Clemons, Cosho & Humphrey, Boise, for defendant-respondent.\", \"word_count\": \"5977\", \"char_count\": \"35722\", \"text\": \"DONALDSON, Chief Justice.\\nThe parties were separated in 1975 and at the time of the divorce in March of 1976, they entered into a property settlement agreement. Following the divorce, the wife, Dorothy Bodine, brought this suit as an independent action. She contends that in the course of their negotiations her husband, Loren Bodine, misrepresented the value of their property.\\nThe trial court granted summary judgment in favor of the husband. In the district court's written opinion and order granting the summary judgment, the court stated that while there was no genuine issue as to the identity and disclosure of the property owned by the parties at the time of the negotiations, an issue did exist as to whether the property values given by the husband were fair and accurate. While discussing the possibility of fraud the trial judge found that \\\"a claim by the wife under circumstances existing in the instant case that the property values provided by the husband were not accurate does not justify setting aside the property-settlement agreement.... I conclude, therefore, that on the present record there is no genuine issue as to any material fact and the Defendant is entitled to Summary Judgment.\\\" The plaintiff-wife appealed this decision.\\nThe Court of Appeals reversed the trial judge's decision and remanded the case in light of the recent Idaho Supreme Court case of Compton v. Compton, 101 Idaho 328, 612 P.2d 1175 (1980), which was released two months after the district court granted summary judgment in favor of the husband-defendant. The Court of Appeals held that the district court was too restrictive when it concluded that relief from a property settlement agreement must be denied by summary judgment when parties occupy adversary positions and are represented by legal counsel. The Court of Appeals then directed the trial court to consider other factors that were addressed in Compton in order to determine whether summary judgment should be granted.\\nThe parties in this action have treated the property settlement agreement as though it were merged into the divorce decree. Therefore, in order for the wife to attack the judgment, since the time limitations have run for other avenues of review, she must show an extreme degree of fraud. Compton, supra. As stated in Compton, \\\"[t]here is no expressed time limit . with respect to the independent action to relieve a party from judgment.\\\" 101 Idaho at 334, 612 P.2d at 1181. This Court in Compton also stated, however, that an independent action \\\"will lie only in the presence of an extreme degree of fraud,\\\" 101 Idaho at 335, 612 P.2d at 1182, and that \\\"to survive husband's motion for summary judgment the burden rests with wife, as challenging party in this case, to allege such fraud as to support an independent action for relief from judgment.\\\" 101 Idaho at 336, 612 P.2d at 1183.\\nOn a motion for summary judgment the trial court and an appellate court must construe all facts and inferences most favorably toward the party opposing the motion. If a genuine issue of material fact remains unsolved, summary judgment is improper. Taylor v. Choules, 102 Idaho 222, 628 P.2d 1056 (1981). Neither the district nor an appellate court can weigh the facts to determine the issues.\\nAs stated, the trial judge found that \\\"a claim . that the property values provided by the husband were not accurate does not justify setting aside the property-settlement agreement.\\\" However, an examination of the evidence in a light most favorable towards the wife shows that she did more than claim that the value the husband attached to the property was inaccurate. Rather, she stated in an affidavit that she discovered the fair market value of the property at the time the agreement was entered into was $1,650,000.00 and that her husband, Mr. Bodine, had represented to her attorney that the community property was valued at $446,000.00 and that the representation of $446,000.00 \\\"was totally false and made by the Defendant with the intent to deceive and defraud me.\\\" Also, at the time of the divorce she allegedly was under the care of a psychiatrist and, with her husband's knowledge, she was taking medication prescribed by her psychiatrist to sedate her. This evidence is all relevant to the fraud issue.\\nThe Court of Appeals reversed and remanded for the trial court to reconsider the motion for summary judgment in light of Compton. However, an examination of this evidence in a light most favorable to the wife indicates that as a matter of law a genuine issue of material fact does exist, thus precluding the granting of a summary judgment motion. Therefore, we reverse the trial court's decision and remand for a trial on the issue.\\nCosts to appellant Dorothy Bodine.\\nNo attorney fees on appeal.\\nBISTLINE and HUNTLEY, JJ., concur.\"}"

idaho/2350786.json

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+"{\"id\": \"2350786\", \"name\": \"Roy Dean HOLLOWAY, Plaintiff-Appellant, v. E.C. PALMER, individually, and as Sheriff of Ada County, Idaho, and R.W. Christensen, Dick Chastain, Hugh Brady, Dave Sarvis, and Matt O'Rourke, Jr., individually and as Commissioners of the Ada County Sheriff's Deputies Merit System, Defendants-Respondents\", \"name_abbreviation\": \"Holloway v. Palmer\", \"decision_date\": \"1983-06-03\", \"docket_number\": \"No. 14031\", \"first_page\": \"220\", \"last_page\": \"233\", \"citations\": \"105 Idaho 220\", \"volume\": \"105\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:14:18.441663+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONALDSON, C.J., and HUNTLEY, J., concur.\", \"parties\": \"Roy Dean HOLLOWAY, Plaintiff-Appellant, v. E.C. PALMER, individually, and as Sheriff of Ada County, Idaho, and R.W. Christensen, Dick Chastain, Hugh Brady, Dave Sarvis, and Matt O\\u2019Rourke, Jr., individually and as Commissioners of the Ada County Sheriff's Deputies Merit System, Defendants-Respondents.\", \"head_matter\": \"668 P.2d 96\\nRoy Dean HOLLOWAY, Plaintiff-Appellant, v. E.C. PALMER, individually, and as Sheriff of Ada County, Idaho, and R.W. Christensen, Dick Chastain, Hugh Brady, Dave Sarvis, and Matt O\\u2019Rourke, Jr., individually and as Commissioners of the Ada County Sheriff's Deputies Merit System, Defendants-Respondents.\\nNo. 14031.\\nSupreme Court of Idaho.\\nJune 3, 1983.\\nRehearing Denied Sept. 8, 1983.\\nFrank W. Stoppello, Boise, for plaintiff-appellant.\\nGreg Bower, Pros. Atty., and Scott L. Campbell, Deputy Pros. Atty., James J. Davis, of Eberle, Berlin, Kading, Turnbow & Gillespie, Boise, for defendants-respondents.\", \"word_count\": \"7850\", \"char_count\": \"49124\", \"text\": \"BISTLINE, Justice.\\nOn September 14, 1978, Roy Dean Holloway was terminated from his position as sergeant with the Ada County Sheriff's Department (hereafter Department). Sgt. Holloway had been a member of the Department for four and one-half years prior to his termination and was undisputedly considered an officer in good standing prior to that time. In addition to being an officer with the Department, Sgt. Holloway had also been elected President of the Ada County Deputy Sheriff's Union in December of 1977, which Union consisted of fifty- five members of the Department. The events which culminated in Sgt. Holloway's dismissal began with the Union's decision to sponsor a fund raiser, the proceeds of which were to be used to establish a fund to assist law enforcement officers who had suffered personal losses and to donate to local organizations dealing with deterrence, correction and rehabilitation of juvenile offenders.\\nOn August 15, 1978, the Union decided to sponsor a western show at the Western Idaho Fairgrounds called the Merle Haggard-Marty Robbins Western Show. On or about March 28, 1978, the Union, through Sgt. Holloway, sent a letter to Sheriff Palmer notifying him of its intent to sponsor a fund raiser, similar to fund raisers which had been sponsored by other groups in the Sheriff's office in earlier years. The letter informed Sheriff Palmer that telephone solicitation would be used as the means of promoting the fund raiser.\\nReceipt of this letter by Sheriff Palmer prompted a meeting between the Sheriff and Sgt. Holloway. At this meeting the Sheriff informed Sgt. Holloway of his dislike of telephone solicitations and of past problems involving adverse public reaction to telephone solicitations. The Sheriff made it clear to Sgt. Holloway that he did not agree with the proposed solicitation, that he would not permit it, and that he would use any means to stop it, even to the extent of going to the news media. The Sheriff did not warn Sgt. Holloway about any possibility of termination or other punishment which would result from proceeding with the proposed fund raiser.\\nIn August, the Union contracted with Wildwood Productions, Inc. (Wildwood), a known and reputable firm, which agreed to promote the show. The promoter, as an independent contractor, agreed to be solely responsible for the promotion and production of the show, which was to include the sale of advertising space in a souvenir booklet to businesses in the area, and the free distribution of the souvenir booklet to persons who attended the show. The contract required Wildwood to comply with all requests of the Union pertaining to the sales pitch used in the advertising solicitation and also required Wildwood to comply with all Boise City, Ada County, and State of Idaho laws, ordinances and regulations which applied to the sale of advertising and tickets and to the presentation of the show. Ticket and advertising sales were the source of revenue anticipated under the contract to finance the show and benefit the Union. Neither Sgt. Holloway nor any other Union deputy took any direct part in the promotion of the show or sale of advertising, other than to account for receipts.\\nOn or about August 25, 1978, Wildwood began contacting local businesses. No local solicitation license had been obtained at that time.\\nOn August 30, 1978, Sgt. Holloway was called to the Sheriff's office to discuss the promotion and the sales pitch used by Wild-wood. The Sheriff told Sgt. Holloway that citizens had complained about the sales pitch and that the solicitors were representing that the funds were to be used for a \\\"burnout fund\\\" and were making other inaccurate statements. Although not entirely clear from the record, it appears that the Sheriff also told Sgt. Holloway at that time that Wildwood had been operating in violation of the Boise City Code by soliciting without a license. The Sheriff told Sgt. Holloway that if the Union was going to go around him and proceed with the solicitation, it had to be legal, and that the solicitors could not use the Department's name. The Sheriff told Sgt. Holloway to take county time, if necessary, but to get the thing straightened out. That same day, in compliance with the Sheriff's request, Sgt. Holloway notified Wildwood of the Sheriff's problems and criticisms and asked that the problems be corrected. That day, Wild-wood made its application for a license to the Boise City License Commission. The following evening, August 31, 1978, a hearing was held before Mr. Keith Kendall of the License Commission. No decision on the requirement of a license was made at that time and Wildwood was not asked to discontinue its promotion until a decision was made thereon.\\nOn September 7, 1978, Sgt. Holloway again met with Sheriff Palmer. The Sheriff criticized the sales pitch used by Wild-wood. The Sheriff asked one of his officers to call and record the exact language being used to sell the advertising. The Wildwood employee who responded to this telephone call stated \\\"Pm calling for the Sheriff's Department and the Sheriff's Deputies Union . \\\"\\nImmediately thereafter, Sgt. Holloway contacted the principals of Wildwood and again asked that Wildwood not make any reference to the Sheriff himself or to the Department. In addition, he composed a letter which again spelled out a proper format which would comply with Sheriff Palmer's wishes.\\nThe next day, September 8, 1978, Wild-wood was informed that the License Commission had approved its application for a license but that a $5,000 cash bond would have to be posted. Because the Union could not immediately supply such a bond, Wildwood immediately terminated its solicitation campaign.\\nSix days later on September 14, 1978, Sgt. Holloway was on duty when he was called to the office of Sheriff Palmer. As he stepped into the office, Sgt. Holloway was handed his \\\"termination\\\" letter notifying him of his dismissal, \\\"effective immediately.\\\" The letter recited that Sgt. Holloway had violated a direct order to stop the promotion of the show, was continuing to engage in illegal solicitations, had been found to be in violation of a state statute, and was bringing the Department into disrepute. Sgt. Holloway responded that the solicitation by Wildwood had ended on September 8, and that no orders had ever been given regarding Wildwood's actions. The Sheriff then took back the letter and stated he would redraft it, but that Sgt. Holloway remained fired. Sheriff Palmer testified that he tore up the original termination letter and sent Sgt. Holloway a termination letter which deleted language referring to continuing solicitations.\\nShortly after Sgt. Holloway was fired, Greg Cornwall, vice-president of the Union, was approached by Personnel Director Larry Richards, and was told he would also have been fired if he had signed the contract executed between the Union and Wildwood.\\nSheriff Palmer admitted at the hearing that after the termination he had joked in front of some Boise City police officers that he could not find anyone to assume the presidency of the Union after he fired Sgt. Holloway.\\nAs required to preserve his rights under Ada County Ordinance Number 60, Sgt. Holloway appealed his termination to the Ada County Sheriff's Deputies Merit System Commission (hereafter Commission). Subsequent to the filing of that appeal and before the hearing before the Commission, Sgt. Holloway brought an action in the district court against the Commission and Sheriff Palmer, alleging violation of his constitutional rights by the termination and requesting a preliminary injunction to prohibit the Commission from hearing the case. The district court refused to enjoin the hearing before the Commission, but ruled that the complaint would not be dismissed and that the court would later hear the complaint if Sgt. Holloway was not satisfied with the outcome of the hearing before the Commission.\\nAfter a hearing on November 14 and 15, 1978, the Commission issued its decision. Three members of the five member Commission upheld the termination of Sgt. Holloway, one member dissented and one member was absent from the hearing. Sgt. Holloway then filed an amended complaint in the district court which included a second count requesting a review of the Commission's decision, attorney's fees, and damages. Pursuant to a stipulation of the parties, the district court heard the second count as a writ of review. In its decision of July 7,1980, the district court remanded the matter to the Commission for additional findings:\\n\\\"I am unable to determine whether there is substantial evidence to support the findings of the Commission, and whether reasonable minds might accept the evidence as adequate to support the same, because I conclude that the findings of the Commission are not sufficiently clear and concise. There is not, in my opinion, a sufficient adjudication of exactly what activity of the petitioner was objectionable, nor what statute, ordinance, established policy, rule or regulation, (whether Sec. 48-603(a) of the Idaho Code, and/or others) proscribed such activity. I must conclude as a matter of law that the findings are not sufficiently extensive and exacting to support the Commission's conclusions that the Plaintiff's employment was terminated in good faith and for cause. The findings leave open to speculation the question of the nature of the 'involvement of the Plaintiff'; the nature of the 'activity which the Plaintiff was so involved in'; the nature of the 'public criticism' resulting therefrom; etc.\\\"\\nA motion to amend this order was immediately filed by Sgt. Holloway on the basis that the \\\"Merit Commission is no longer in existence and therefore without authority to enter additional findings of fact.\\\" On October 6, 1980, the district court found that a remand would indeed be ineffective because the Commission was no longer in existence.\\nOn December 22, 1980, the district court substituted its own findings of fact for those of the Commission and concluded as a matter of law that Sgt. Holloway had been terminated for cause and in good faith. The district court thereby affirmed the Merit Commission decision.\\nI. SCOPE OF REVIEW\\nIn Local 1494 v. City of Coeur d'Alene, 99 Idaho 630, 586 P.2d 1346 (1978), this Court determined the scope of district courts' judicial review of agency decisions. That case involved a dispute between the City of Coeur d'Alene and Local 1494 of the International Association of Firefighters, the collective bargaining agent for seventeen firefighters who were terminated for their participation in a strike against the City. The Civil Service Commission held a public hearing and issued a decision finding that the strike was illegal and that the discharge of the firefighters was justified. The Commission's decision was conclusory and incomplete in form setting forth no factual basis to support its ultimate conclusion that the City acted in good faith and for cause. The district court on appeal entered its own findings of fact and conclusions of law. This Court reviewed the district court procedure under the substantial evidence rule which \\\"is said to be a 'middle position' which precludes a de novo hearing but which nonetheless requires a serious review which goes beyond the mere ascertainment of procedural regularity.\\\" Id. at 633, 586 P.2d at 1349 (emphasis added). \\\"[T]he substantial evidence rule requires a court to determine 'whether [the agency's] findings of fact are reasonable.'\\\" Id. at 634, 586 P.2d at 1350 (citing 4 Davis, Administrative Law Text \\u00a7 29.01-02 at 525-530). In Local 1494, we held that this substantial evidence standard is flexible with its application depending on such factors as: (1) the character of the administrative agency \\u2014 which in that case differed significantly from that of the major commissions having statewide jurisdiction; (2) the structural make-up and function of the agency, i.e., the degree of impartiality and disinterested justice which could be exercised by the agency; (3) the character of the agency, the roles committed to it by statute and the manner in which it functioned; and (4) the nature of the issue being reviewed. Applying these factors, we upheld the district court's liberal application of the substantial evidence rule in conducting a full and thorough review of the civil service determination. We held that the district court's substitution of findings of fact and conclusions of law for that of the Commission was proper:\\n\\\"On judicial review of a civil service commission determination, the district court is required to conduct a full review of the whole record and, where the commission's conclusions are unsupported by substantial evidence, its function encompasses stating, both for the benefit of the parties and this Court, its reasoning and conclusions which very well may but need not take the form of findings and conclusions. That is exactly what the trial court did in the present case. That the trial court, in rendering its appellate decision, did so by way of enumerated conclusions and enumerated findings, rather than in appellate opinion form, is without significance.\\\"\\nId. at 638, 586 P.2d at 1354 (emphasis in original).\\nThe district court in the present case properly exercised the type of appellate review contemplated in Local 1494. Applying the rule set forth in Local 1494, we hold that it was necessary for the district court to liberally apply the substantial evidence rule in conducting a full and thorough review of the agency record: (1) Like the Civil Service Commission in Local 1494, the agency here involved was a local commission unaccustomed to addressing problems of the magnitude of an alleged dismissal of a classified employee for union activities; (2) although the Commission had outward indices of impartiality, it was alleged by Sgt. Holloway that the Commission had failed to exercise or assume jurisdiction; that the Commission had delegated its authority to Sheriff Palmer; and that the Commission had failed to perform its obligation to adopt and publish rules and regulations. These allegations were at no time controverted by either the Merit Commission or Sheriff Palmer; (3) The nature of the issue involved in this case is one not within the expertise of the Commission. As we stated in Local 1494:\\n\\\"In the present case, the concern is not with an administrative/legislative type decision . within the expertise of a specialized agency but rather with . 'the right to a continual employment' . We have recently stated that such a right is a constitutionally protected property interest.\\\"\\nId. at 636, 586 P.2d at 1352.\\nAn additional factor in the present case is that, unlike in Local 1494, the district court did not have the opportunity to remand to the agency for more specific findings, the Commission becoming, defunct during the pendency of Sgt. Holloway's appeal to the district court.\\nLocal 1494 also established the scope of this Court's review of an agency decision. \\\"On appeal, it is our task to make the same review of the commission's action as did the district court in order to determine whether, on the whole record, the commission's decision was substantially supported by the evidence and by applicable law.\\\" 99 Idaho at 638, 586 P.2d at 1354. Under this standard, this Court is empowered to exercise the same type of appellate review as the district court is authorized to exercise over agency decisions. Accordingly, we must here make a full and thorough review of the Commission record to determine if there is substantial evidence to support the Commission's conclusion that Sgt. Holloway's dismissal was made for cause and in good faith.\\nII. REVIEW OF THE COMMISSION'S DECISION\\nThe Commission, in its Letter Memorandum Opinion dated November 17, 1978, determined that Sgt. Holloway was dismissed for cause and in good faith on the basis that:\\n\\\"Roy D. Holloway was employed and promoted by the Ada County Sheriff and functioned as a satisfactory employee until Mr. Holloway involved himself in an activity which created a condition of public criticism of the Ada County Sheriff's Department of which Mr. Holloway maintained control and responsibility.\\n\\\"The Ada County Sheriff is responsible for the conduct and integrity of the operations of the Ada County Sheriff's Department and a Manual of Conduct and Ethics sets forth required conditions of employee conduct. The Ada County Sheriff counseled and directed Mr. Holloway regarding the adverse effects and requested corrective measures of Mr. Holloway's action on multiple occasions. Contrary to the proper conduct of a prudent employee, Mr. Holloway failed to act in a proper manner in order to avoid conditions which would generate public criticism directed toward the Ada County Sheriff's Department and further failed to exert necessary and timely efforts within his authority, to terminate conditions generating aforementioned criticisms when identified and instructed by the Ada County Sheriff.\\n\\\"Mr. Holloway, the employee, had the responsibility to conduct himself in an appropriate manner as identified in the Manual of Conduct and Ethics. Mr. Holloway was the responsible individual for an adverse condition unacceptable to the proper conduct of the Ada County Sheriff's Department of which E.C. Palmer, Sheriff, is the responsible authority for such proper conduct. Mr. Holloway was advised to correct the identified cause of criticism. He failed to do so and was terminated, an action within, and appropriate of the authority of the Ada County Sheriff.\\n\\\"From the foregoing it is concluded as a matter of law that the dismissal was in good faith and for cause.\\\"\\nIn determining what constitutes cause within the meaning of Ada County Ordinance No. 60 \\u00a7 11, the Commission is constrained by the protections afforded an individual by the first amendment. Sgt. Holloway contends that he was terminated without cause for \\\"union activity\\\" in violation of his fundamental rights of free assembly and association guaranteed under the United States and Idaho Constitutions. If Sgt. Holloway was indeed terminated for union activities protected under the first amendment, his termination could not have been made with cause and must be reversed.\\nThe United States Constitution, Amendment 1, provides that:\\n\\\"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.\\\"\\nThe first amendment has been interpreted to protect individuals' rights to form and join labor unions and associations without fear of retaliation. Smith v. Arkansas State Highway Employers, Local 1315, 441 U.S. 463, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979); Arkansas State Highway Employees Local 1315 v. Kell, 628 F.2d 1099 (8th Cir.1980); New Orleans Steamship Ass'n v. General Longshore Workers, 626 F.2d 455 (5th Cir.1980), affirmed sub nom, Jackson Bulk Terminals, Inc. v. International Longshoremen's Ass'n, 457 U.S. 702, 102 S.Ct. 2673, 73 L.Ed.2d 327 (1982).\\n\\\"[T]he courts . have accepted a general proposition that public employees cannot be discharged for engaging in 'union activities.' Thus, if there is a discharge because of union membership, the general constitutional right of free association . and the free speech right . are correctly applied to invalidate the discharge, since there is no reason to distinguish a union from any other \\u2022 association.\\\"\\nHanover Township Federation of Teachers Local 1954 v. Hanover Community School Corp., 457 F.2d 456, 460 (7th Cir.1972).\\nIt has been established that \\\"[a]ll speech, press, and associational relationships are presumptively protected by the first amendment; the burden rests on the government to establish that the particular expressions or relationships are outside its reach.\\\" Bursey v. United States, 466 F.2d 1059, 1082 (9th Cir.1972). \\\"[FJreedoms of speech and of press, of assembly, and of worship may not be infringed on [rational basis] grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests the state may lawfully protect.\\\" West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628 (1943) (emphasis added).\\nIt is this Court's duty to examine the record before the Commission to determine whether there is substantial evidence to support the Commission's determination that the Sheriff terminated Sgt. Holloway for cause and in good faith. In so doing, we must determine if the Sheriff met his burden of demonstrating that the actions of Sgt. Holloway presented such a \\\"grave and immediate danger\\\" to legitimate state interests as to constitute cause for his dismissal.\\nA. Public Criticism\\nOne of the grounds stated by the Commission for upholding Sgt. Holloway's dismissal was that \\\"Mr. Holloway involved himself in an activity which created a condition of public criticism of the Ada County Sheriff's Department . \\\" The Sheriff testified before the Commission that he received complaints from citizens that they were confused by the solicitation and did not know whether the Union was sponsoring the fund raiser or whether the Department was sponsoring it. However, it is uncontroverted that the Sheriff had received similar citizen complaints when fund raisers were previously sponsored by the Deputy Sheriff's Association and the Sheriff's Reserve, both of which are non-union organizations connected with the Sheriff's Department. All of the businesses contacted which ultimately purchased advertising space accurately made their checks payable to the Union rather than to the Sheriff's Department. Additionally, at least some of the controversy engendered by the solicitation was the result of erroneous statements made by the Sheriff himself. The following testimony was received at the Merit Commission hearing:\\n\\\"MR. O'ROURKE [Commissioner]: [I]t was reported in the news media, evidently at the time of this controversy, that the promoter did, in fact, leave town with the receipts and the show was cancelled and that somehow people were bilked out of funds. I don't know if that is something that was alluded to in the media or whether it was actually fact. Do you have any knowledge of that?\\n\\\"THE WITNESS [Sgt. Holloway]: I saw a television broadcast in that Sheriff Palmer said that these people had left town with $18,000....\\n\\\"MR. O'ROURKE: Do you think that Sheriff Palmer's statement there had impugned the character of the people in Wildwood Productions?\\n\\\"THE WITNESS: I believe so, yes.\\n\\\"MR. O'ROURKE: Do you also think that possibly some of the complaints were generated by Sheriff Palmer's comments?\\n\\\"THE WITNESS: I believe so....\\\" Sheriff Palmer admitted making such a comment:\\n\\\"Q. [By Mr. Stoppello to Sheriff Palmer] Well, did you not in fact, in front of Channel 7 news, make a statement after this promotion began in August that you understood that the proceeds from the advertising sales had left town? Did you ever make that statement?\\n\\\"A. [Sheriff Palmer] Yes.\\\"\\nIt is uncontroverted that Wildwood did not leave town with the funds and that the Union received all funds rightfully belonging to it from the fund raiser.\\nAlthough outwardly concerned with public criticism engendered by the solicitation, Sheriff Palmer never notified Sgt. Holloway that he would be disciplined or terminated if the source of the criticism continued. In fact he did not terminate Sgt. Holloway until six days after Wildwood had, on its own initiative, stopped the solicitation, thereby removing any grounds for any further public criticism of the Department. Sheriff Palmer originally handed Sgt. Holloway a termination letter which stated that Sgt. Holloway had failed to obey three direct orders and that to that date, September 14, 1978, the solicitation was continuing. Sgt. Holloway testified that:\\n\\\"I, you know, explained to him that no, the solicitation had been stopped last Friday, which was the 8th of September, was the last day that there was soliciting.\\n\\\"And he lined that out and said that if that's so, you know, I'll just redraft the letter and make it correct.\\\"\\nThe Sheriff failed to offer sufficient evidence to show that there had been any public criticism differing from that received when other non-union departmental organizations had previously sponsored fund raisers. There was insufficient evidence to show that the Sheriff was indeed concerned about unfavorable public criticism, having himself engaged in actions guaranteed to result in such criticisms. There was also insufficient evidence offered to support a finding that the Sheriff acted in response to the public criticism engendered by the fund raiser when he neither took action nor threatened Sgt. Holloway with any action during the course of the solicitation. Sheriff Palmer did not terminate Sgt. Holloway until six days after the solicitation had been stopped by Wildwood on its own initiative. It is thus clear that there is not substantial evidence to support a finding that any public criticism engendered by the solicitation constituted such a \\\"grave and immediate danger\\\" to a legitimate state interest that Sheriff Palmer had \\\"cause\\\" to terminate Sgt. Holloway.\\nB. Necessary and Timely Efforts\\nThe Commission upheld Sgt. Holloway's dismissal on the further ground that Sgt. Holloway \\\"failed to exert necessary and timely efforts within his authority, to terminate conditions generating aforementioned criticisms when identified and instructed by the Ada County Sheriff.\\\"\\nThere was no evidence presented to the Commission that Sgt. Holloway did not immediately act on each and every one of the Sheriff's requests or orders. There were three meetings at which the Sheriff voiced opposition to some facet of the solicitation scheme. At the first meeting, the Sheriff essentially told Sgt. Holloway not to go through with the telephone solicitation at all. However, this order or request was rescinded by the Sheriff at later meetings at which he told Sgt. Holloway that \\\"[i]f he was going to do it, he had to be legal.\\\" In response to the question by counsel for Sgt. Holloway: \\\"But he could go ahead with the promotion as long as it was legal?\\\" Sheriff Palmer answered, \\\"Yes, I guess he could. I couldn't stop him.\\\" After the second meeting on August 30,1978, Sgt. Holloway notified Wildwood of the Sheriff's complaints and requested that the cause of the complaints be rectified. It was at this time that Wildwood applied for a solicitation license with the Boise City License Commission. After the third meeting on September 7, 1978, Sgt. Holloway contacted Wild-wood and again asked that no reference be made in the solicitation to the Sheriff or the Department. In addition, he composed a letter which again spelled out a proper solicitation format which would comply with the Sheriff's wishes. The following day, the solicitation was discontinued by Wild-wood on its own initiative after it was notified that a $5,000 bond would have to be posted in order to obtain a license from the Boise City License Commission.\\nSix days after the solicitation was discontinued, on September 14, 1978, Sgt. Holloway was on duty when he was called to the office of Sheriff Palmer. As he. stepped into the office, Sgt. Holloway was handed his \\\"termination\\\" letter notifying him of his dismissal, \\\"effective immediately.\\\" The record clearly demonstrates that Sgt. Holloway did everything within his power to comply with the Sheriff's wishes and to not bring either the Sheriff or the Sheriff's Department into any disrepute. Thus, we hold that there is not substantial evidence to support the Commission's finding that Sgt. Holloway \\\"failed to exert necessary and timely efforts . to terminate conditions generating aforementioned criticisms when identified and instructed by the Ada County Sheriff.\\\" Therefore, the record cannot support a determination that there existed such a \\\"grave and immediate danger\\\" to legitimate state interests as to constitute \\\"cause\\\" for Sgt. Holloway's dismissal.\\nIII. INDEPENDENT REVIEW\\nUnder the rule established in Local 1494 this Court, upon a determination that an agency's decision is not supported by applicable law or by substantial evidence, must independently review the agency record to determine if there is any basis in law and fact to support its ultimate decision. If there is, we must uphold the Commission's decision and set forth the basis for so doing.\\nSheriff Palmer, in his termination letter of September 14,1978, gave Sgt. Holloway three reasons for his dismissal: (1) failure to obey a direct order; (2) violation of a state statute; and (3) conduct unbecoming an officer that brings the department into disrepute. It is unnecessary to readdress the first and third stated reasons, based on our foregoing determination that these reasons did not provide an adequate basis for Sgt. Holloway's dismissal.\\nThe letter apprising Sgt. Holloway of his termination stated:\\n\\\" Violation of state statute. Via your telephone solicitation scheme you have been found by the Idaho State Attorney General's Office to be in violation of certain sections of the Consumer Protection Act. Additionally you have been found to be in violation of the Boise City Municipal Code regarding licensing requirements for telephone solicitation.\\\"\\nOn September 15, 1978, one day after Sgt. Holloway's termination, the Idaho Attorney General's office wrote Sheriff Palmer a letter informing him that Wildwood had apparently violated the Consumer Protection Act:\\n\\\"Based upon information we have recently received, it appears that there are violations of the Idaho Consumer Protection Act in the solicitation of Wild-wood Productions, Inc., .\\n\\\"It would appear that Wildwood Productions, Inc., has unlawfully attempted to use the name of the sheriff's department to promote its solicitation, without stating who the real principals are. Please be advised that our office will continue to pursue this matter, and to seek restitution.\\\"\\nRespondent's Exhibit 11 \\u2014 Letter from Attorney General Wayne Kidwell to C.E. Palmer (September 15, 1978) (emphasis added).\\nAlthough this letter shows that Wildwood was apparently acting in violation of the Idaho Consumer Protection Act, it does not charge Sgt. Holloway or any other Union member with such violations. The record reflects that neither Sgt. Holloway nor any other Union member ever directly engaged in the solicitation themselves. The contract signed by Wildwood also provided that Wildwood would comply with all state laws relating to the sale of advertising. Sgt. Holloway never authorized Wildwood to implicate the Sheriff's Department in the fund raising. The evidence previously summarized in this opinion reflects that Sgt. Holloway, far from authorizing the sales pitch used by Wildwood, did everything in his power to ensure that Wildwood would represent that it was acting only on the behalf of the Union.\\nSgt. Holloway was never found to be in violation of the Boise City licensing requirements. On August 30, 1978, Sgt. Holloway was informed by the Sheriff that Wild-wood, by not having obtained a solicitation license, was probably acting in violation of the City's licensing requirements. That same day Wildwood applied for a license with the Boise City Licensing Commission. No decision on the license requirement was made at the time of the application and no request was made of Wildwood to discontinue its promotion until such time as a decision was made. On September 8, 1978, Wildwood was informed that a license was required together with a $5,000 bond. Un able to raise the $5,000 bond, Wildwood immediately discontinued the solicitation.\\nThere is no substantial evidence in the record to demonstrate that Sgt. Holloway violated either the Idaho Consumer Protection Act or the Boise City Code licensing requirements. Accordingly, the record cannot support a determination that there existed such a \\\"grave and immediate danger\\\" to legitimate state interests as to constitute \\\"cause\\\" for Sgt. Holloway's dismissal.\\nFor the foregoing reasons, we hold that there is not sufficient evidence in the record to uphold the Commission's ultimate determination that Sgt. Holloway was dismissed for cause and in good faith.\\nIV.\\nSgt. Holloway additionally argues that (1) the district court erred in not granting his petition to enjoin the Commission from determining the validity of his dismissal; (2) there was not a quorum of the Commission present to determine the validity of his dismissal; and (3) his dismissal without pretermination notice or an opportunity to respond violated his constitutional rights to due process. Given our holding in this case, we find it unnecessary to address these additional allegations.\\nThe judgment is reversed and remanded to the district court for entry of judgment of reinstatement with rank, seniority, benefits, privileges, and back pay (after taking into consideration any income earned in mitigation).\\nCosts to appellant.\\nDONALDSON, C.J., and HUNTLEY, J., concur.\\n. On or about August 25, 1978, Sgt. Holloway, as President of the Union, distributed a newsletter informing the Union membership that the Union intended to produce a fund raising concert. The letter also set forth the general sales pitch to be used by the promoter's sales personnel which specified that said personnel would state that they were \\\"calling for the Ada County Deputy Sheriff's Union.\\\" A copy of this newsletter was also given to Gary Allen of Wildwood Productions.\\n. Testimony was offered at the Merit Commission hearing that Wildwood did not obtain a local solicitation license because the work was being done on behalf of the nonprofit union chapter. Other local nonprofit groups, such as the Bronco Athletic Association and the Idaho Police Officers Association, which had previously sold similar advertising had not been required by the City to obtain solicitation licenses.\\n. In explaining the order given at the August 30th meeting, Sheriff Palmer testified as follows:\\n\\\"THE WITNESS: [Sheriff Palmer] Well my order at that time \\u2014 if I can explain, Mr. Boyd, he couldn't get the sheriffs office involved in it. No way could the sheriffs office be involved. And that was the order then.\\n\\\"Q. BY MR. STOPPELLO: Okay. But he could go ahead with the promotion as long as it was legal?\\n\\\"A. Yes, I guess he could. I couldn't stop him.\\\" (Emphasis added.)\\n. \\\"I must agree with Plaintiff that the remand, under the circumstances brought out on the hearing of this motion, is ineffective. It appears that Ada County Ordinance No. 60, which by its terms creates the Merit System Commission, contains the following language in Section 21: 'The provisions of this ordinance shall become operable for each fiscal year only after the prior approval of the Board of County Commissioners during the annual budget procedures of a table of organization describing the positions and salaries available in the sheriffs office for the ensuing year.' Plaintiff states that no such table has been submitted or approved for the current fiscal year, and that therefore the Merit Commission is no longer in existence and is without authority to enter additional findings of fact on remand. Defendant has not disputed the claim that Ordinance No. 60 has not been re-enacted by the Ada County Commissioners for the current year.\\\"\\nHolloway v. Palmer, No. 65702, Slip op. at 8 (Fourth Dist. Idaho 1980).\\n. In its October 6, 1980 opinion, the district court determined the scope of its review in light of the fact that a remand to the Commission would be ineffective thus:\\n\\\"[TJhis Court's order for remand must be amended. The Court will have to proceed to review the entire record before the Commission as it presently stands and enter its own findings of fact and conclusions of law, based upon substantial evidence in such record, the procedure approved by our Supreme Court in the Local 1494 case. It is the only practical solution to the dilemma presented here.\\\" Holloway v. Palmer, No. 65702, Slip Op. at 9-10 (Fourth Dist. Idaho 1980).\\n. The district court based its decision on the .record before the Commission. The district court did not hold a trial de novo or open the record for additional evidence.\\n. The Commission was composed of five persons consisting of two members appointed by the Sheriff, two members appointed by the Sheriffs deputies and one member appointed by the Ada County Commissioners.\\n. Ada County Ordinance No. 60 \\u00a7 11 provides: \\\"[N]o person in the classified merit system who has been permanently appointed or inducted into the merit system . shall be removed, suspended, or demoted, except for cause, in good faith . \\\" (Emphasis added.)\\n. The Idaho Constitution, Art. 1, \\u00a7 10, similarly provides that:\\n\\\"The people shall have the right to assemble in a peaceable manner, to consult for their common good; to instruct their representatives, and to petition the legislature for the redress of grievances.\\\"\\n. The Sheriff testified that many people who had purchased advertising complained that they were confused as to the identity of the sponsor of the show, however, he could only remember the name of one person in particular. The Sheriff testified that this person had said he was misled as to whether the Union or the Department was sponsoring the show. However, Sgt. Holloway introduced into evidence a check written by this same person to the \\\"Ada County Sheriffs Union,\\\" rather than to the Sheriffs Department.\\n. Sheriff Palmer testified at the Commission hearing that he had threatened Sgt. Holloway at their first meeting regarding the fund raiser that \\\"I said I would even go to the news media if it was necessary to stop him.\\\"\\n. There was no need for Sgt. Holloway to deliver this letter to Wildwood because by the next day, Wildwood had discontinued its telephone solicitation.\\n. Mr. Rourke, Merit System Commissioner, asked Sgt. Holloway the following question:\\n\\\"Were you ever, Mr. Holloway \\u2014 Sergeant Holloway, were you ever contacted by any law enforcement agencies, attorney general's office, city police department, concerning illegal activities resulting from the carrying on of this solicitation? In other words, were you ever informed by any law enforcement agency that you were being held responsible for a violation of the law?\\\"\\nTo which Sgt. Holloway replied \\\"No.\\\"\"}"

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+"{\"id\": \"2355535\", \"name\": \"Gerald MATTSON, Guardian ad Litem for Walter Wamsley, Christy Wamsley, Michele Wamsley, and Lilas Wamsley, Plaintiffs-Respondents, v. James C. BRYAN, Defendant-Appellant\", \"name_abbreviation\": \"Mattson v. Bryan\", \"decision_date\": \"1968-12-02\", \"docket_number\": \"No. 10016\", \"first_page\": \"587\", \"last_page\": \"595\", \"citations\": \"92 Idaho 587\", \"volume\": \"92\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T19:00:30.058226+00:00\", \"provenance\": \"CAP\", \"judges\": \"TAYLOR, McQUADE, McFADDEN and SPEAR, JJ., concur.\", \"parties\": \"Gerald MATTSON, Guardian ad Litem for Walter Wamsley, Christy Wamsley, Michele Wamsley, and Lilas Wamsley, Plaintiffs-Respondents, v. James C. BRYAN, Defendant-Appellant.\", \"head_matter\": \"448 P.2d 201\\nGerald MATTSON, Guardian ad Litem for Walter Wamsley, Christy Wamsley, Michele Wamsley, and Lilas Wamsley, Plaintiffs-Respondents, v. James C. BRYAN, Defendant-Appellant.\\nNo. 10016.\\nSupreme Court of Idaho.\\nDec. 2, 1968.\\nBrown, Peacock & Keane, Kellogg, for appellant.\\nPaul C. Keeton and D. K. Worden, Jr., Lewiston, for respondents.\", \"word_count\": \"4807\", \"char_count\": \"28715\", \"text\": \"SMITH, Chief Justice.\\nRespondents (plaintiffs) Wamsleys, minors, brought this action by their guardian ad litem for recovery of damages on account of the alleged wrongful death of their mother, Marian Wamsley, aged 38 years. The death of Mrs. Wamsley resulted January 15, 1966, when an automobile in which she was riding, driven by appellant (defendant) James C. Bryan, collided with a truck, driven by one Udell Anderson. The present appeal is from a judgment of $44,500 entered on the verdict returned by the jury against appellant in favor of respondents and from an order denying appellant's motion for a new trial.\\nMarian Wamsley divorced her husband, father of the children, during the year 1961. Mrs. Wamsley was the custodian of the children. Her income was -$240 a month which she received as child support money from her former husband. For some time prior to her death she had been attending a teacher's normal school or college in Lewiston, Idaho; she had not as yet received a teacher's certificate.\\nAppellant, a married man, had met Mrs. Wamsley two or three times prior to the night January 14-15, 1966. Appellant did not reveal his marital status to Mrs. Wamsley.\\nDuring the evening in question, appellant met Mrs. Wamsley about 9:00 p.m., in a Lewiston night club. Appellant testified Mrs. Wamsley had been drinking prior to her arrival at the club, and that while there he had a beer and she a mixed drink; that they then proceeded to Ahsahka, where they purchased three beers which they consumed in appellant's automobile; that they next proceeded to a club in Orofino where appellant had a beer and she a mixed drink; that upon leaving the club in Orofino, they parked a while at a closed service station, and then purchased gasoline at another station in Orofino; that during the return trip toward Lewiston, both slept from time to time, in appellant's car parked by the'side of the highway. Appellant further stated that while Mrs. Wamsley did not object to his driving, she did say, addressing appellant, \\\"You are sleepy and you are tired. Would you let me drive\\\"; and again, that she stated, \\\"she knew I was tired and says, 'How about me driving? Can I drive?' I said, 'no, I will drive my own car.' \\\"\\nAppellant further testified that as to the rest of the trip Mrs. Wamsley intermittently slept with her head on the front seat; that she was \\\"more or less intoxicated,\\\" and at the time of the accident he, appellant, did not know if Mrs. Wamsley was awake or asleep.\\nAt approximately 6:00 a.m. of January 15, appellant, proceeding in a westerly direction, on U. S. Highway 95 about 3 miles east of Lewiston, collided head-on with the truck. The accident occurred in the eastbound lane, which was appellant's left-hand, and wrong, lane of traffic. Mr. Anderson, driver of the truck, testified that appellant's automobile, after having been operated in an erratic manner, suddenly veered into his (Anderson's) lane of traffic, where the two vehicles came together. Both vehicles left skid marks \\u2014 the bread truck 32 feet 6 inches and appellant's vehicle 57 feet 6 inches.\\nAppellant testified he had no recollection of the cause of the accident; that the last he remembered Mrs. Wamsley was lying with her head on the front seat of his automobile. He stated he might have gone to sleep at the wheel or he might have \\\"blacked-out\\\"; that he had had blackouts as a result of a 1965 industrial accident; that these blackouts had occurred on one or two previous occasions while he was driving, but that Mrs. Wamsley had no knowledge of such affliction.\\nMr. Bishop, an investigating officer, testified that at the time and place of the collision, the road was very slick. Officer Bishop also stated that in his opinion appellant was intoxicated at the time of the accident.\\nRespondents, in their complaint, alleged that at the time of the collision Mrs. Wamsley was a passenger in a motor vehicle owned and operated by appellant and that the accident was the direct result of appellant's intoxication, his gross negligence in driving on the wrong side of the highway in the face of visibly oncoming traffic, and his failing to take even slight care to avoid the collision.\\nAppellant, in his answer, after denying the material allegations of the complaint, affirmatively pleaded that Mrs. Wamsley knew, or should have known, that appellant had imbibed intoxicating beverages immediately prior to the accident; that hence she assumed the risk of any injury in riding with appellant and such conduct was imputed to respondents; that she knew at the time of the accident appellant was sleepy or groggy and therefore she assumed the risk of any injury by riding with him, which conduct was imputed to respondents.\\nOn voir dire examination appellant's counsel asked a prospective juror whether he would be prejudiced against a married man going out with a woman not his wife. The trial court sustained respondents' objection to the question, which ruling appellant assigns as error.\\nAppellant contends that such ruling unduly restricted the scope of his voir dire examinations \\u2014 that because of the ruling he could not inquire into the juror's state of mind concerning the subject matter of the question. He points to evidence adduced at the trial which shows that he was a married man in company with a woman not his wife during the evening the accident occurred. He contends that such showing resulted in the jury being prejudiced against him, and that such prejudice contributed inter alia to the rather large amount of the verdict awarded in respondents' favor.\\nI.R.C.P. 47(a) provides that \\\"(t)he court shall permit the parties or their attorneys to conduct the examination of prospective jurors under its supervision.\\\" I.C. \\u00a7 19-1905 states that \\\"(t)rial juries for criminal actions are formed in the same manner as trial juries in civil actions.\\\"\\nThe basic rule on voir dire examination is set forth in the recent assault and battery case of State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967). Although that was a criminal case and the one here is a civil case, I.C. \\u00a7 19-1905 indicates that in this area no distinction is to be drawn on a criminal-civil basis. In that case, the trial judge sustained an objection to a question by counsel on voir dire examination as to whether a prospective juror entertained any bias or moral compunction about physical violence which would cause her to be prejudiced against one charged with aggravated battery. This Court in holding that such ruling did not constitute reversible error, stated:\\n\\\"The rule in this jurisdiction is that great latitude is allowed in the examination of veniremen upon their voir dire for the purposes of determining whether there is sufficient ground to challenge the veniremen for statutory cause, I.C. \\u00a7 19-2017 to. 19-2022, or whether it is expedient to challenge them peremptorily, I.C. \\u00a7 19-2015 and 19-2016. The scope of' voir dire, examination of veniremen in a criminal case, however, is a matter resting in the discretion of the trial court, the exercise of which will not be reversed except in case of abuse. State v. Miller, 60 Idaho 79, 88 P.2d 526; State v. Hoagland, 39 Idaho 405, 228 P. 314. See especially, Frame v. Grisewood, 81 Nev. 114, 399 P.2d 450 (1965) [a civil case].\\\"\\nIn State v. McKeehan, supra, counsel was permitted to ask jurors whether the mere charge of battery in itself .would prejudice them against the accused. The Mc-Keehan case thus is consistent with State v. Miller, supra, which held that the trial judge committed reversible error in sustaining an objection to a question regarding prejudice against the use of intoxicating liquors when the issue concerned driving while intoxicated. The rule emerges from those cases, that although interrogations on voir dire cannot require prospective jurors to take a particular view of evidence to be adduced at trial, the inquiries may ascertain whether the fact of the accusation of a particular offense elicits any prejudice on their part.\\nIn the case at bar the question of prejudice against a man consorting with a woman other than his wife did not concern the legal question of alleged gross negligence in the operation of a motor vehicle, but ' concerned certain other evidentiary facts which might later be adduced at trial. It now appears that it was important, from appellant's standpoint to ascertain, if possible, any personal prejudice or animosity that any one or more of the prospective jurors might have in event the evidence would disclose that appellant had been consorting with a woman other than his wife on the night the accident occurred. The record, however, fails to disclose that the fact such evidence might be adduced was ever called to the trial judge's attention; this is not contained in the pleadings. If appellant felt this was sufficiently important to securing a wholly unprejudiced and fair-minded jury, he should in some manner have acquainted the trial judge with the reason why it was deemed important that this particular question be answered. Without a showing that the trial court was thus timely advised, the ruling was not reversible error.\\nThis holding is in accord with those of other jurisdictions which have considered the effect of sustaining or overruling similar questions on voir dire. See 99 A.L. R.2d 7. In instances where the objections to questions concerning more or less immoral activities were sustained, the courts on review, have taken the view that jurors were being asked hypothetical questions which concerned facts which might be developed by the testimony at trial. See State v. Sheppard, 100 Ohio App. 345, 128 N.E. 2d 471, 60 Ohio Op. 298 aff'd 165 Ohio St. 293, 135 N.E.2d 340, 59 Ohio Op. 398, cert. den. 352 U.S. 910, 77 S.Ct. 118, 1 L.Ed.2d 119, reh. den. 352 U.S. 955, 77 S.Ct. 323, 1 L. Ed.2d 245 (Ohio 1955); Commonwealth v. Van Horn, 188 Pa. 143, 41 A. 469 (1898); Hughes v. State, 109 Wis. 397, 85 N.W. 333 (1901); People v. Rigney, 55 Cal.2d 236, 10 Cal.Rptr. 625, 359 P.2d 23, 98 A.L.R. 2d 186 (1961). Those cases have application to the present case wherein the evidence-developed the fact that appellant was a married man in company with a woman not his wife during the evening the accident occurred. The other line of cases in this area holds that the trial court did not err in overruling objections to questions similar to the one propounded herein on voir dire examination. State v. Greene, 74 R.I. 437, 60 A.2d 711 (1948); Jones v. People, 23 Colo. 276, 47 P. 275 (1896); State v. Farley, 48 Wash.2d 11, 290 P.2d 987, cert. den. 352 U.S. 858, 77 S.Ct. 79, 1 L.Ed.2d 65 (1955). Cf. State v. Pettit, 33 Idaho 326, 193 P. 1015 (1920).\\nAppellant assigns as error the refusal of the trial court to grant his motion for mistrial when respondents' counsel, in his opening statement, made reference to appellant's prior plea of guilty to an involuntary manslaughter charge arising out of the same collision. Respondents' counsel, in cross-examination of appellant, also referred to the criminal proceeding and to appellant's conversations with police officers. Respondents later abandoned this tactic and adduced no proof of the guilty plea. Appellant claims it was error to allow respondents to relate facts to the jury in the opening statement, and then fail to adduce proof thereof, in that such prevented appellant's explanation of the facts.\\nHad respondents adduced proof of the guilty plea, the plea would have been admissible as an admission by a party against interest. This Court considered the question of admissibility in Koch v. Elkins, 71 Idaho, 50, 225 P.2d 457 (1950). There, the question was whether a plea of guilty to a criminal charge of reckless driving could be introduced in a subsequent civil action for recovery of damages for personal injuries. The Court, citing authority, held: \\\"A plea of guilty to a criminal charge, which alleges facts that are in issue in a civil action, is admissible against the party entering the plea as an admission against interest.\\\"\\nHowever, respondents adduced no proof as to this plea. Appellant contends that since respondents brought before the jury that which was not proved, such constituted reversible error. The issue thus is whether the remarks included in the opening statement of respondents' counsel, so inflamed the jury that appellant's motion for mistrial should have been granted, and whether any prejudice on the part of the jury could subsequently be cured by an instruction to the jury.\\nThe effect of the mention by counsel, of prior criminal or civil proceedings in the course of later proceedings has been considered in other jurisdictions. Some courts have held such to be reversible error, while others have held it either not error or error correctible by instructions. 118 A. L.R. 543. An example where reversal was thought necessary is Duval v. Inland Navigation Co., 90 Wash. 149, 155 P. 768 (1916). There, in an action for damages for personal injuries and false arrest, plaintiff's counsel stated that defendant's agent had been arrested and found guilty of assault. The court stated, as dictum (since there were other errors requiring reversal), \\\" bringing before the jury in an opening statement facts which are entirely irrelevant to the issues to be tried, and deliberately interrogating witnesses concerning a matter which has no bearing upon the issues, may easily be so highly prejudicial as not to be curable by instructions.\\\" Cf. Fisher v. Pennsylvania Co., 34 Pa.Super. 500 (1907). On the other hand, no reversal was held necessary in the case of Barr v. Clinton Bridge Works, 179 Iowa 702, 161 N.W. 695 (1917). In that action on a contract, plaintiff's counsel remarked in his opening statement that defendant had been indicted eight times previously for his dealings. The appellate court refused to reverse on grounds of prejudice, stating, \\\"It is conceded that defendant's objection to the opening statement was sustained by the court, and we think it must be presumed that the jury gave attention to the ruling and was not misled thereby to the defendant's prejudice.\\\" Cf. Crawl v. Dancer, 180 Mich. 607, 147 N.W. 495 (1914).\\nA general discussion of the scope and function of the opening statement of counsel is set forth in Miller v. Braun, 196 Kan. 313, 411 P.2d 621 (1966):\\n\\\"The opening statements of counsel are generally no more than outlines of anticipated proof and are not intended as a complete recital of the facts to be produced on contested issues. Their purpose is to inform the jury in a general way of the nature of the action and defense; to advise it of the facts relied upon by the party to make up his cause of action or defense, and to define the nature of the issues to be tried and the facts intended to be proved, so as to better enable it to understand the case. [citations omitted]\\n\\\"Generally speaking, counsel may outline in his opening statement what he expects to prove unless it is manifest that such proof would be incompetent, or the statement is made for the purpose of creating prejudice. Counsel should be allowed considerable latitude in his opening statement and its general nature and character rests largely with the discretion of the district court, which must necessarily rely on the good faith of counsel properly to confine his remarks within the bounds of propriety and good faith. Since whatever counsel states in his opening statement as to what he expects to prove is subject to the further action of the court in permitting him to introduce testimony, it is not necessarily misconduct for him to claim something he does not later prove. (88 C.J.S. Trial \\u00a7 161, p. 314.) The rule is stated in 53 Am.Jur., Trial \\u00a7 456, p. 358, as follows:\\n\\\" 'It is generally held that statements by counsel that certain evidence will be introduced are not improper if made in good faith and with reasonable ground to believe that the evidence is admissible, even though the intended proof referred to is afterward excluded. However, in the absence of good faith, or where prejudice is clearly produced, whether as the result of accident, inadvertence, or misconception, the rule is to the contrary. ' \\\"\\nIn the case at bar, evidence of appellant's guilty plea, had it been offered in the trial court, would have been admissible. The plea was relevant, since it concerned the same legal question at issue in the civil action; nor is there anything in the record indicating that mention by respondents' counsel of appellant's guilty plea was not in good faith. The trial court did not err in overruling appellant's motion for mistrial, since at the time the motion was made, the court could not know what evidence would later be adduced. Moreover, no apparent prejudice to appellant resulted from such ruling, inasmuch as the trial court later gave curative instructions to' the jury regarding the criminal charges, and the evidence amply supports the finding of gross negligence without reference to the criminal proceedings.\\nIn State v. Urie, 92 Idaho 71, 437 P.2d 24 (1968), this Court considered the question whether an instruction could cure the erroneous admission in evidence of a showing that the defendant, at the time of trial, was confined in the penitentiary as the result of a previous conviction. That error was held to be rectified by a proper instruction. The remarks of counsel regarding prior criminal proceedings cannot be considered to be any more prejudicial than the introduction in evidence of prior criminal proceedings.\\nIn the case at bar, the trial court gave two instructions admonishing the jury to disregard the mentioned but unproved guilty plea. These instructions are clear and concise. If there is sufficient evidence in the record which will support the finding of the jury, we must presume that the jurors heeded those instructions.\\nThere is indeed ample evidence in the record, apart from appellant's guilty plea to the charge of involuntary manslaughter, to support the finding of appellant's gross negligence.\\nFirst, appellant's testimony shows that both he and Mrs. Wamsley had been drinking prior to the accident. Appellant also admitted that prior to the accident he was very tired; that Mrs. Wamsley had told him he appeared tired and had inquired if she might drive appellant's automobile, and that he refused to let her drive. Moreover, an officer who investigated the accident testified that in his opinion appellant was intoxicated.\\nSecond, Udell Anderson, driver of the truck, testified that appellant's vehicle, after being operated in an erratic manner, suddenly swerved into his, Anderson's, lane of traffic and crashed headlong into his truck. Appellant testified that he remembered none of the details of the accident, but that he might have fallen asleep or blacked out. Mrs. Wamsley had already told him, by his own admission, that he looked tired, and several times they pulled off the highway into turnouts for periods of rest. As for the blackouts, appellant testified that he had at times suffered the same (and one or two while driving) subsequent to a 1965 industrial accident.\\nAny of these three sets of facts \\u2014 intoxication, falling asleep after being warned, or driving with a known propensity to black out \\u2014 could constitute evidence from which a jury would be justified in finding gross negligence. Given these facts, respondents' mention to the jury (in the opening statement) of appellant's guilty plea in the prior criminal proceeding did not operate to the prejudice of appellant; and any prejudice which might have resulted therefrom was adequately cured by the trial court's instructions to the jury to disregard such incident.\\nAppellant next assigns as error the refusal of the trial court to instruct the jury to the effect that Mrs. Wamsley was guilty of contributory negligence in going to sleep and not exercising reasonable care and caution for her own safety.\\nThe trial court gave several instructions dealing with the defense of contributory negligence, but declined to give the requested instruction based specifically on the \\\"sleep theory.\\\" There was no direct evidence that Mrs. Wamsley was asleep at the time of the accident. When specifically asked whether she was asleep, appellant testified, \\\"I don't know.\\\" In order to show that Mrs. Wamsley was guilty of contributory negligence under that theory, appellant would have had to show by a preponderance of the evidence that she was asleep. He did not do so; his testimony in the premises in effect was that it was as likely that Mrs. Wamsley was not asleep as that she was asleep. Under the \\\"sleep\\\" theory, he failed to carry his burden of proof. Dent v. Hardware Mutual Casualty Co., 86 Idaho 427, 388 P.2d 89 (1964); Splinter v. City of Nampa, 74 Idaho 1, 256 P.2d 215 (1953). Hence the court did not err in refusing to instruct on that theory of contributory negligence.\\nAppellant also assigns error of the trial court in giving jury instruction No. 11, defining ordinary negligence in a case where recovery could be had only for gross negligence. Appellant contends that such an instruction would have the effect of unduly confusing the jury and lead to the application of the standard of ordinary negligence, where a showing of gross negligence is necessary to sustain a finding of liability. However, the instructions taken as a whole amply show that the standard to be applied is that of gross negligence. In fact, the complained-of instruction No. 11, begins as follows: \\\"Plaintiff's [respondent's] case is based on his claim that there was gross negligence on the part of the defendant [appellant] which directly and proximately caused his [respondent's] damage.\\\" Instruction No. 5 commences: \\\"The plaintiffs have the burden of proving the following propositions: FIRST: That the defendant was grossly negligent and that his gross negligence caused the accident in question.\\\" Instruction No. 6 sets forth I.C. \\u00a7 49-1401, the automobile guest statute, requiring proof of gross negligence in order that liability attain in a case such as the one at bar. Finally, the court gave a specific instruction on \\\"gross negligence.\\\"\\nAll instructions to a jury must be taken as a whole. In the absence of a showing to the contrary, we must assume that the jury applied the law as so given to the facts. Although the trial court deemed it necessary to instruct the jury on ordinary negligence as an aid to understanding the concept of gross negligence, Hayslip v. George, 92 Idaho 349, 442 P.2d 759 (1968), nevertheless, the instructions made it quite clear that recovery must be predicated on a showing of gross negligence; hence the giving of an instruction defining ordinary negligence was not error.\\nAppellant complains that the verdict of $44,500. is excessive inasmuch as Mrs. Wamsley's only support was the $240. per month child support payments.\\nAt the time of her death, Mrs. Wamsley had four minor children, ages 14, 12, 9 and 2. They were under her exclusive care, custody and control. In view of their ages, the amount of $11,125. per child was not excessive. Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651 (1950).\\nFinally, appellant contends that the trial court erred in denying appellant's motion for a new trial. There is no merit in his contention. The granting or refusal of such a motion rests in the sound discretion of the trial court, not to be disturbed except in cases of manifest error. Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967); Cassia Creek Reservoir Co. v. Harper, 91 Idaho 488, 426 P.2d 209 (1967).\\n- Judgment affirmed. Costs to respondents.\\nTAYLOR, McQUADE, McFADDEN and SPEAR, JJ., concur.\\n. \\\"(W)e would prove as part of our case here that following this unfortunate accident that Mr. Bryan pleaded guilty in this court to a charge under Idaho Code 18-4006, to involuntary manslaughter and that a part of this charge is the driving (sic) the vehicle without circumspection and with gross negligence.\\\"\\n. S.L.1953, ch. 273, regulating traffic on the highways and defining certain crimes in the use and operation of vehicles is codified as I.C. \\u00a7 49-501 to 49-506 and 49-1001 to 49-1126, incl., see compilers notes I.C. \\u00a7 49-1104. I.C. \\u00a7 49-1119 as so codified reads, \\\"No evidence of the conviction of any person for any violation of this act shall be admissible in any court in any civil action.\\\" A plea of guilty, not to an offense specified in the motor vehicle act, but to the offense of involuntary manslaughter under I.C. \\u00a7 18 \\u2014 4006, would not fall under the ban of I.C. \\u00a7 49-1119, and would be admissible in a subsequent civil action arising out of the same event. To that extent the holding of Koch v. Elkins, supra, is still valid.\\n. State v. Urie holds: \\\"Appellant further contends that admission of State's Exhibit F was error in that it was not a proper matter for rebuttal and that it contained information highly prejudicial to his case \\u2014 namely, that he was presently being confined in the state penitentiary as a result of a previous conviction.\\n\\\"There is no merit to either contention. State's Exhibit F was introduced solely to explain what had transpired at the preliminary hearing in probate court between the time that the criminal complaint against Fraley and Urie was filed (Appellant's Exhibit 4) and the dismissal of charges as to Fraley (Appellant's Exhibit 5) because appel lant refused to testify therein. Moreover, any prejudicial matter contained in Exhibit E was cured by the trial court's explicit admonition to the jury to totally disregard any information concerning appellant's prior conviction in connection with the offense for which he was presently being tried. State v. Ramsbottom, 89 Idaho 1, 402 P.2d 384 (1965); State v. McConville, 82 Idaho 47, 349 P.2d 114 (1960); State v. Polson, 81 Idaho 147, 339 P.2d 510 (1959) ; State v. Autheman, 47 Idaho 328, 274 P. 805, 62 A.E.R. 195 (1929); and State v. Knutson, 47 Idaho 281, 274 P. 108 (1929). These authorities definitely establish the rule that in Idaho an error in admission of evidence may be cured by a proper instruction, and it must he presumed that the jury obeyed the trial court's instruction to disregard entirely the objectionable testimony.\\\"\\n. Instruction No. 2. (Excerpt) \\\"Arguments, statements, and remarks of counsel are intended to help you in understanding the evidence and applying the law, but are not evidence. If any argument, statement, or remark has no basis in evidence, then you should disregard that argument, statement, or remark.\\\"\\nInstruction No. 28. \\\"You are instructed that during this trial reference has been made on occasion to the fact that Mr. Bryan was charged with a crime as the result of the automobile accident which happened on January 15, 1966. The Court instructs you that no evidence has been introduced on this fact and that, therefore, you are not to consider whether or not Mr. Bryan was charged with any crime as the result of this accident in your deliberations.\\\"\\n. Appellant's requested instruction:\\n\\\"I instruct you that even though Marian Wamsley, as a passenger in the automobile, was not under the same or similar duty or obligation of care or\\nwatchfulness that the driver was, nevertheless, she was charged with exercising reasonable care and caution for her own safety, and this required her not to rely blindly upon the exercise of care and caution by the driver, but to take lieed of all those facts and circumstances which may have been plainly visible to her, and as much a warning to her as to the driver, and particularly with reference to the acts of the driver.\\n\\\"Therefore, if you find circumstances existed which would herald danger to a reasonably prudent person, and you further find that Marian Wamsley went to sleep while a passenger in the car, you must consider whether a reasonably prudent person would have gone to sleep under the facts in this case.\\n\\\"Should you find that Marion Wamsley was contributorily negligent in going to sleep and such negligence was a proximate cause of her death, then Gerald Mattson may not recover in this case.\\\"\\n. Instruction No. 18: You are instructed that gross negligence means that there must be more than ordinary negligence, for the two are distinguishable, the distinction being one of degree. Gross negligence means just what it indicates, gross or great negligence; that is, negligence in a very high degree.\"}"

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+"{\"id\": \"2356611\", \"name\": \"GEM VALLEY RANCHES, INC., a corporation, Plaintiff-Respondent, v. James SMALL and Ruth Small, husband and wife, Defendants, Third-Party Plaintiffs, and Appellants, v. SECURITY TITLE INSURANCE CO., a corporation, A. W. Moulton, its President, A. W. Moulton, in his Individual capacity, and Harold J. Pitkin, Third-Party Defendants\", \"name_abbreviation\": \"Gem Valley Ranches, Inc. v. Small\", \"decision_date\": \"1968-03-28\", \"docket_number\": \"No. 10069\", \"first_page\": \"232\", \"last_page\": \"235\", \"citations\": \"92 Idaho 232\", \"volume\": \"92\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T19:00:30.058226+00:00\", \"provenance\": \"CAP\", \"judges\": \"SMITH, C. J., and TAYLOR, Mc-QUADE, and SPEAR, JTJ., concur.\", \"parties\": \"GEM VALLEY RANCHES, INC., a corporation, Plaintiff-Respondent, v. James SMALL and Ruth Small, husband and wife, Defendants, Third-Party Plaintiffs, and Appellants, v. SECURITY TITLE INSURANCE CO., a corporation, A. W. Moulton, its President, A. W. Moulton, in his Individual capacity, and Harold J. Pitkin, Third-Party Defendants.\", \"head_matter\": \"440 P.2d 352\\nGEM VALLEY RANCHES, INC., a corporation, Plaintiff-Respondent, v. James SMALL and Ruth Small, husband and wife, Defendants, Third-Party Plaintiffs, and Appellants, v. SECURITY TITLE INSURANCE CO., a corporation, A. W. Moulton, its President, A. W. Moulton, in his Individual capacity, and Harold J. Pitkin, Third-Party Defendants.\\nNo. 10069.\\nSupreme Court of Idaho.\\nMarch 28, 1968.\\nAs Modified on Denial of Rehearing May 15, 1968.\\nWilliam R. Padgett, Meridian, for appellants.\\nEberle & Berlin, Boise, for appellee.\", \"word_count\": \"1790\", \"char_count\": \"10707\", \"text\": \"McFADDEN, Justice.\\nJames Small and his wife, Ruth Small, appellants, have appealed from an order of the district court which modified an order to show cause issued subsequent to a sheriff's sale of mortgaged real property. This appeal involves the same property before this court in Gem Valley Ranches, Inc. v. Small, 90 Idaho 354, 411 P.2d 943 (1966). Therein, this court affirmed the decree of the district court which held that a certain transaction between Gem Valley Ranches, Inc., and the Smalls was a mortgage, and established the amount due on the mortgage. However, this court reversed that portion of the judgment granting strict foreclosure, and instructed the trial court to enter judgment providing for foreclosure and sale as provided by I.C. Title 6, Chapter 1, and Title 11, Chapters 3 and 4.\\nFollowing remand the trial court entered a supplemental judgment and decree of foreclosure on April 1, 1966. Therein the debt due by the Smalls to Gem Valley Ranches, Inc., was fixed as $310,698.43, and the sheriff was directed to sell the property in satisfaction of that obligation.\\nSale took place on April 28, 1966, pursuant to the order and respondent Gem Valley Ranches, Inc., the judgment creditor, was the purchaser at the sale. During the period of the year redemption could be made, respondent filed with the court and served upon appellants two certificates showing additional expenditures made, rentals received, and computation of interest accrued. The first certificate, filed April 10, 1967, set forth as of that date after crediting rentals, that the amount of the judgment with accrued interest was $371,509.76; the second certificate, filed April 25, 1967, showed additional expenditures, with accrued interest to April 21, 1967, which brought the total due to be $373,382.78, with interest accruing thereafter in the amount of $77.23 per day.\\nOn April 28, 1967 (the last day of the redemption period), appellants demanded an accounting of the rents and profits, which demand recited it was made pursuant to the provisions of I.C. \\u00a7 11-407. On May 3, 1967, an accounting was filed by respondent, and respondent moved for an ex parte order of conveyance of the property. The motion was granted the day it was filed, and the court ordered delivery of a deed by the sheriff unless redemption was made. I.C. \\u00a7 11-407 provides, among other things, that upon filing of an accounting, the date of redemption is extended by five days, which made May 8, 1967, the final date for redemption.\\nOn May 8, 1967, appellants filed a motion for an order to show cause why the redemption date should not be extended. In support of the motion, appellants filed an affidavit alleging that the accounting of the rents and profits was not correct; that the certificates of expense previously filed by respondent were not correct; that respondent had interfered with appellants' right to redeem; and that respondent was guilty of waste.\\nOrder to show cause and a temporary restraining order was issued, holding the cause in abeyance until May 18, 1967, or further order of the court. Respondent moved to quash this order. Hearing was held May 15, 1967, and respondent's motion to quash was denied, but the order to show cause was amended. The amended order to show cause dated May 15, 1967, provided that appellants had until 5:00 p. m., May 16, 1967, to redeem the property with the amount for redemption being fixed at $375,236.30; that redemption could be effected by paying respondent $365,236.30 and depositing with the court $10,000.00 to be held pending determination of certain disputed items. The order then provided that if appellants paid the sums fixed as necessary to redeem, the respondent would be required to submit itemized accounts, with five days thereafter within which appellants could object. Pending outcome of any items objected to, the $10,000.00 to be held by the court would be disbursed either to the appellants or respondent as the case may be. The order also provided in the event of a failure to redeem by 5:00 p. m. on May 16, 1967, the sheriff was to issue a deed to the properties sold at the sheriff's sale. Notice of appeal from this order was prepared and served the same day and filed May 17, 1967.\\nThe appellants never tendered any amount in redemption of the property. The appellants' specifications of error are:\\n1. The court erred in failing to order a proper accounting prior to the redemption.\\n2. The court erred in awarding ac- . countant and attorney fees.\\n3. The court erred in allowing credit of $10,000.00 as rent.\\nIn answer to these specifications of error, it is to he pointed out that no appeal was taken from the supplemental judgment entered subsequent to remand this court. The judgment did not break down the component parts of the total sum \\\"by way of amount due on the principal sum, the amount due for attorney's fees, etc., but entered only one sum for and as -a total sum to be paid from the proceeds of the sheriff's sale. Upon respondent purchasing the property at sheriff's sale, it became substituted to and acquired all right, title, claim and interest of appellants in the property, subject to the right of redemption. Keel v. Vinyard, 48 Idaho 49, 279 P. 420 (1929); Steinour v. Oakley State Bank, 45 Idaho 472, 262 P. 1052 (1928). Unless a redemption is effecutated by the judgment debtor or redemptioner, the purchaser is entitled to all the rents, profits and income during the period of redemption. I.C. \\u00a7 11-407. Northwestern & Pac. Hypotheek Bank v. Dalton, 44 Idaho 120, 256 P. 93 (1927). Should a redemption be made, however, the amount of rents and profits \\\"shall be a credit upon the redemption money to be paid .\\\" I.C. \\u00a7 11-107.\\nAppellants assert they could not determine the amount to be paid for redemption without determination of the amount of moneys received as rentals on the property. This proposition ignores the basic concept of redemption after mortgage foreclosure and sale of the property. The \\u00e1mount needed to redeem the property is fixed in the first instance by the amount bid at the sheriff's sale, plus interest and additional expenses, and amounts paid on \\\"any assessment or taxes which the purchaser may have paid thereon after the commencement of the action and which are not included in the judgment I.C. \\u00a7 11-402. Credit is given for rents and profits received by the purchaser during the period of redemption. I.C. \\u00a7 11-407. The statutes involved require the judgment debtor or redemptioner to pay the purchaser the amount of the purchase with the adjustments recognized. I.C. \\u00a7 11-402. The right to demand a statement of rents and profits by the judgment debtor or redemptioner is spelled out by I.C. \\u00a7 11-407, and upon such demand being made, the period for redemption is extended for five days after the filing of the accounting. The mortgagor in effect has no other rights in the property until such time as a valid tender or payment has been made. Kelley v. Clark, 23 Idaho 1, 129 P. 921 (1912).\\nIn the instant case, appellants contend they are entitled to a full and complete accounting without the necessity of making a redemption. Appellants in complaining of the trial court's failure to order a full accounting are asking the court to exercise its equity powers, yet they refuse to recognize the necessity of themselves also doing equity by making a payment of the amount due to redeem, or in the alternative, to make a valid subsisting tender. Kelley v. Clark, supra. Machold v. Farnan, 20 Idaho 80, 117 P. 408 (1911). In the instant case, the court fixed the amount needed for redemption\\u2014 $375,236.30, of which sum $365,236.30 was to be paid to the purchaser-\\u2014the respondent \\u2014and the remaining $10,000.00 deposited into court to be disbursed after issues complained of were settled by subsequent proceedings. It is our conclusion that the trial court did not err in this order, primarily for the reason that appellants failed to make the required payment or make a valid subsisting tender of the sums required.\\nAs concerns the award of accountant's and attorney's fees, it is to be re called that the supplemental judgment did not itemize or specify any sum as attorney's fees. The only mention of accountant's and attorney's fees comes in the trial court's order appealed from and that had reference to an allowance for such fees incurred after May 2, 1967.\\nAppellants claim that I.C. \\u00a7 11-402 prohibits the allowance of attorney's fees unless \\\"actually paid by the judgment creditor or which the judgment creditor has by written instrument become unconditionally obligated to pay to his attorney for prosecuting his claim to judgment .\\\" I.C. \\u00a7 11-402. However, appellant overlooks the fact that the above-quoted section of I.C. \\u00a7 11 \\u2014 402 is prefaced by the following statement: \\\"provided, in mortgage foreclosure proceedings, the amount necessary to redeem the property sold under execution shall not include any sum for attorney's fees greater than the fee actually paid,\\\" etc.\\nThe amended order provided for fees incurred subsequent to May 2, 1967, which were incurred by reason of the motion and any subsequent accountings. Such fees were not included in \\\"the amount necessary to redeem the property sold under execution \\\" (I.C. \\u00a7 11-402), and hence there was no necessity for complying with that section. The trial court did not err in this regard.\\nThe last specification of error is without merit. Appellants claim the court erred in allowing a credit of $10,000.00 as rent. On the face of it, appellants are claiming the court erred in giving them the benefit of the payment. Even if it be assumed that appellants inferred that the court erred in allowing only $10,000.00, credit, there still is no merit to the specification of error. Until a redemption or valid tender was made of the amounts due, appellants had only a contingent interest in the property. If the valid tender or payment was made, their interest in the property would have been restored, and then they would be in a position to complain.\\nThe order of the trial court is affirmed. Costs to respondent.\\nSMITH, C. J., and TAYLOR, Mc-QUADE, and SPEAR, JTJ., concur.\"}"

idaho/2358948.json

@@ -0,0 +1 @@
+"{\"id\": \"2358948\", \"name\": \"L. M. TURNBOO and Rodney Turnboo, Plaintiffs-Appellants, v. Lawrence KEELE, Al and James M. Fleishman, d/b/a Fleishman Lumber Company, John H. (Jack) Henley and Goldie E. Henley, husband and wife, and Walter D. Bennett and F. W. Bennett, individually and d/b/a F. W. Bennett & Son, Defendants-Respondents\", \"name_abbreviation\": \"Turnboo v. Keele\", \"decision_date\": \"1963-07-10\", \"docket_number\": \"No. 9234\", \"first_page\": \"101\", \"last_page\": \"108\", \"citations\": \"86 Idaho 101\", \"volume\": \"86\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T02:40:26.216918+00:00\", \"provenance\": \"CAP\", \"judges\": \"McQUADE, McFADDEN, TAYLOR and SMITH, JJ., concur.\", \"parties\": \"L. M. TURNBOO and Rodney Turnboo, Plaintiffs-Appellants, v. Lawrence KEELE, Al and James M. Fleishman, d/b/a Fleishman Lumber Company, John H. (Jack) Henley and Goldie E. Henley, husband and wife, and Walter D. Bennett and F. W. Bennett, individually and d/b/a F. W. Bennett & Son, Defendants-Respondents.\", \"head_matter\": \"383 P.2d 591\\nL. M. TURNBOO and Rodney Turnboo, Plaintiffs-Appellants, v. Lawrence KEELE, Al and James M. Fleishman, d/b/a Fleishman Lumber Company, John H. (Jack) Henley and Goldie E. Henley, husband and wife, and Walter D. Bennett and F. W. Bennett, individually and d/b/a F. W. Bennett & Son, Defendants-Respondents.\\nNo. 9234.\\nSupreme Court of Idaho.\\nJuly 10, 1963.\\nAllen R. Derr, Boise, for appellants.\\nHall & Rowett, Mountain Home, for respondents.\", \"word_count\": \"2199\", \"char_count\": \"12996\", \"text\": \"KNUDSON, Chief Justice.\\nAppellants commenced this action to recover an amount allegedly due them for cutting timber and to foreclose their logger's lien which was subscribed to and filed on November 16, 1960.\\nNeither the date of filing the original complaint nor the names of the parties defendant therein are disclosed by the record. The record does show that on April 17, 1961, respondents Jack Henley and Walter Bennett filed a motion to dismiss the action as to them alleging that the complaint failed to state a claim against them upon which relief could be granted. The motion was granted and appellants were authorized tu file an amended complaint.\\nThe amended complaint was filed September 26, 1961, wherein the parties designated as \\\"Defendants-Respondents\\\" in the title of this cause were named defendants.\\nOn October 17, 1961, respondents John H. (Jack) Henley and Goldie E. Henley, husband and wife, and Walter D. Bennett and F. W. Bennett, individually and doing business as F. W. Bennett & Son, filed their motion to dismiss the action as to them upon the ground that the amended complaint failed to state a claim against them upon which relief could be granted. From an order granting said motion and dismissing the action as to said respondents, this appeal is taken. Defendants Lawrence Keele, Al and James Fleishman, doing business as Fleishman Lumber Co., are not parties to this 'appeal. - ~ >\\nThe record does not disclose in what respect the trial court considered the amended complaint to be deficient as to stating a claim against respondents upon which relief could be granted. We shall therefore assume that the claimed deficiencies discussed in respondents' brief constituted the basis for the court's action in granting the motion to dismiss.\\nRespondents correctly assert that appellants' right to the relief sought must be shown to be based on a valid logger's lien. Respondents challenge the validity of the claim of lien in several particulars, one of which is that the notice and claim of lien does not \\\"contain a description of the property to be charged with the lien, sufficient for identification, with reasonable certainty.\\\" The description contained in the notice of lien is as follows:\\n\\\" claim a lien on logs being about 1,400,000 board feet in quantity, which were cut in Elmore County, Idaho, and are now lying in the woods where cut in Elmore County, Idaho, near the Camas Reservoir about 1,350,-000 board feet on property belonging to Jack Henley and about 50,000 board feet on property belonging to Walter Bennett, in Elmore County, State of Idaho,\\nIn considering a contention challenging the sufficiency of compliance with statutory requisites, it should be . kept in mind that a substantial compliance in good faith meets such requirement; that the provisions of our lien statutes must he liberally construed in favor of the claimant with a view to effect their object and promote justice. Seafoam Mines Corp. v. Vaughn, 56 Idaho 342, 53 P.2d 1166; Phillips v. Salmon River Min. & Development Co., 9 Idaho 149, 72 P. 886; Dvbvig v. Willis, 59 Idaho 160, 82 P.2d 95.\\nThe description of the property to be charged with the lien is required to be only such as will be \\\"sufficient for identification.\\\" If there appears enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others, it will be sufficient.\\nIn Phillips v. Salmon River, etc. Co. (supra) it was held that a description of the mining claim contained in a notice of lien in the following language was sufficient:\\n\\\"The mining claim known as the 'Salem Bar' situated on the Idaho side of the main channel of the Snake river one-half mile north, or down the river from the mouth of the Grande Ronde, in Nez Perce County, Idaho.\\\"\\nIn White v. Constitution Min. & Mill. Co., 56 Idaho 403, 55 P.2d 152, this Court had under consideration a contention that the lien involved was invalid because the description used in the notice included property not subject to the lien and the Court stated:\\n\\\"It does not appear that there was any fraudulent intent, nor that anyone was injured due to the fact that the lien claims may have included more property than necessary or property other than that actually subject to lien. The fact that the notice of a claim of lien or claim or statement describes or includes more than the party is entitled to a lien on does not invalidate nor defeat the lien as to the land or property properly subiect thereto,, if there is nn fraudulent intent and no one is injured thereby, and it is for the court to determine, after hearing all the evidence in the case, what portion of the property shall be subject to the lien.\\\"\\nIn the amended complaint here considered it is alleged that the labor and services were performed by appellants \\\"with the full knowledge and acquiescence of defendants Bennett and defendants Henley\\\" and that \\\"all defendants were given actual notice of said statement of lien.\\\" This record shows that prior to the removal of logs from his property and for the purpose of indemnifying against appellants' claim of lien, respondent John H. (Jack) Henley posted a bond pursuant to the provisions \\u00f3f I.C. \\u00a7 45-417.\\nIn Union Lumber Co. v. Simon, 150 Cal. 751, 89 P. 1077, it is stated in substance that where the controversy involves only the rights of the lien claimants and the owners \\\"unless the description was such as to mislead the owner, any mere lack of accuracy therein is not available as a defense.\\\" It is also stated therein that \\\"whether the description in any particular case is sufficient for identification is a question of fact to be determined by the jury or the court upon a consideration of the circumstances of that case.\\\" We conclude that the description in the notice constitutes substantial compliance with the statutory requirements when considered in connection with respondents' motion to dismiss.\\nRespondents argue that the notice of lien is defective in that it does not recite what species of timber the logs were cut from nor what, if any, marks of identification the logs bear. These contentions are without merit since the statute (I.C. \\u00a7 45-407) does not require that the notice contain such recitals. (The identification of the logs is a matter of proof.) Appellants' notice of lien is substantially in the form mentioned in said statute.\\nRespondents also contend that appellants' lien specifies two periods of employment, the first of which ended on July 10, 1960, which was more than 60 days prior to the filing of the lien (November 16, 1960) and it is impossible to separate the lienable from the non-lienable portions. We do not agree with the construction respondents place upon the wording used. The following quoted portion of the notice of lien contains the statement referred to:\\n\\\"That the said contract has been faithfully performed and full complied with on the part of said L. M. TURNBOO AND RODNEY TURNBOO, who performed labor upon and assisted in felling, limbing and topping said logs for the period of about five months, between the 30th day of May and the 10th day of July, 1960 and between the 25th day of August and the 5th day of November, 1960; and the rendition of said services was closed on the 5th day of November, 1960,\\n' This language neither states nor implies that there were \\\"two periods of employment\\\". At the beginning of the paragraph it states \\\"That the said contract \\\" which plainly refers to the employment agreement as being one contract. It also states that appellants \\\"performed labor for the period of about five months, \\\" which undoubtedly was intended to refer to the period between May 30 and November 5, 1960. The fact that appellants may have actually performed the work within the two periods mentioned in the notice does not establish that there were two separate employment agreements. A proper construction of the language used is that the agreement was a continuing one covering the two periods stated.\\nRespondents further contend that if appellants ever had a lien they lost it as to Goldie E. Henley, F. W. Bennett and F. W. Bennett & Son, since they were not made parties to the foreclosure action within the six months' period as provided by I.C. \\u00a7 45^410. They cite Willes v. Palmer, 78 Idaho 104, 298 P.2d 972 in support of this contention.\\nThe record does not disclose when the respective respondents were made parties to this action, however, it is stated in appellants' brief (page 2) that the respondents named in the next above paragraph were \\\"added\\\" by the filing of the amended complaint. In view of this statement we deem it proper to consider this contention of respondents.\\nRespondents have not filed their answer to either the original or amended complaint. They have not disclosed by any pleading what interest, if any, they or either of them claim in the property involved.\\nIt is alleged in the amended complaint that appellants were employed by an authorized agent of defendants Fleishman and Fleishman Lumber Co., who were contract purchasers of the timber upon which the labor was performed. In answer to interrogatories submitted to Jack Henley, he stated that:\\n\\\"On June 1, 1959, myself and my wife entered into a timber contract to sell the fir timber on the above-described land to J. M. Fleishman, doing business as Fleishman Lumber Company.\\nAlso in answer to interrogatories submitted to Walter Bennett he stated that:\\n\\\"I am a former partner in the partnership known as F. W. Bennett & Son, which formerly owned timber land in Elmore County, Idaho.\\\"\\n\\\"The partnership of F. W. Bennett and Son had a contract with J. M. Fleishman covering timber land owned by it.\\\"\\nIt is apparent that under the amended complaint appellants endeavored to bring in all parties known to them to have or claim some interest in the logs involved in an attempt-to have all interested parties bound by the decree prayed for. I.C. \\u00a7 5-313 provides in part as follows:\\n\\\"Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.\\\"\\nSee Idaho Irr. Co., Ltd. v. Dill, 25 Idaho 711, 139 P. 714; IRCP, Rules 19(a), 19(b) and 20(a). In Duggan v. Smith, 27 Wash. 702, 68 P. 356, wherein a lien was involved, the Court stated:\\n\\\"The general rule is that all persons whom the claimant wishes to bind by the decree should be made defendants.\\\"\\nWe repeat that the record does not disclose when the respective respondents were made parties to this action, however, undoubtedly some of them were named as defendants in the original complaint and it is clear that the granting of the dismissal as to them was in error. In Willes v. Palmer, supra, the dismissal of the action as to Mrs. Palmer did not take place until after trial was had and all facts had been established. It may happen that the law announced and followed in that case will prevent recovery against some of the parties made defendants in this action.\\nUpon the other hand the evidence may disclose that those who were not made parties within the six months' period mentioned in I.C. \\u00a7 45-410 are nevertheless bound by the acts of other named defendants; the allegations of the amended complaint that the labor was performed with the full knowledge and acquiescence of respondents, and that they were given actual notice of the lien, must not be overlooked while considering the motion here involved.\\nA motion to dismiss the complaint because of a failure to state a claim upon which relief can be granted admits the facts alleged in the complaint and it should not be dismissed upon that ground unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Wackerli v. Martindale, 82 Idaho 400, 353 P.2d 782; Williams v. Williams, 82 Idaho 451, 354 P.2d 747.\\nWe are satisfied that appellants' notice of lien substantially complies with statutory requirements and that the amended complaint does state facts constituting a claim against respondents and each of them.\\nThe order granting the motion to dismiss is reversed and ordered vacated and the cause remanded with instructions to the trial court to reinstate the amended complaint as to respondents and grant them a reasonable time within which to file answers thereto.\\nCosts to appellants.\\nMcQUADE, McFADDEN, TAYLOR and SMITH, JJ., concur.\"}"

idaho/2359641.json

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+"{\"id\": \"2359641\", \"name\": \"R. T. McCLURE and Robert Bushey, Plaintiffs-Respondents, v. Glen BRIGGS and Hazel Briggs, husband and wife, K. C. Barlow and Francis Barlow, husband and wife, Dean Cook and Edith Cook, husband and wife, Defendants-Appellants, and J. T. Robinson, Additional Defendant\", \"name_abbreviation\": \"McClure v. Briggs\", \"decision_date\": \"1963-02-28\", \"docket_number\": \"No. 9157\", \"first_page\": \"327\", \"last_page\": \"331\", \"citations\": \"85 Idaho 327\", \"volume\": \"85\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T22:37:48.669932+00:00\", \"provenance\": \"CAP\", \"judges\": \"KNUDSON, C. J., and McFADDEN, TAYLOR and SMITH, JJ., concur.\", \"parties\": \"R. T. McCLURE and Robert Bushey, Plaintiffs-Respondents, v. Glen BRIGGS and Hazel Briggs, husband and wife, K. C. Barlow and Francis Barlow, husband and wife, Dean Cook and Edith Cook, husband and wife, Defendants-Appellants, and J. T. Robinson, Additional Defendant.\", \"head_matter\": \"379 P.2d 432\\nR. T. McCLURE and Robert Bushey, Plaintiffs-Respondents, v. Glen BRIGGS and Hazel Briggs, husband and wife, K. C. Barlow and Francis Barlow, husband and wife, Dean Cook and Edith Cook, husband and wife, Defendants-Appellants, and J. T. Robinson, Additional Defendant.\\nNo. 9157.\\nSupreme Court of Idaho.\\nFeb. 28, 1963.\\nNielson & Nielson, Burley, for appellants.\\nEdward Babcock, Robert N. W. Balleisen, Twin Falls, for respondents.\", \"word_count\": \"1580\", \"char_count\": \"9125\", \"text\": \"McQUADE, Justice.\\nPlaintiffs, R. T. McClure and Robert Bushey, brought this action to foreclose their liens on certain lands in Cassia County. The liens were for work and labor performed and materials furnished in drilling certain wells for the defendants, K. C. Barlow and Dean Cook on lands then owned by Briggs.\\nPlaintiffs are engaged in the business of drilling wells. In the latter part of November, 1958, they entered into an oral agreement with the defendant, K. C. Barlow, to drill a well on lands situated in Cassia County. Plaintiffs contend the agreement provided they were to be paid $8.00 per foot for the first 250 feet drilled and $10.00 per foot for any additional footage drilled. Plaintiffs further contend that under the terms of the agreement they did not guarantee water would be found; that no time limit was imposed rtpon them for completion of the work; and that there was no agreement as to placing casing in the well.\\nPursuant to the above agreement, plaintiffs commenced drilling the well, hereinafter referred to as well No. 1, at a place designated by Cook. By the latter part of December, 1958, the well had been drilled to a depth of 425 feet. On January 15, 1959, plaintiffs moved to a new location to drill well No. 2 for the defendant, K. C. Barlow, pursuant to a second oral agreement between the parties. It is contended by the plaintiffs that the second agreement embraced the same terms as the first, except that the price to be paid for drilling the second well was to be $10.00 per foot for all footage drilled. Plaintiffs continued to work on the second well until March 3, 1959, at which time the well had been drilled to a depth of 430 feet. At that time, pursuant to a request of the defendants, Cook and Barlow, plaintiffs moved their equipment back to well No. 1 and cleaned out the well and put in casing. No additional agreement was made between the parties for this work.\\nThereafter, the parties entered into another oral agreement for the drilling of a third well. Plaintiffs contend that this agreement contained the same terms as the oral contract to drill the second well. After moving to a location designated by Cook to drill well No. 3, a dispute arose between the parties.\\nPlaintiffs had been paid the sum of $3,-835.90 for the work performed on well No. 1 prior to the time they moved back to do additional work on that well in March. They claimed that the work done on well No. 1 during March was not included in the original contract entered into between the parties in November, 1958, and that they were entitled to payment for services performed and materials furnished in cleaning out the well and placing the casing therein. The defendant, Barlow, contended that under the terms of the first oral contract, plaintiffs were obligated to put in casing and that at the time they moved off well No. 1 in January, 1959, Bushey had agreed to come back and \\\"complete\\\" the well. Accordingly, he claimed that the work done in March was part of the original agreement and that he was not obligated to pay additional sums for such work.\\nPlaintiffs further insisted upon payment for the work done on well No. 3. Barlow, who had already paid $4,300.00 for work performed and materials furnished on well No. 2 claimed that this well had not been properly drilled. Barlow contended that this well had a \\\"dogleg\\\" at the depth of approximately 260 feet and that this prevented pumps from being used in the well to the extent that a proper amount of water could be obtained from that well. Therefore, he insisted that the monies paid for drilling well No. 2 should be applied to work done on well No. 3. Thus, Barlow asserts that he owed no additional sums on well No. 1 because the original agreement embraced the subsequent work done in March, and that the sums paid for drilling well No. 2 were not properly due plaintiffs from defendants because that well was not serviceable and therefore, the amount paid thereon should be applied toward the amount due for drilling well No. 3.\\nPayment of the amounts claimed due by plaintiffs for additional work done on well No. 1 and for drilling well No. 3 not being made, plaintiffs filed liens on the property upon which the wells were located. Thereafter, plaintiffs brought this action to foreclose their liens.\\nDefendants, K. C. Barlow and J. T. Robinson counterclaimed, contending that they had engaged the plaintiffs to drill the wells to obtain a supply of water to irrigate a crop of potatoes; that plaintiffs knew of this and had agreed to have the wells drilled in time to supply water to the potato crop; that due to the failure of the plaintiffs to properly drill well No. 2, it was unusable; that delay in drilling well No. 3 resulted in defendants being unable to irrigate their potato crop at crucial times shortly after planting; and that these acts on the part of the plaintiffs resulted in damage to their potato crop. Accordingly, Barlow and Robinson sought to recover for these losses. Plaintiffs denied liability on this claim, contending that well No. 2 had been drilled properly. Plaintiffs further denied that any delay on their part with regard to drilling well No. 3 resulted in any injury to the defendants.\\nThe case was tried to the trial judge without a jury. Each of the parties presented evidence in support of their respective contentions. After presentment of the evidence, the trial court found that the first agreement with the defendant, Barlow, did not include placing casing in well No. 1; that well No. 1 was tested and accepted by the defendants on the 20th day of December, 1958; that the defendants, Barlow and Cook thereafter requested plaintiffs to go back to well No. 1 and clean out the bottom of the well and place casing therein; that the plaintiffs were entitled to recover the reasonable value for such additional work on well No. 1; that the work of the plaintiffs on well No. 2 did not cause any obstruction or crookedness or difficulty in the operation of a pump on that well; that well No. 2 was accepted following testing in March of 1959; that the work of well drilling and operations of plaintiffs in regard to well No. 3 did not cause any delay in placing a pump on that well; that the work on all wells was performed in a good workmanlike manner according to the general practices for well drilling in the area; and that, therefore, the plaintiffs were entitled to recover the contract price for the work on well No. 3 in addition to the reasonable value of services performed and materials furnished on well No. 1.\\nWith regard to the cross-claim of the defendants, Barlow and Robinson, the trial court found that \\\"none of the expenses, damages, or claims of the defendants were occasioned by any error, neglect, act of commission, or acts of omission on the part of plaintiffs' well drilling operations or work in any way or manner.\\\"\\nPursuant to the above findings, the trial court entered judgment for plaintiffs on their respective claims and denying recovery to defendants on their cross-claims. Defendants moved for a new trial, contending that the findings of fact and conclusions of law of the trial court were contrary to the law of the case. The motion for a new trial having been denied, the defendants appeal from the order denying said motion and from the judgment, contending that the findings of fact, conclusions of law, and judgment of the trial court are unsupported by the evidence and contrary to law.\\nA review of the record discloses substantial, though conflicting, evidence in support of the findings and judgment of the trial court. In Shellhorn v. Shellhorn, 80 Idaho 79, 326 P.2d 64, this Court held:\\n\\\"Where the findings of fact of the trial judge are sustained by competent, substantial, though conflicting, evidence, such findings of fact will not be disturbed on appeal. Anselmo v. Beardmore, 70 Idaho 392, 219 P.2d 946; Ryan v. Day, 74 Idaho 159, 258 P.2d 1146; Howay v. Howay, 74 Idaho 492, 264 P.2d 691; Jensen v. Chandler, 77 Idaho 303, 291 P.2d 1116.\\\"\\nThe reason for this rule is stated in Sellars v. Sellars, 73 Idaho 163, 248 P.2d 1063, and again in Shellhorn v. Shellhorn, supra, as follows:\\n\\\"The trial judge is the arbiter of conflicting evidence and his determination of the weight, credibility, inferences and implications thereof is not to be supplanted by this Court's impressions or conclusions from the written record.\\\"\\nThis Court has carefully examined all of appellants' assignments of error and is of the opinion that no reversible error was committed in the trial of the cause.\\nThe judgment is affirmed.\\nCosts to respondents.\\nKNUDSON, C. J., and McFADDEN, TAYLOR and SMITH, JJ., concur.\"}"

idaho/259567.json

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+"{\"id\": \"259567\", \"name\": \"STATE of Idaho, DEPARTMENT OF FINANCE, Plaintiff-Respondent, v. RESOURCE SERVICE CO., INC., a Wisconsin corporation, Fred L. Engle, and their agents and representatives, Defendants-Appellants\", \"name_abbreviation\": \"State, Department of Finance v. Resource Service Co.\", \"decision_date\": \"2000-04-14\", \"docket_number\": \"No. 24908\", \"first_page\": \"282\", \"last_page\": \"285\", \"citations\": \"134 Idaho 282\", \"volume\": \"134\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T00:11:01.266311+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice TROUT, Justices SCHROEDER, WALTERS and KIDWELL concur.\", \"parties\": \"STATE of Idaho, DEPARTMENT OF FINANCE, Plaintiff-Respondent, v. RESOURCE SERVICE CO., INC., a Wisconsin corporation, Fred L. Engle, and their agents and representatives, Defendants-Appellants.\", \"head_matter\": \"1 P.3d 783\\nSTATE of Idaho, DEPARTMENT OF FINANCE, Plaintiff-Respondent, v. RESOURCE SERVICE CO., INC., a Wisconsin corporation, Fred L. Engle, and their agents and representatives, Defendants-Appellants.\\nNo. 24908.\\nSupreme Court of Idaho, Boise,\\nDecember 1999 Term.\\nApril 14, 2000.\\nOrmiston, Korfanta, Dunbar, Boise, for appellants. Steven R. Ormiston argued.\\nHon. Alan G. Lance, Attorney General; Brett T. DeLange, Deputy Attorney General, Boise, for respondent. Brett t. DeLange argued.\", \"word_count\": \"2004\", \"char_count\": \"12306\", \"text\": \"SILAK, Justice.\\nResource Service Company appeals an order of the district court denying a motion for attorney fees under Section 12-117 of the Idaho Code. We affirm.\\nI.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nA. Factual Background\\nResource Service Company, Inc. (RSC) is a Wisconsin-based business that provides services related to applications for non-competitive oil and gas lease drawings. The U.S. Department of the Interior, through the Bureau of Land Management (BLM), is responsible for leasing oil and gas exploration and development rights. Parcels of land are offered for lease at auction for competitive bids. If a parcel of land fails to receive an adequate competitive bid, a non-competitive lease may be issued on the parcel. Priorities among non-competitive offers received on the same day are determined by a random draw ing. A successful applicant acquires the right to explore, drill, extract, and dispose of oil and gas deposits found on that parcel.\\nRSC groups customers together, files an application on their behalf, and provides customers with information regarding the filings made. To promote its services, RSC mailed Idaho residents unsolicited correspondence. Recipients of RSC's initial promotional material were informed that they could receive RSC's services by paying a $40.00 fee and signing a Service Agreement. After sending in $40.00 and signing the Service Agreement, RSC customers received three chances to acquire a %th interest in an eighty-acre noncompetitive lease. If a customer successfully acquired an interest in a lease, he or she was free to dispose of or develop the interest in any manner he or she deemed appropriate.\\nB. Procedural Background\\nOn April 30, 1991, the Department of Finance (the Department) brought suit against RSC and its principal, Fred L. Engle, alleging that RSC marketed unregistered securities by soliciting a $40.00 fee from customers to enter their names in a BLM lottery for gas and oil leases.\\nThe district court granted summary judgment for the Department and RSC appealed. In Dept. of Finance v. Resource Service Co., 130 Idaho 877, 950 P.2d 249 (1997) (RSC I), the Idaho Supreme Court reversed, holding that RSC's program did not constitute an \\\"investment contract\\\" and was therefore not a security governed by the Idaho Securities Act.\\nPursuant to the Supreme Court's decision, the district court dismissed the Department's complaint. RSC subsequently requested attorney fees pursuant to Idaho Code \\u00a7 12-117. The district court denied the request stating that it could not conclude from the Supreme Court's decision that the Department acted without a reasonable basis in fact or law as required for an award of attorney fees under I.C. \\u00a7 12-117.\\nII.\\nISSUES ON APPEAL\\nThe issues presented on appeal are:\\nA. Whether the Department acted without a reasonable basis in fact or law in bringing and maintaining its action against RSC.\\nB. Whether RSC is entitled to attorney fees on appeal pursuant to I.C. \\u00a7 12-117.\\nIII.\\nSTANDARD OF REVIEW\\nThe Court exercises free review over the decision of a district court applying I.C. \\u00a7 12-117. See Rincover v. State, Dept. of Finance, 132 Idaho 547, 549, 976 P.2d 473, 475 (1999).\\nIV.\\nANALYSIS\\nRSC Is Not Entitled To Attorney Fees Under I.C. \\u00a7 12-117 Because The Department Did Not Act Without A Reasonable Basis In Fact Or Law.\\nIn order to be entitled to an award of attorney fees under I.C. \\u00a7 12-117, the prevailing party must show that the state agency \\\"acted without a reasonable basis in fact or law.\\\" I.C. \\u00a7 12-117. Idaho Code section 12-117(1) states:\\nIn any administrative or civil judicial proceeding involving as adverse parties a state agency, a city, a county or other taxing district and a person, the court shall award the person reasonable attorney's fees, witness fees and reasonable expenses, if the court finds in favor of the person and also finds that the state agency, the city, the county or the taxing district acted without a reasonable basis in fact or law.\\nI.C. \\u00a7 12-117.\\nThe purpose of I.C. \\u00a7 12-117 is: 1) to serve as a deterrent to groundless or arbitrary action; and 2) to provide a remedy for persons who have borne unfair and unjustified financial burdens defending against groundless charges or attempting to correct mistakes agencies should never have made. See Rincover, 132 Idaho at 549, 976 P.2d at 475. This Court has noted that I.C. \\u00a7 12- 117 is not a discretionary statute, but it provides that the court shall award attorney fees where the state agency did not act with a reasonable basis in fact or law in a proceeding involving a person who prevails in the action. See Idaho Dept. of Law Enforcement v. Kirns, 125 Idaho 682, 685, 873 P.2d 1336, 1339 (1994).\\nIn RSC I, this Court found that the services provided by RSC did not fit within the definition of an \\\"investment contract\\\" and therefore, did not constitute a security. Thus, as the prevailing party, RSC has satisfied the first element required by I.C. \\u00a7 12-117 for an award of attorney fees.\\nRSC argues that because the Supreme Court ultimately found the services provided by RSC did not involve the sale of securities in violation of the Idaho Securities Act, the Department was without a reasonable basis in fact or law and therefore, attorney fees are mandated pursuant to I.C. \\u00a7 12-117. The fact that this Court subsequently determined that RSC's program did not constitute a security does not, in and of itself, establish that the Department acted unreasonably or without legal or factual basis in maintaining suit against RSC. The issue presented here is whether, throughout the entirety of the proceedings, the Department had a reasonable basis in fact or law to charge RSC with a violation of the Idaho Securities Act, Title 30 Chapter 14 of the Idaho Code.\\nAs the district court noted below, this was a question of first impression in Idaho as to whether a lottery participation program constituted a \\\"security\\\" within the purview of the Idaho Securities Act. In Rincover, this Court recently discussed I.C. \\u00a7 12-117 as applied to a situation involving a question of first impression. In that case, the Department of Finance denied an application for registration to sell securities based upon its interpretation of I.C. \\u00a7 30-1413. At the time, the specific provisions relied upon had not been construed by the courts of this state. Though the district court ultimately disagreed with the Department's interpretation of the statute, on appeal for attorney fees under I.C. \\u00a7 12-117, the Supreme Court stated that \\\"it [did] not appear that the Department's action was unreasonable under the circumstances\\\" or that \\\"the Department was groundless or arbitrary or required the appellant to bear an unfair or unjustified expense in an attempt through judicial review to correct an agency mistake that should have never been made.\\\" Rincover, 132 Idaho at 550, 976 P.2d at 476.\\nSimilarly, in Treasure Valley Concrete, Inc. v. State, 132 Idaho 673, 978 P.2d 233 (1999), this Court faced interpreting I.C. \\u00a7 47-701 to determine whether sand, gravel and pumice constitute \\\"minerals\\\" reserved by the state within the meaning of that section. Treasure Valley also presented a question of first impression before this Court and though it was ultimately held that these substances did not constitute \\\"minerals\\\" and were not reserved by the state until after the 1986 amendment to I.C. \\u00a7 47-701, other states had interpreted \\\"minerals\\\" in similar statutes to include sand, gravel and pumice. Therefore, on appeal this Court could not conclude that the State acted without a reasonable basis in fact or law in defending its action. See Treasure Valley, 132 Idaho at 678, 978 P.2d at 238.\\nPrior to this Court's decision in RSC I, no appellate court of this state had addressed the issue of whether a lottery lease filing service, such as that operated by RSC, constitutes a \\\"security\\\" within the purview of the Idaho Securities Act. Indeed, only two district courts of this state had addressed the issue with varying results. See State of Idaho v. Alaska Capital Corp., Case No. 84710 (Idaho Dist.Ct., Sept. 22, 1986), State of Idaho v. Southeast Energy Exchange, Inc., Case No. 89795 (Idaho Dist.Ct., May 23, 1988). For this reason, the Department initially had only the statute and decisions of other jurisdictions to guide it See Cox v. Department of Ins., State of Idaho, 121 Idaho 143, 148, 823 P.2d 177, 183 (Ct.App.1991). As noted by the district court prior to this Court's determination on the issue:\\nThe parties present their motions as if RSC's service clearly is or is not an investment contract, referencing numerous administrative and judicial decisions in support of their respective propositions. However, the weight of authority does not appear to unequivocally favor either par t/s position. The numerous decisions examined . truly seem to turn on the very specific facts of each case.\\nThe crux of RSC's argument here is that the Department failed to consider ease law standing for the proposition that lease lotteries, such as those involved in this case, are not considered securities and therefore, the Department acted without a reasonable basis in fact or law in filing and maintaining suit against RSC for violation of the Idaho Securities Act. In particular, RSC argues that the Department \\\"steadfastly refused to find merit in the [SEC v. Energy Group of America, 459 F.Supp. 1234 (S.D.N.Y.1978) ] decision\\\" which it asserts was relied upon by this Court in RSC I. It should be noted that while this Court cited favorably to the Energy Group decision in its ultimate determination on the issue, other courts and securities administrators addressing the issue have found, contrary to Energy Group, that application filing services such as the one operated by RSC may qualify as investment contracts and may therefore be securities. See, e.g., Cellular Engineering, Ltd. v. O'Neill, 118 Wash.2d 16, 820 P.2d 941, 947 (1991) (citing: In re Federal Resources Corp., [1978-81 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,476 (Nov. 8, 1978) (Alaska Dept. of Commerce & Econ. Dev., Div. of Banking & Secs.); In re Amerifirst Petroleum, Inc., [1982-84 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,867 (Oct. 25, 1983) (Fla. Dept. of Banking & Fin.); In re Federal Exploration, Inc., [1982-84 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,906 (Dec. 28, 1983) (Mass. Secretary of State, Secs. Div.); In re Overthrust Mineral Corp., [1982-84 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,898 (Dec. 8, 1983) (Mich. Dept. of Commerce, Corp. & Secs. Bureau); In re Federal Oil & Gas Corp., [1982-84 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,953 (Mar. 23, 1984) (Mo. Secretary of State.); In re Resource Serv. Co. & Fred Engle, [1978-81 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,570 (Aug. 29, 1980) (Minn. Comm'r of Secs.); In re Energy Group of Am., Inc., [1982-84 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,821 (Mar. 31, 1983) (Mont.Secs. Comm'r.); In re Overthrust Mineral Corp., [1982-84 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,849 (July 25, 1983) (Wyoming Secretary of State)).\\nTherefore, although this Court ultimately determined that the particular lottery lease filing service operated by RSC did not constitute an \\\"investment contract\\\" in violation of the Idaho Securities Act, we hold, based upon the lack of case law of this state in addition to supporting decisions from other jurisdictions, that the Department was not without a reasonable basis in fact or law in bringing and maintaining suit against RSC for violation of the Idaho Securities Act.\\nV.\\nCONCLUSION\\nAccordingly, we affirm the district court's denial of attorney fees under I.C. \\u00a7 12-117. No attorney fees awarded on appeal. Costs on appeal to respondent.\\nChief Justice TROUT, Justices SCHROEDER, WALTERS and KIDWELL concur.\"}"

idaho/3336054.json

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+"{\"id\": \"3336054\", \"name\": \"DENNING v. CITY OF MOSCOW\", \"name_abbreviation\": \"Denning v. City of Moscow\", \"decision_date\": \"1905-11-10\", \"docket_number\": \"\", \"first_page\": \"415\", \"last_page\": \"420\", \"citations\": \"11 Idaho 415\", \"volume\": \"11\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:36:41.212953+00:00\", \"provenance\": \"CAP\", \"judges\": \"Ailshie, J., and Sullivan, J., concur.\", \"parties\": \"DENNING v. CITY OF MOSCOW.\", \"head_matter\": \"(November 10, 1905.)\\nDENNING v. CITY OF MOSCOW.\\n[83 Pac. 339.]\\nWrit of Prohibition \\u2014 Will not Issue When.\\n1. Where it is shown that the city authorities are acting within the scope ox the authority given therein by statute, the writ will be denied.\\n2. The writ will not issue to prohibit the officers of a city from levying and assessing city property subject to assessment for the payment of certain bonds, and certify such levy and assessment to the county tax collector for collection \\u201cas other taxes are collected\\\" under the provisions of subdivision 10 of section 2 (Sess. Laws 1900) and section 86, page 209 (Sess. Laws 1899).\\n(Syllabus by the court.)\\nORIGINAL action for a writ of prohibition.\\nDenied.\\nS. S. Denning, for Petitioner,\\ncites no authorities not cited in the opinion.\\nJ. PI. Forney, for City of Moscow,\\ncites no authorities not cited in the opinion.\", \"word_count\": \"1714\", \"char_count\": \"9806\", \"text\": \"STOCKSLAGER, C. J.\\n\\u2014 The plaintiff filed his application for a writ of prohibition. The facts are agreed upon and we are asked to construe certain provisions of the acts of the legislature, seventh session, and of the eighth session. The facts as agreed upon are that \\\"S. S. Denning is the owner of a certain lot of real estate situated within the corporate limits of the city of Moscow. That the said lot of land has been duly assessed and a tax has been levied thereon by the city council of said city of Moscow for the purpose of constructing, maintaining and operating a sewerage system; that if the said city council shall certify the sewerage assessments to the county tax collector of Latah county, state of Idaho, that thereby the said assessments will be increased upon property of the said S. S. Denning to the extent of one and one-half per cent, and upon all other property within the corporate limits of the said city of Moscow to the extent of one and one-half per cent costs of collection. That this application is made for the purpose of ascertaining from this honorable court, whether such assessments shall be collected by the proper officers of said city of Moscow or whether the said city council shall certify all such assessments and taxes a\\u00a7 are now due to the tax collector of Latah county and collected in the same manner as other city taxes are collected.\\\"\\nIt is hereby further stipulated that the bonds heretofore mentioned were to be paid in five equal annual installments, and that no installment has yet been levied. That the city has paid all of its installments upon its municipal property, and that the city is not now, neither have they ever been, indebted under subdivision 3 or 4 of section 2 of the Laws of 1893, page 32, by expending from the gen eral funds any money in consideration of the benefits accruing to the general public by reason of such sewerage improvement, nor has any ordinance ever been passed since the passage of the construction ordinance \\\"providing for the payment of the costs and expenses thereof by installment, instead of levying the entire tax for special assessments for such costs at any one time.\\\"\\nThe writ was not issued, the stipulation in its last clause asking that the case be heard as to whether or not the writ shall issue. The action is against the city of Moscow to prohibit the mayor and city council from certifying an assessment and levy to the assessor and tax collector of Latah county for the purpose of paying the first installment of certain sewerage bonds issued under the provisions of an act of the legislature in 1903. Counsel for plaintiff in his brief says: \\\"There is but one question presented,\\\" and that is: \\\"What is the proper mode of assessing, levying and collecting the several installments on the bonds in accordance with the act of 1903?\\\" It is shown by the application that during the year 1902 the city council of the city of Moscow duly levied and assessed certain taxes for sewerage improvements and for the purpose of constructing, maintaining and operating a sewerage system within the corporate limits of the city of Moscow; that there is now due and unpaid on said sewerage assessments the sum of $28,000.\\nCounsel for plaintiff insists that by the provisions of the law of 1903, there are two schemes, either of which may be followed for the payment of the indebtedness contracted in the building of the sewer as against the property benefited. Subdisivion 10 of section 12 of the act provides that \\\"All such assessments shall be known as special assessments for sewerage assessments and shall be levied and collected as separate taxes in addition to the taxes for general revenue purposes to be placed on the tax-roll for collection subject to the same penalties for collection and in the same manner as other city, town or village taxes.\\\" Section 11 of the act provides, \\\"That whenever the mayor and council shall cause any sewerage work or improvement to be done under the provisions of this act the expense is chargeable to the property within the boundary lines within the sewerage district laid out under the provisions of this act, they may in their discretion thereof provide for the payment for the costs and the expense thereof by installments, instead of levying the entire tax for special assessments for such costs at any such time and for such installments they may issue in the name of the city, town or village improvement bonds of the district, which shall be known and designated as special assessment sewerage improvement bonds.\\\"\\nSubdivision 12 of section 12 provides: 'Such bonds, when issued to the contractor constructing said work or improvements in payment thereof, or when sold as above provided, shall transfer to the contractor, or other owner or holder,the right or interest of such city, town or village in or with respect to every assessment, and the lien thereby created against the property of the owners assessed who shall not have availed themselves of the provisions of this aet in regard to their property, as aforesaid, shall authorize said contractor, and his assigns and the owners and holders of said bonds, to receive, sue for and collect every such assessment embraced in any bond by or through any of the methods provided by law for the collection of assessments for local improvements. And if the city, town or village shall fail, neglect or refuse to pay such bonds or to properly collect any such assessments wh\\u00e9n due, the owner of any such bonds may proceed in his own name to collect any such assessments and foreclose the lien thereof in any court of competent jurisdiction, and shall recover, in addition to the amount of such bonds and interest thereon, five per cent, together with the costs of such suit.\\\"\\nSection 15 provides that \\\"The holder of any bond issued under the authority of this act shall have no claim therefor against the city, town or village by which the same is issued in any event, except for the collection of the special assessment made for the work or improvement for which said bond was issued; but Ms remedy in ease of nonpayment shall be confined to the enforcement of such assessment.\\\"\\nAfter calling our attention to the above quotations of the Session Laws of 1903, counsel for plaintiff asks the question: How far is the city liable npon those bonds for the bondholder? If the city should be negligent in making the assessment and levy, how long should this negligence continue before the bondholder can bring an action against the city or a writ of mandate against the city council compelling them to make the assessment and levy?\\nWe have carefully reviewed the law of this case to which our attention has been called, and so far as the only question we deem of importance at this time is concerned, we do not find much embarrassment in determining it; that is, Is the city through its officers properly proceeding to collect the revenue with which to meet the obligations of the city on the outstanding bonds? It seems that the city of Moscow has certified the sewerage taxes to the county tax collector to be collected as \\\"other taxes are collected.\\\" It is conceded by counsel for the city that there is no provision in the act of 1903 permitting the city to state when their respective assessments are due, or to become due; that is, there is no authority granted by said act authorizing the city of Moscow to fix. the time when these respective installments shall become due. But our attention is called to section 86 of the Fifth Session Laws (1899), page 209. This section reads: \\\"The council or trustees of each city or village' shall, at the time provided by law, cause to be certified to the county tax collector the percentage or number of mills on the dollar of tax to be levied for all city or village purposes by them on the taxable property witMn said corporation for the year then ensuing as shown by the assessment-roll for said year, including all special assessments and taxes assessed as hereinbefore provided, and the said tax collector shall place the same on the proper tax lists to be collected in the manner provided by law for the collection of state and county taxes.\\nThere is no attempt in the act of 1903 to repeal the above provision of the act of 1899, neither do we find anything in the law of 1903 that in any way conflicts with that provision of the act of 1899. It may have attempted to provide another remedy for the bondholder, bnt it did not relieve the city authorities from the duty of providing revenue for the payment of its outstanding obligations. Construing the two acts together, we think the duty of the city authorities is plain, and that they are only acting as the law requires when they certify the sewerage taxes to be collected to meet the obligations of the city to the county tax collector to be collected \\\"as other taxes are collected.\\\" The writ is denied.\\nAilshie, J., and Sullivan, J., concur.\"}"

idaho/3339513.json

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+"{\"id\": \"3339513\", \"name\": \"CARTIER v. BUCK\", \"name_abbreviation\": \"Cartier v. Buck\", \"decision_date\": \"1904-02-05\", \"docket_number\": \"\", \"first_page\": \"571\", \"last_page\": \"577\", \"citations\": \"9 Idaho 571\", \"volume\": \"9\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:21:42.211893+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sullivan, C. J., and Ailshie, J., concur.\", \"parties\": \"CARTIER v. BUCK.\", \"head_matter\": \"(February 5, 1904.)\\nCARTIER v. BUCK.\\n[75 Pac. 612.]\\nNew Trial not Granted When Evidence is Conflicting.\\n1. Where it is shown by the record that there is a substantial conflict in the evidence on the material issues involved, a new trial will not be granted, neither will the judgment be modified under the facts established in the case.\\n(Syllabus by the court.)\\nAPPEAL from the District Court of Fremont County. Honorable J. C. Rich, Judge. New trial denied by Honorable J. M. Stevens, Judge.\\nAction to settle the water rights of Camas creek. Judgment for plaintiff from which certain defendants appeal.\\nJudgment sustained.\\nThe facts are stated in the opinion.\\nHawley & Puckett, for Appellants.\\nIt will not be disputed that in order to constitute a legal appropriation the water claimed must be applied to some beneficial use or purpose. The true test of appropriation of water is the successful application thereof to the beneficial use designed, and the method of diverting or carrying the same or making such application is immaterial. (Thomas v. Guiraud, 6 Colo. 530.) If one appropriates part of the waters of a stream for a certain period of time, any other person may not only appropriate the residue and acquire a right thereto as perfect as the first appropriation, but may also acquire a right to the quantity of water used by the first appropriator at such times as it is not needed or used by him. (Smith v. O\\u2019Harr a, 43 Cal. 371; Barnes v. Babron, 10 Nev. 217.) The rights of a prior appropriator of water are limited by his beneficial use, and not by the original capacity of his ditch; and where he has ceased to use only a specified quantity of the water, or has limited his regular use of it for irrigation, all of the water not used is subject to subsequent appropriation by another. (Santa Paula Water Works v. Peralta, 113 Cal. 38, 45 Pac. 168; New Mercer Ditch Go. v. Armstrong, 21 Colo. 357, 40 Pae. 990; McDonald v. Bear River etc. W. M. Go., 13 Cal. 220.)\\nF. S. Dietrich, for Respondent.\\nIt will be observed from the record that no question is made of the correctness of the decree, so far as the amounts and the dates of the various appropriations as fixed by the decree are concerned, and consequently only a small portion of the evidence heard by the court is incorporated in the record. In other words, the court found and decreed correctly the date and amount of the appropriation of each of the parties to the suit, including the plaintiff, and also that the water so appropriated had always been put to a beneficial use. Under the rule laid down in McGmness v. Stanfield, 6 Idaho, 372, 55 Pac. 1020, when the court had correctly found and decreed these facts, it had done all that it was required to do. In McGinness v. Stanfield, the court says: \\u201cPriority of appropriation having been established, as well as the amount of the water appropriated and the beneficial use thereof, it seems to us that the functions of the court under the statutes have reached their \\u25a0limit. Upon the main question discussed by appellants, that is, the effect of the use of water by the upper appropriators upon the supply at the lower end of the stream, we maintain that the great preponderance of evidence supports the findings of the court. Appellants contended in the lower court that in the early years the stream sometimes went dry. Upon that particular phase of the controversy there is a conflict of testimony, but even here the preponderance supports the findings of the court. Even if the preponderance of the evidence were against the findings, still under the rule universally established and very recently reiterated by this court, this court should not disturb the findings of the trial court. (See Simons v. Daly, ante, p. 87, 72 Pae. 507; Stewart v. Hauser, ante, p. 53, 72 Pac. 719.)\", \"word_count\": \"2382\", \"char_count\": \"13699\", \"text\": \"STO CRSLAGER, J.\\nThis is an action brought in the district court of Fremont county and was originally commenced by the plaintiff against a few of the defendants for the purpose of restraining them from using the waters of Camas creek and by such use lessening the plaintiff's water supply.\\nAfter the suit had been commenced an order of the court was made bringing in all other parties who were users of the waters of said stream as defendants. By agreement made in open court defendants were permitted to deny the allegations of the complaint by general denial. The several defendants in addition to their- answers filed cross-complaints setting up their several rights to the use of the waters of said stream and the dates of their appropriations. The cause was tried before the court without a jury, and the court by its findings of fact, found the relative rights of the parties in and to the use of the waters, following it up with a decree founded upon such facts. A large number of defendants represented by Hawley & Puckett as their attorneys, gave notice of their intention to move for a new trial, and thereupon prepared a statement on motion for a new trial, which was settled and allowed. An order denying a new trial was made. From the order denying the new trial and from the judgment said defendants appealed. This statement is taken from the brief of appellants and is adopted by the court, as it is conceded by respondent to be in the main correct. Respondent supplements the statement by the further statement that in the years 1883, 1884 and 1885, about the time the railroad was built through Idaho from Utah to Montana, a number of settlers entered lands three or four miles west of Camas railroad station along Camas creek near its lower' end. After all of the waters of Camas creek were appropriated at the lower end of the stream, settlers upon the tributaries gradually began to use the water regardless of the rights of the lower claimants, though prior appropriators.\\nSettlement at the upper end of the stream progressed slowly until about the year 1897 or 1898, when both settlement and increase in the area of irrigation seem to have been given a considerable impetus, and the plaintiff, being unable to get water even up as late as the first of July each year, brought this suit to have his rights determined and to have the upper and late appropriators enjoined from interfering with his rights.\\nAfter decree was entered, plaintiff sold and transferred all of his holdings to the Wood Livestock Company, and he now asks that it be now recognized as the respondent in the place and stead of the plaintiff in the lower court.\\nCounsel for appellant say in their brief that the statement on motion for a new trial shows that there is no dispute as to the amount of water decreed to the various parties to the suit by the decree of the court, nor is there any dispute as to the time from which the several rights of the parties should date. It is argued, however, that the use of the water by the subsequent appropriators \\u2014 among them the appellants \\u2014 has been beneficial to respondent and its predecessors creating what might be termed an underground reservoir, thereby retaining the water that seeps into the ground or reservoir from the early spring irrigation of the lands near the head of the stream; gradually this water finds its way back into the channel and passes on down, thereby prolonging the life of the stream. If the theory is true, the users at the lower end of the stream are certainly benefited.\\nI have very frequently heard this theory advanced in the district court and have heard much evidence on the subject. This, however, is the first time the question has reached this court. One thing seems to be noticeable in all cases where this question arises; that is, that this peculiar system of reservoirs or spongy condition of the soil is always discovered by the parties at the upper end of the stream, and as vigorously disputed and denied by the lower appropriators.\\nIf this contention of appellants is true, it is certainly a good and sufficient defense to this action.\\nBefore the plaintiff in the lower court could obtain injunction relief, it was incumbent on him to show that the use of the waters of Camas creek, or some of its tributaries, by the defendants prevented the water from flowing down to him in the natural channel, and also that had they not disturbed it, it would have found its way to his premises. This being the question upon which the rights of the parties to this action must be determined, it will be necessary to examine the evidence at some length. The fourth finding of the court is: \\\"That of the several amounts of water so appropriated, the plaintiff and his predecessors in interest, during the several years in which said several amounts of water were first appropriated and diverted as aforesaid, and continuously ever since said several dates of appropriation, except when prevented from so doing by the unlawful interference of the defendants and other persons, have continued to divert and use during the whole of the irrigating season each year for domestic and stock purposes, and for the purpose of irrigating certain of said tracts of land and raising agricultural crops thereon, the following amounts during and from the dates set opposite thereto, to wit: Seventy-five inches, dated April 1, 1888; seventy-five inches, dated April 1, 1884; three hundred and fifty inches, dated April 1, 1885; one hundred inches, dated April 1, 1886; seventy-five inches, dated April 1, 1895.\\n\\\"That of the several amounts of water so appropriated, as set out in the foregoing paragraph (3), the plaintiff and his predecessors in interest, during the years in which said several amounts of water were first appropriated and diverted as aforesaid, and continuously ever since said several dates of appropriation, except when prevented from so doing by the unlawful interference of the defendants and other persons, have continued to divert and use during each and every irrigating season up to July 1st of each year, for the purpose mainly of irrigating wild hay upon certain of said lands, which the court finds to be a paying crop when irrigated, and needs irrigation up to but not after July 1st, the following amounts during and from the dates set opposite thereto, to wit: Eighty-five inches, dated April 1, 1883; eighty-five inches, dated April 1, 1884; four hundred and seventy-five inches, dated April 1, 1885; sixty inches, dated April 1, 1887; two hundred inches, dated April 1, 1895.\\n\\\"That the rest of said water so appropriated, to wit, three hundred inches, April 1, 1883, and one hundred and fifty inches, April 1, 1887, was never appropriated or used except dur ing the spring high-water season, and the same has during the high-water season every year been used by plaintiff and his predecessors in interest in producing hay and pasture for stock.\\\"\\nThe statement on motion for new trial says that \\\"Plaintiff and his predecessors appropriated of the waters of Camas creek, seventy-five inches from April 1, 1883; seventy-five inches from April 1, 1884; three hundred and fifty inches from April 1, 1885; four hundred inches from April 1, 1886; five hundred inches from April 1, 1895; and that said amounts of water are necessary for the successful cultivation of said lands, over and above the water appropriated for use upon said hay lands.\\\"\\nWe have read the evidence of the witness Boss, who was state engineer, and whose business was devoted to the important subject of irrigation in this state. He testifies to the theory advanced by appellants that the use of water at the head of a basin or stream in the early spring seems to hold the water in check and thereby prolongs the life of the stream, thus benefiting the settlers below rather than otherwise. That he made some examination of the lands in the vicinity of Kilgore and which is the property of the appellants, and expresses the opinion that the spongy nature of the soil resulting from early irrigation, in that vicinity, should prolong the flow of water in the creek below and thus furnish water later in the season to the settlers below.\\nMuch evidence was introduced by appellant and respondent as to the condition of this stream in the vicinity of the respondent's lands dating from the early '60's down to the time of the trial. It is shown that the settlement in and about Kilgore is of but recent date. The evidence of the condition of the stream from July 1st until in September, when the water begins to increase, is very conflicting, some witnesses testifying that when they first knew the stream at the old stage crossing near respondent's lands there was water there at all seasons of the year; others testifying that at about the same dates they had to go miles above the crossing to get water for their horses. It is shown that trees were planted at the old town of Camas or in tbat vicinity, and that they grew and prospered until after the settlements above referred to, when for the want of water they died. A careful reading of the evidence leads us to the conclusion that a jury might have had some difficulty in arriving at the true state of facts as to this question.\\nUnder the well-settled and oft-repeated rule that' this court will not disturb' the findings of the trial court where there is a substantial conflict in the evidence, we should have no difficulty in arriving at a conclusion in this case.\\nThe judgment of the lower court upon the order overruling the motion for a new trial is affirmed, with costs to respondent.\\nIt appears from the record that the. appeal from the judgment was not taken within one year, as provided by the statute, section 4807, Bevised Statutes. It is therefore ordered that that appeal be dismissed, with costs in favor of respondent.\\nSullivan, C. J., and Ailshie, J., concur.\"}"

idaho/3341112.json

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+"{\"id\": \"3341112\", \"name\": \"LANE v. PACIFIC AND IDAHO NORTHERN RAILWAY COMPANY\", \"name_abbreviation\": \"Lane v. Pacific & Idaho Northern Railway Co.\", \"decision_date\": \"1902-01-22\", \"docket_number\": \"\", \"first_page\": \"230\", \"last_page\": \"240\", \"citations\": \"8 Idaho 230\", \"volume\": \"8\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:46:29.603910+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sullivan- and Stoekslager, JJ., concur. *\", \"parties\": \"LANE v. PACIFIC AND IDAHO NORTHERN RAILWAY COMPANY.\", \"head_matter\": \"(January 22, 1902.)\\nLANE v. PACIFIC AND IDAHO NORTHERN RAILWAY COMPANY.\\n[67 Pac. 656.]\\nContract \\u2014 Specific Performance \\u2014 Railway Company \\u2014 Building Switch. \\u2014 Where a contract under which a railway company enters and obtains a right of way provides that it shall place its fences at the edge of the pit ground, on both sides of its track, and that it shall construct a switch or sidetrack on the land granted for the right of way, specific performance will be decreed, and cannot be defeated on the ground that it is impracticable to compel specific performance.\\nContract \\u2014 Implied Promise \\u2014 Acceptance \\u2014 Estoppel. \\u2014 Where a party to contract accepts it, acts under it, and obtains all of the benefits that were intended to be granted by it, he is estopped from objecting to the same on the ground that he did not sign it, as the law implies a promise on his part to perform the conditions of such contract from his act of accepting it.\\nImplication from Promise to do a Thins. \\u2014 Where a party agrees to do a certain thing, and does' not specify how it shall be done, the law implies a promise on his part to do it in the usual manner, and that it shall be complete and effectual for the use to which the same kind of thing is generally applied.\\nAlteration of Contract \\u2014 Effect on Innocent Party. \\u2014 The alteration of a contract by adding words thereto without the knowledge or consent of the obligor, after its delivery, while ground for rescission at the option of the obligor, does not affect its rights, and he may have the contract enforced as originally made by him.\\n(Syllabus by the court.)\\nAPPEAL from District Court, Washington County.\\nFrank Harris and Lot L. Feltham, for Appellants.\\nThis is an action to compel specific performance of a contract for right of way for a railroad. The defendant could not challenge the validity of the instrument upon which this suit was brought as it had received in full all the benefits specified thereunder. \\u201cA party is estopped from denying the validity of an' instrument by virtue of which alone he has obtained possession of property, which he still holds.\\u201d (Biglow on Estoppel, 684, 685; Denison v. Willcut (Idaho), 35 Pae. 699.) A railway must make compensation for right of way across possessory claims. (Spokane Fails etc. By. Co. v. Zeigler, 167 H. S. 65, 17 Sup. Ct. Eep. 728.) A complaint is not demurrable on the score of want of facts, if upon the facts stated the plaintiff is entitled to any relief, either at law or in equity. (Grain v. Aldrich, 38 Cal. 514, 99 Am. Dee. 423; White \\u00b6. Lyons, 42 Cal. 279; Hulsman v. Todd, 96 Cal. 228, 31 Pac. 40.) To take a contract for the sale of lands out of the statute of frauds a mere note or memorandum in writing, subscribed by the vendor or his agent, containing the names of the parties and a summary statement of the terms of the sale, either expressly or by reference to something else, is all that is required. (Idaho Eev. Stats., sec. 6009; Joseph v. Holt, 37 Cal. 254; Ide v. Lueister, 10 Mont. 5, 24 Am. St. Eep. 17, 24 Pac. 695.) \\u201cAn ex- ecutory contract for the sale of real estate is valid and binding, and can be enforced by the vendee if signed by the vendor alone.\\u201d (Cavanaugh v. Qasselman, 88 Cal. 543, 26 Pac. 517.) And the rule is not changed even though the vendor be- a married woman, for she may enforce a contract for the sale of real estate. (Banbury v. Arnold, 91 Cal. 606, 27 Pac. \\u2019936.)\\nJ. H. Eichards, for Eespondent.\\nTo entitle appellants to a specific performance of said contract, there must be such certainty in the allegations as to time when the contract is to be performed, the manner in which the same is to be performed, the extent to which the contract is to be performed, and the certainty as to what is to be done under the contract, as to enable a court to render a decree possible to be performed without making a new contract for the parties. (Agard v. Valencia, 39 Cal. 292, 302; Gates v. Gamble, 53 Mich. 181, 18 N. W. 631; South Wales By. Go. v. Wythes, 5 De Gex, M. & G. 880; Minturn v. Baylis, 33 Cal. 129; Magee v. McManus, 70 Cal. 553, 12 Pac. 451.) Eespondent contends that a contract may be declared in haec verba or according to its legal effect. When declared in haec verba the instrument incorporated in the complaint must show, upon its face, in . direct terms and not by implication, all the facts which the pleader would have to allege had he elected to set it forth by averment. (More v. Blmore Go. Irr. Go., 3 Idaho, 729, 35 Pae. 171; New Orleans v. New Orleans etc. B. Go., 44 La. Ann. 64, 10 South. 401; Shenandoah Valley B. Go. v. Lewis, 76 Va. 833; Golson u. Thompson, 2 Wheat. 336; 1 Story\\u2019s Equity Jurisprudence, secs. 764, 767; Fry on Specific Performance, sec. 229.) Equity will not ordinarily enforce specific performance of a covenant by a grantee to build on the premises conveyed, since damages at law for breach of the covenant are generally an adequate remedy, and the court has no power to compel performance of such condition. (Madison v. Brittin, 60 N, J. Eq. 160, 46 Atl. 652; Haisten v. Savannah etc. B. Go., 51 Ga. 199; Baton v. Lexington etc. B. Go., 22 Ky. App. 1133, 59 S. W. 864; Coding v. Bangor, 94 Me. 542, 48 Atl. 114.) The rule is almost universal that a covenant to build may not be enforced specifically, for the execution of such contract would be impracticable, if not impossible, for a court to supervise, whereas the remedy of damages would afford full redress, and this is especially true of covenants to construct or repair railways. (Oregonian R. Co. v. Oregon R. etc. Co., 11 Saw. 33, 28 Fed. 346; Port Clinton R. Co. v. Cleveland etc. R. Co., 13 Ohio St. 544; Fallon v. Railroad Co., 1 Dill. (IT. S.) 121, Fed. Cas. No. 4629; Ross v. Union Pac. R. Co., 1 Woolw. 26, Fed. Cas. No. 12,080; Railway Co. v. Rust, 17 Fed. 275, 282; Center v. Davis, 48 Cal. 453; Burners v. Bean, 13 Gratt. (Va.) 404; Angus v. Robinson, 32 Vt. 60; 20 Ency. of PI. & Pr. 438; Jacobs v. Peterborough etc. R. Co., 8 Cush. 223.)\", \"word_count\": \"4010\", \"char_count\": \"22498\", \"text\": \"QUAELES, C. J.\\n\\u2014 This action was commenced in the court below to obtain a decree for the specific performance of those covenants in the contract hereinafter set forth, relating to the construction of a siding, and the place where the fence of the defendant corporation shall be erected upon its line of way. Said contract is set forth, in effect, in the complaint, and attached to said complaint as a part thereof, and is in words and figures as follows, to wit:\\n\\\"May 11, 1899.\\n\\\"This agreement, made and entered into by and between J. W. Lane and Victoria Lane, his wife, of Weiser river, Washington count}^ Idaho, the parties of the first part, and the Pacific and Idaho Northern Eailway Company, a corporation of Idaho, the party of the second part, witnesseth, that the said parties of the first part, for and in consideration of the sum of three hundred and seventy-five dollars, the receipt whereof is hereby acknowledged, do hereby agree to sell and quitclaim, and do hereby sell and quitclaim, forever, all our right, title, and interest to second party herein in a strip or piece of land one hundred feet wide, and being fifty feet wide on each side of the center line of the survey now made and staked through all of our land (being unsurveyed government land) lying and being on the Weiser river, and being part of the premises on-which we now, live, and upon which we have lived for the last eight years, and hereby give said second party, its agents and employees, the right to enter upon said land at any time for the purpose of building, constructing, and operating its said railway upon, through, and across said premises where said survey is now made. Said second party further agrees to make for first parties an underground crossing fourteen feet wide, and as high as the grade of said road will permit. Said culvert or crossing is to be made where first parties desire, at or near where first parties cross the Weiser river with wagons, buggies, etc., and near their present dwelling-house, and on bank of said river. Said second party further agrees to-put up, build, and construct for first parties' another underground crossing eight feet wide, and as high as the grade of the road will permit, at another place upon said ranch where first parties may desire. Also to put in a wooden culvert or box at least three feet square at any place where the first parties may desire, under and across the breem of said road, for first parties' hogs to cross under and through to the river and back to the pasture. Also, second party agrees to build a switch or sidetrack on said ranch at or near the dwelling of said first parties, and agree to build sufficient sized wooden flumes under their said track to carry the water used for irrigation purposes at and where all laterals cross second party's right of way on said ranch. First party is to have the right to farm and use any and all of said second party's right of way not fenced and actually in use by second party, and second party is to build its fence on the edge of the pit ground through said ranch, and, in fencing, to fence no more of said right of way than is absolutely necessary to protect its road and the banks and fills made in constructing same; and first parties are to have the use of all of the lands of second party not so fenced, for his' crops, etc., free of charge, until such times as it is necessary for second party to fence and use same. The agreements and stipulations herein are to be no way construed as to give second party any rights, claims, or possession of any irrigation ditches or ditches northerly or outside of any inclosure; and if any flitch or ditches, flumes or laterals, are crossed or in any manner interfered with, outside of any inclosure, then any and all damages sustained 'by first parties is to be settled and paid for by second parties entirely outside of this contract, the same as if no contract of any kind had ever been made. First party further agrees to give second party all ground necessary for switch purposes, if said switch is located at or near his dwelling, and on his house place. \\\"J. W. LANE,\\n\\\"VICTOBIA LANE,\\n\\\"JNO. W. AYEES,\\n\\\"Witness.\\\"\\nThe complaint alleges that the plaintiffs have resided upon said land ever since May, 1890; that plaintiffs are citizens of the United States, and that they have so lived upon said lands with the intent and purpose of entering the same under the homestead and desert land laws of the general government; that said contract was accepted by the defendant company, and that said defendant has entered upon said lands, constructed its railway across and over same, and has ever since used and enjoyed said right of way and privileges granted to it by the terms of said contract; that the plaintiffs have done and performed on their part all and every of the obligations and stipulations of said contract' by them agreed to be done and performed, and that said plaintiffs did tender to said defendant on the ninth day of May, 1901, a good and sufficient quitclaim deed, duly executed and acknowledged by plaintiffs, which deed the said defendant refused to accept; that the defendant -has failed to comply with the covenants and stipulations of said contract in the following particulars, to wit: It has failed and refused to build a switch or sidetrack on the said lands of the plaintiffs, although requested by plaintiffs so to do, and has failed and refused to place its fences on the. edge of the pit ground through the edge of said lands, and has failed and refused to give plaintiffs the use of said right of way outside of said pit ground, although requested so to do, but has, over the objections and protests of the plaintiffs, constructed its fences on each side of the track fifty feet from the center of its track, and thirteen feet farther from the center of said track than- the edge of the pit ground, and that much farther than is necessary to- protect said track, roadbed, banks, and fills made in constructing the same, and so maintains said fences, depriving plaintiffs of a strip of land on each side of the track thirteen feet wide and one mile long; and that said land is valuable for the growing of crops. The complaint also alleges that, after the delivery of said contract to the defendant, the words \\\"if convenient\\\" were interpolated into same after the words \\\"and second party is to build its fence on the edge of the pit ground through said ranch,\\\" without the knowledge or consent of the plaintiffs'. The prayer is that the words \\\"if convenient\\\" be stricken from said contract, and that defendant be required by decree of the court to place its fences along the edge of its pit ground, and to construct and build a switch or sidetrack on the said lands of plaintiffs, and for general relief. To the said complaint the defendant filed the following demurrer, to wit: \\\"Comes now the above-named defendant by its attorney, J. H. Richards, and demurs to the third amended complaint of plaintiffs filed herein, and for cause of such demurrer says: 1. That said complaint does not state facts sufficient to constitute a cause of action; 2. That said complaint does not state facts sufficient to entitle the plaintiffs to the relief demanded in said complaint, or any relief; 3. That said complaint does not state facts sufficient to entitle the plaintiff to the reformation of the alleged contract; 4. That said complaint does not state facts sufficient to the relief demanded in said complaint, in this: That defendant be required to build a switch or sidetrack to the alleged railway on the land described in said complaint, at or near the dwelling-house of plaintiffs or elsewhere; 5. That said complaint does not state facts sufficient to entitle the plaintiffs to the relief demanded in said complaint, to wit, that defendant be required to place its alleged side fence on the edge of the alleged pit ground through said described land, or elsewhere; 6. That said complaint does not state facts sufficient to entitle plaintiffs to the relief demanded in said complaint, in this: That plaintiff have the use of all or any of said right of way not fenced, as alleged, for the purpose of raising crops, free of charge, or otherwise, at any time.\\\" The court sustained said demurrer, and entered judgment of dismissal in favor of defendant, from which plaintiffs appeal.\\nWe think that the court below erred in sustaining said demurrer. The complaint stated a cause of action. The allegations of the complaint, for the purposes of the demurrer, are- taken as true. The contract was accepted by the defendant. It was fair on its face, equitable, reasonably certain, supported by a valuable consideration, contained mutual obligations, was executed by plaintiffs, and partly executed by the defendant, who acquired all of the benefits intended to be granted to it by said contract. It is apparent from the contract . itself that one of the controlling considerations for the execution of said contract was the agreement or stipulation relating to the placing of defendant's fences on both sides of its track at the edge of the pit ground, and the building of the switch or sidetrack on the lands of the plaintiffs. Now, having received the benefits of the said contract, the defendant, in equity, is required to bear the burdens thereof. It is apparent that no measure of damages can be found whereby the damages accruing to the plaintiffs by the failure of the defendant to comply with the contract in the particulars named can be ascertained with certainty. Analogous cases involving the same principle are numerous, but cases where the facts are the same as those in the case at bar probably cannot be found. Mr. Fry, in his admirable work upon Specific Performance of Contracts, third American edition, at section 81, says: \\\"Thus the court has in numerous cases enforced on railway companies contracts to make and maintain works for the convenience of the lands of the plaintiff. It has done this in cases in which the terms of the contract have been general and difficult to execute.\\\" And at section 82 the same author says: \\\"In one of these eases a contract by the company to construct and maintain, upon land belonging to, and to be provided by, a land owner, a siding of specified length alongside the line, was held capable of specific performance; and the company were not allowed to resist performance on the ground that the plaintiff had, before filing his bill, entered into a negotiation (which failed) for a money compensation.\\\" At section 83 the same author, in speaking of the decision in Price v. Mayor etc. of Penzance, 4 Hare, 506, says that \\\"Wigram, Y. C., observed that, the defendants having had the benefits of the contract in specie, the court would go any length that it could to compel them to perform their contract in specie.\\\" The learned author cites a number of English cases as supporting the text. It is true that the contract does not specify the length of the switch or sidetrack. In our view, that is not necessary. It is a well-established rule that where a party agrees to do a certain thing, and does not specify how it shall be done, the law implies a promise on his part to do it in the usual manner, and that it shall be complete and effectual for the use to which the same kind of thing is generally applied. The contract contemplated a sidetrack 'or switch capable of being used for the loading or unloading of cars as the same is usually done at country sidings. As to its length, that is a matter largely within the pleasure of the defendant; but it undertook to construct a sidetrack or switch upon the land furnished by plaintiffs, and that it must do, if plaintiffs establish their case as pleaded in the complaint, in such way that the same may be used in the manner and for the purposes for which switches are ordinarily used.\\nIt is argued by the respondent that the demurrer was properly sustained for the reason that the complaint shows that the contract was not executed by the defendant corporation. It was not signed by any agent or officer of the corporation for it, but that was not necessary. By accepting the contract, acting under it, and obtaining its benefits, the defendant impliedly agreed to comply with the covenants thereof. In a note to Woodruff v. Woodruff, 44 N. J. Eq. 349, 1 L. R. A. 380, 16 Atl. 4, it is said: \\\"Where one by deed poll grants land and conveys' any right, title, or interest in real estate to another, and where there is any money to be paid by the grantee to the grantor, or for his use and benefit, and the grantee accepts the deed and enters on the estate, the grantee becomes bound to make such payment.or perform such duty.\\\" A number of cases have been cited by the respondent to show that courts refuse to decree specific performance of building contracts. The rule that an ordinary building contract will not be enforced by decree for specific performance is' based upon several sound reasons, one of which is that, if the contractor refuses to comply with his contract, the landlord may perform the contract, and thus definitely determine the amount of damage sustained. This reason does not apply to the case at bar, for the plaintiffs have no right to enter upon the right of way which they have granted to the defendant for the purpose of constructing improvements thereon. They cannot construct the switch, or in any manner interfere with the roadbed of the defendant. Action for specific performance is the proper remedy. The facts pleaded show that the plaintiffs have no adequate remedy at law.\\nIt is also contended by respondent that a decree for specific performance so far as the fence is concerned would be an idle thing, as the defendant is, under the contract, the judge as to how much of the right of way is necessary to protect the cuts and fills; hence, that it may, under the contract, place its fence where it pleases on the right of way. We think the contract definitely fixes the position m which the fences shall be placed, viz., as near the edge of the pit ground on both sides of the track as possible, giving all necessary protection to the roadbed, cuts, and fills. As to whether it shall be one foot or some other distance is to be determined from the facts as they shall appear in the evidence, and may depend upon the depth of a cut or the height of a fill at a given point, and the liability of the earth to slide at given points. That distance may or may not be greater at one given point than at another. The facts showing necessity to place it beyond the edge of the pit -must appear. It is not difficult for the defendant to comply with the stipulation in the contract relating to fences.\\nIt is argued by the respondent that courts do not engage in building switches or railroads or fences, and cannot specifically enforce contracts of the kind involved in this ease, and it cites the case of Railroad Co. v. Rust (C. C.), 17 Fed. 275, as sustaining this position. We do not think the decision named has any bearing as a precedent in the ease at bar. The facts in that case are not at all like those set forth in the complaint in this action. It is true that the court will not undertake to build the switch contemplated in the said contract, but, if the facts alleged in the complaint shall be established at the trial, it will be the duty of the court to decree that the defendant shall do so, and the power to compel compliance with such decree undoubtedly exists in the court.\\nThe complaint alleges that, after the execution and delivery of said contract by plaintiffs to the defendant, the words \\\"if convenient\\\" were interpolated into it without the knowledge or consent of the plaintiffs, and asks that the contract be reformed by striking out said words. If the fact should be determined as alleged, said words should be stricken from said contract. While such alteration would be ground for rescission by the plaintiffs, if such alteration was in fact made, yet it does not affect their rights. The defendant could not add those words, and then accept it in its altered form, and bind the plaintiffs, without their knowledge or consent.\\nFor the foregoing reasons, the judgment of dismissal is reversed, and the cause remanded to the district court, with instructions to set aside the order sustaining the demurrer, and to enter an order overruling the same, dnd for further proceedings. Costs of appeal awarded to the appellants.\\nSullivan- and Stoekslager, JJ., concur. *\"}"

idaho/335627.json

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+"{\"id\": \"335627\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Matthew L. VENEROSO, II, Defendant-Appellant\", \"name_abbreviation\": \"State v. Veneroso\", \"decision_date\": \"2003-05-14\", \"docket_number\": \"No. 27925\", \"first_page\": \"925\", \"last_page\": \"930\", \"citations\": \"138 Idaho 925\", \"volume\": \"138\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:07:17.831919+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Judge LANSING and Judge GUTIERREZ, concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Matthew L. VENEROSO, II, Defendant-Appellant.\", \"head_matter\": \"71 P.3d 1072\\nSTATE of Idaho, Plaintiff-Respondent, v. Matthew L. VENEROSO, II, Defendant-Appellant.\\nNo. 27925.\\nCourt of Appeals of Idaho.\\nMay 14, 2003.\\nMolly J. Huskey, State Appellate Public Defender; Paul S. Sonenberg, Deputy Appellate Public Defender, Boise, for appellant. Paul S. Sonenberg argued.\\nHon. Lawrence G. Wasden, Attorney General; Karen A. Hudelson, Deputy Attorney General, Boise, for respondent. Karen A. Hudelson argued.\", \"word_count\": \"2643\", \"char_count\": \"16325\", \"text\": \"PERRY, Judge.\\nMatthew L. Veneroso, II, appeals from his judgment of conviction entered following a conditional plea of guilty to possession of marijuana with the intent to deliver. We affirm.\\nI.\\nFACTS AND PROCEDURE\\nDuring the early morning hours of December 20, 2000, a police officer observed a vehicle parked on the street in a new housing development in Coeur d'Alene. The only buildings in the development were model homes. The street was dark and the officer observed no other persons or traffic. This was the officer's normal patrol area and, under these circumstances, he thought it was unusual for a vehicle to be parked there. The officer approached the vehicle and noticed that its engine was running. Two individuals were seated inside. Veneroso, the driver, told the officer that Veneroso and his passenger had been to a friend's home and had nowhere else to go. Because the two individuals appeared to be under eighteen and in violation of curfew, the officer asked them for identification. While Veneroso retrieved his driver's license, the officer used his flashlight to visually scan the passenger compartment. On the rear driver's side floorboard, the officer saw a small metal spoon commonly used by those involved with illegal drugs. In the front driver's side, the officer saw a gold-colored object near Veneroso's right leg tucked between the driver's seat and the center console. Each time he was asked about the object, Veneroso nervously responded that it was nothing and moved his hand and leg closer to the object. To get a better look, the officer moved toward the front of the vehicle where he could see through the windshield. The officer illuminated the object with his flashlight and discovered that it was a knife. Upon the officer's request, Veneroso stepped out of the vehicle. The knife, with a four or five-inch, double-edged blade, was removed. Based on these facts, the officer believed that the vehicle contained weapons or illegal items. Veneroso was arrested for possession of a concealed weapon, the knife.\\nThe passenger exited the vehicle while a search of the passenger compartment was conducted. Officers discovered, in the front seat area, two notebooks containing information the officers recognized as being associated with drug trafficking, including names, phone numbers, dollar amounts, and numbers indicating measurements of weight. In addition to the spoon in the rear seat area, the officers discovered that the center part of the rear seat could be pulled down to allow access to the trunk. An officer peered into the trunk through the center section and observed a backpack and a small safe. Inside the safe, officers found $240 in cash, drug paraphernalia, and plastic baggies containing methamphetamine and marijuana. Veneroso was charged with possession of methamphetamine with the intent to deliver, possession of marijuana with the intent to deliver, possession of marijuana, carrying a concealed weapon, and possession of drug paraphernalia. Veneroso moved to suppress the evidence obtained during the search of his vehicle as well as statements made to police. After a hearing, the district court denied the motion. Veneroso entered a conditional plea of guilty to possession of marijuana with the intent to deliver. I.C. \\u00a7 37-2732(a)(1)(B). Veneroso reserved the right to appeal the district court's order denying his motion to suppress. The remaining charges were dismissed.\\nOn appeal, Veneroso argues that the district court erred when it denied his motion to suppress, asserting that the search was incident to an arrest unsupported .by probable cause. Veneroso contends that, even if the arrest was lawful, the search exceeded the scope of the search incident to arrest exception to the warrant requirement. Additionally, Veneroso asserts that the doctrine of inevitable discovery did not apply in this case. The state argues that the arrest was supported by probable cause, that the search was not beyond the scope of the search incident to lawful arrest exception, and that the search was also proper under the automobile exception to the search warrant requirement.\\nII.\\nANALYSIS\\nThe standard of review of a suppression motion is bifurcated. When a decision on a motion to suppress is challenged, we accept the trial court's findings of fact which are supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct.App.1996). At a suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct.App.1999).\\nNeither party in this case disputes the facts. Rather, Veneroso argues that the officer lacked probable cause to arrest him for carrying a concealed weapon, thus rendering the search incident to his arrest unlawful. According to Veneroso, the evidence resulting from the search was illegally obtained and the district court should have granted his motion to suppress.\\nAn arrest is lawful when based upon probable cause. See State v. Kerley, 134 Idaho 870, 874, 11 P.3d 489, 493 (Ct.App.2000). Probable cause is \\\"the possession of information that would lead a person of ordinary care and prudence to believe or entertain an honest and strong presumption that such person is guilty.\\\" State v. Julian, 129 Idaho 133, 137, 922 P.2d 1059, 1063 (1996). In analyzing whether probable cause existed, this Court must determine whether the facts available to the officers at the moment of the search warranted a person of reasonable caution to believe that the action taken was appropriate. Id.; State v. Hobson, 95 Idaho 920, 925, 523 P.2d 523, 528 (1974). The application of probable cause to arrest must allow room for some mistakes by the arresting officer; however, the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusion of probability. Klingler v. United States, 409 F.2d 299, 304 (8th Cir.1969); Julian, 129 Idaho at 137, 922 P.2d at 1063. The facts making up a probable cause determination are viewed from an objective standpoint. Julian, 129 Idaho at 137, 922 P.2d at 1063. In passing on the question of probable cause, the expertise and the experience of the officer must be taken into account. State v. Ramirez, 121 Idaho 319, 323, 824 P.2d 894, 898 (Ct.App.1991).\\nIn this case, carrying a concealed weapon was the underlying offense for which Veneroso was arrested. Idaho Code Section 18-3302(7) provides that a person shall not carry a concealed weapon without a license to do so. Furthermore, I.C. \\u00a7 18-3302(9) provides that while in any motor vehicle inside the confines of a city, a person shall not carry a concealed weapon on or about his or her person without a license. Veneroso concedes that the knife in his vehicle was the type of weapon covered by the statute. However, Veneroso asserts that the knife was not concealed because the officer was able to identify the knife from a vantage point outside the vehicle.\\nThe general test of concealment is whether a weapon is so carried that it is not discernible by ordinary observation. State v. McNary, 100 Idaho 244, 247, 596 P.2d 417, 420 (1979). In State v. Button, 136 Idaho 526, 37 P.3d 23 (Ct.App.2001), a driver was stopped for fictitious display of license plates. The officer approached the driver's side of the vehicle, scanned the interior, and observed no weapons present. However, when asked about weapons, the driver informed the officer of a handgun located between the front seats and under a purse. The officer moved to the passenger's side and, looking through the window, spotted approximately two inches of the butt of a handgun between the seats. The driver was arrested for possession of a concealed weapon. A further search revealed possession of drugs. The driver moved to suppress the evidence found as a result of the arrest, arguing that because the handgun was visible to the officer, it was not concealed. The Court concluded that, because the weapon remained concealed until the officer moved to a particular vantage point, the weapon was not discernible by ordinary observation. The Court held that the district court did not err when it denied the driver's motion to suppress.\\nThe general facts of this case are, in all material respects, indistinguishable from the facts in Button. We conclude that the knife was not discernible by ordinary observation. Instead, it was identified by a trained officer, who was specifically looking for weapons, only after he moved to a particular vantage point. Had he not peered into the vehicle from a different angle, the knife would have gone unobserved as such. The positioning of the knife between the seat and the console concealed it from casual observation. These facts show that the officer had probable cause to believe Veneroso was unlawfully carrying a concealed weapon. Thus, we hold that Veneroso's arrest was lawful.\\nEven though Veneroso's arrest was lawfully made, the state must show that the search conducted after his arrest was reasonable. The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Warrantless searches are presumed to be unreasonable and therefore violative of the Fourth Amendment. State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 (1995). However, the state may overcome this presumption by demonstrating that a warrantless search either fell within a well-recognized exception to the warrant requirement or was otherwise reasonable under the circumstances. Id. In this case, the state argues as one alternative that the search was reasonable and lawful under the automobile exception to the search warrant requirement.\\nWe have previously held that Veneroso's arrest was lawful. Thus, the search of the passenger compartment was legal as a search incident to the arrest. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); State v. Charpentier, 131 Idaho 649, 962 P.2d 1033 (1998). Veneroso asserts, however, that a search incident to arrest may not be extended into the trunk even where, as here, the trunk was accessible from the passenger compartment. We find it unnecessary to reach that issue because we conclude that the trunk search was lawful under the automobile exception to the warrant requirement. Under the automobile exception, police officers may search an automobile and the containers within it where they have probable cause to believe that the automobile contains contraband or evidence of a crime. State v. Gallegos, 120 Idaho 894, 898, 821 P.2d 949, 953 (1991). Probable cause is a flexible, common-sense standard. A practical, nontechnical probability that incriminating evidence is present is all that is required. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). The officer's determination of probable cause must be based on objective facts which would be sufficient to convince a magistrate to issue a warrant under similar circumstances. United States v. Ross, 456 U.S. 798, 808, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); State v. Shepherd, 118 Idaho 121, 124, 795 P.2d 15, 18 (Ct.App.1990). In passing on the question of probable cause, the expertise and the experience of the officer must be taken into account. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Ramirez, 121 Idaho at 323, 824 P.2d at 898. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. Ross, 456 U.S. at 825, 102 S.Ct. 2157.\\nVeneroso's car was parked on a dark street during the early morning hours in a residential area that was under construction.\\nNo other persons or traffic were observed. This was the officer's normal patrol area, and he thought it was unusual for a vehicle to be parked there at that time. After approaching the vehicle, the officer observed a small spoon lying on the back seat floorboard. From previous training and experience, the officer recognized the spoon as of the type commonly used by those involved in illegal drugs. When the officer asked about the gold object in the driver's side of the vehicle, Veneroso nervously said it was nothing and moved his hand closer to the object. Veneroso's body language and statements led the officer to believe he was nervous and that there was something illegal in the vehicle that Veneroso did not want the officer to discover. Once inside the passenger compartment of the vehicle, officers discovered, in the front seat area, two notebooks containing information the officers recognized as being associated with drug trafficking, including names, phone numbers, dollar amounts, and numbers indicating measurements of weight. Under these facts, the officer's search of the trunk of Veneroso's vehicle was supported by probable cause to believe that additional weapons, drugs, or other contraband would be found in the vehicle and was justified without a warrant under the automobile exception.\\nAs noted by Veneroso, this exception was not relied upon by the state during the hearing on the motion to suppress, nor was it relied upon by the district court in denying Veneroso's motion. During the hearing on the motion, the state indicated that the automobile exception probably would not apply under the facts of this case. On appeal, Veneroso argues that the state cannot now argue that the warrantless search was valid under the automobile exception.\\nIn Shepherd, this Court addressed the issue of whether a warrantless search was valid under an exception to the warrant requirement that was not the basis of the lower court's decision denying the defendant's suppression motion. See Shepherd, 118 Idaho at 124, 795 P.2d at 18. In that ease, the lower court denied the defendant's suppression motion, finding that the search was valid under the inventory exception. The state's argument rested exclusively on the inventory exception both before the lower court and on appeal. This Court, however, held that the warrantless search was proper under the search incident to an arrest and automobile exceptions, and chose not to address the exception relied upon below. In so holding, this Court stated that the officer's explanation for searching the defendant's automobile is not controlling. Similarly, this Court is not limited by the prosecutor's argument or the absence thereof. State v. Bower, 135 Idaho 554, 558, 21 P.3d 491, 495 (Ct.App.2001). The lawfulness of a search is to be determined by this Court, based upon an objective assessment of the circumstances which confronted the officer at the time of the search. State v. Kopsa, 126 Idaho 512, 519 n. 4, 887 P.2d 57, 64 n. 4 (Ct.App.1994); Shepherd, 118 Idaho at 124, 795 P.2d at 18. In light of Shepherd and Bower, we uphold the warrantless search of Veneroso's vehicle under the automobile exception. We, therefore, need not address the search incident to arrest exception pursuant to Belton nor the issue raised by Veneroso regarding the doctrine of inevitable discovery.\\nIII.\\nCONCLUSION\\nThe facts available to the officer at the time of Veneroso's arrest were sufficient to support the officer's probable cause to believe Veneroso had committed the crime of carrying a concealed weapon. The search of the vehicle, including the trunk area was justified under the automobile exception to the warrant requirement. The district court did not err in denying Veneroso's motion to suppress. Accordingly, Veneroso's judgment of conviction for possession of marijuana with th\\u00e9 intent to deliver is affirmed.\\nChief Judge LANSING and Judge GUTIERREZ, concur.\"}"

idaho/357928.json

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+"{\"id\": \"357928\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Mark McCUTCHEON, Defendant-Appellant\", \"name_abbreviation\": \"State v. McCutcheon\", \"decision_date\": \"1996-08-27\", \"docket_number\": \"No. 22482\", \"first_page\": \"168\", \"last_page\": \"170\", \"citations\": \"129 Idaho 168\", \"volume\": \"129\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T20:35:52.806593+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALTERS, C.J., and LANSING, J., concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Mark McCUTCHEON, Defendant-Appellant.\", \"head_matter\": \"922 P.2d 1094\\nSTATE of Idaho, Plaintiff-Respondent, v. Mark McCUTCHEON, Defendant-Appellant.\\nNo. 22482.\\nCourt of Appeals of Idaho.\\nAug. 27, 1996.\\nTimothy H. Gresback, Coeur d\\u2019Alene, for appellant.\\nHon. Alan G. Lance, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.\", \"word_count\": \"908\", \"char_count\": \"5473\", \"text\": \"PERRY, Judge.\\nThis case requires that we review the validity of a plea of guilty to a charge of driving without privileges. We affirm the judgment of conviction.\\nOn December 29, 1994, Mark McCutcheon was cited for driving without privileges. I.C. \\u00a7 18-8001. He pled guilty to that charge at his initial appearance in traffic court, and the magistrate entered a judgment of conviction. McCutcheon was sentenced to six months in the county jail. McCutcheon then appealed to the district court, claiming that the magistrate erred in accepting his guilty plea. The district court found that the magistrate had failed to inquire of McCutcheon whether a plea bargain existed and, hence, erred in accepting the plea. However, the district court held that such error was harmless and affirmed the judgment of conviction. McCutcheon appeals.\\nOn appeal to this Court, McCutcheon claims that the magistrate failed to properly advise him prior to accepting his guilty plea. McCutcheon argues that, because the magistrate failed to inquire of him whether any plea agreement existed, the judgment of conviction should be set aside on appeal. I.C.R. 11(c)(5). The state contends that any error that resulted from the magistrate's alleged omission was not fundamental error, and therefore, not properly a matter raised for the first time on appeal.\\nOn review of a decision of the district court, rendered in its appellate capacity, we examine the record of the trial court independently of, but with due regard for, the district court's intermediate appellate decision. State v. Bitt, 118 Idaho 584, 585 n. 1, 798 P.2d 43, 44 n. 1 (1990); State v. Bowman, 124 Idaho 936, 939, 866 P.2d 193, 196 (Ct.App.1993). Issues not raised before the trial court cannot later be raised on appeal unless the alleged error would constitute \\\"fundamental error.\\\" State v. Lavy, 121 Idaho 842, 844, 828 P.2d 871, 873 (1992); State v. Mauro, 121 Idaho 178, 180, 824 P.2d 109, 111 (1991). An error is fundamental when it so profoundly distorts the trial that it produces manifest injustice and deprives the accused of his fundamental right to due process. Lavy, 121 Idaho at 844, 828 P.2d at 873; Mauro, 121 Idaho at 180, 824 P.2d at 111.\\nThe voluntariness of the guilty plea and waiver is to be reasonably inferred from the record as a whole. State v. Carrasco, 117 Idaho 295, 300, 787 P.2d 281, 286 (1990); I.C.R. 11(c). It is well settled that the trial court is not specifically required to follow any prescribed litany or to enumerate rights which a defendant waives by pleading guilty, so long as the record as a whole, and all reasonable inferences drawn therefrom, show that the plea was voluntarily, knowingly and intelligently made. Carrasco, 117 Idaho at 300, 787 P.2d at 286, citing State v. Colyer, 98 Idaho 32, 557 P.2d 626 (1976); I.C.R. 11.\\nIdaho Criminal Rule 11(c)(5) requires that, \\\"where there is a plea agreement, the record must show 'the nature of the agreement and that the defendant was informed that the court is not bound by any promises or recommendation from either party as to punishment.'\\\" Mauro, 121 Idaho at 181, 824 P.2d at 112. The magistrate did not specifically inquire of McCutcheon as to the existence of a plea bargain. However, the record sufficiently indicates that no such agreement existed. Nothing in the record provides support for the existence of a plea agreement. McCuteheon has never claimed that he was promised a lesser or different sentence and is not attempting to enforce an alleged agreement that was somehow breached by the state. McCuteheon pled guilty at his initial appearance in traffic court. There is nothing in the record to indicate that McCuteheon had any contact with a prosecutor regarding the citation pri- or to entering his plea.\\nMcCuteheon was informed prior to his appearance, that he had the right to seek a continuance, plead not guilty or guilty. He was further advised that by pleading guilty he waived numerous rights. The magistrate specifically asked McCuteheon if he realized that the court could impose a sentence of a $500 fine, up to six months in jail and an additional six-month driver's license suspension. McCuteheon answered in the affirmative. The record indicates that McCuteheon was aware that he may receive the maximum penalty, and was, therefore, not under the impression that, as a result of a plea agreement with the prosecutor, he would receive a lesser sentence. If no agreement existed, further inquiry into the terms of the agreement was unnecessary. See I.C.R. 11(c)(5).\\nThere was no reversible error by the magistrate in accepting McCutcheon's plea. Hence, the judgment of conviction is affirmed.\\nWALTERS, C.J., and LANSING, J., concur.\\n. (c) Acceptance of plea of guilty. Before a plea of guilty is accepted, the record of the entire proceedings, including reasonable inferences drawn therefrom, must show:\\n(5) Whether any promises have been made to the defendant, or whether the plea is a result of any plea bargaining agreement, and if so, the nature of the agreement and that the defendant was informed that the court is not bound by any promises or recommendation from either party as to punishment.\"}"

idaho/357963.json

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+"{\"id\": \"357963\", \"name\": \"Joy D. HUMMER, Plaintiff-Respondent, v. Jerry L. EVANS, in his capacity as Superintendent of the Idaho Department of Education, Defendant-Appellant\", \"name_abbreviation\": \"Hummer v. Evans\", \"decision_date\": \"1996-08-29\", \"docket_number\": \"No. 21796\", \"first_page\": \"274\", \"last_page\": \"281\", \"citations\": \"129 Idaho 274\", \"volume\": \"129\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T20:35:52.806593+00:00\", \"provenance\": \"CAP\", \"judges\": \"MeDEVITT, C.J., and JOHNSON, TROUT and SILAK, JJ., concur.\", \"parties\": \"Joy D. HUMMER, Plaintiff-Respondent, v. Jerry L. EVANS, in his capacity as Superintendent of the Idaho Department of Education, Defendant-Appellant.\", \"head_matter\": \"923 P.2d 981\\nJoy D. HUMMER, Plaintiff-Respondent, v. Jerry L. EVANS, in his capacity as Superintendent of the Idaho Department of Education, Defendant-Appellant.\\nNo. 21796.\\nSupreme Court of Idaho, Boise, February, 1996 Term.\\nAug. 29, 1996.\\nRehearing Denied Oct. 10, 1996.\\nCosho, Humphrey, Greener & Welsh, Boise, for appellant Jerry Evans. Howard Humphrey argued.\\nAlan G. Lance, Attorney General; Kirby D. Nelson, Deputy Attorney General, Boise, for appellant Idaho Department of Education.\\nSkinner, Fawcett & Mauk, Boise, for respondent. William L. Mauk argued.\", \"word_count\": \"3551\", \"char_count\": \"21758\", \"text\": \"SCHROEDER, Justice.\\nThis is an appeal from a Decision and Order entered after a court trial. The case concerns the termination of Joy Hummer, an employee of the Idaho Department of Education. The termination was based on a letter written by the employee to a judge related to the sentencing of a felon. The district court held that the termination violated public policy and awarded damages against Jerry Evans, a former State Superintendent of Public Instruction. Evans appeals the ruling of the district court.\\nI.\\nBACKGROUND AND PRIOR PROCEEDINGS\\nJoy Hummer was hired by the Idaho Department of Education (\\\"Department\\\") on September 12, 1988, as a consultant on Acquired Immune Deficiency Syndrome (AIDS) education. The consultant had the general responsibility to research and disseminate AIDS information to local educators, to provide in-service education on AIDS education to teachers and administrators, to represent the Department on task forces and to provide technical assistance to local educators on AIDS education and prevention. A subsequent letter of appointment dated July 1, 1991, provided that the employment was \\\"for the period beginning July 1,1991, and ending June 29, 1992, at an annual salary of Thirty Nine Thousand Dollars and no cents ($39,-000.00).\\\"\\nDuring her employment with the Department, Hummer experienced some public relations difficulties. She conducted an in-service training for the Mountain Home School District in early 1990 on the legal aspects of HIV-AIDS education. After a non-mandatory workshop some participants remained to discuss issues with Hummer. In the aftermath of a joking reference to approaches being taken by school districts elsewhere in the nation she showed them a list of condom slogans developed by school children. One teacher copied the list, and subsequently another teacher from Mountain Home asked Hummer to mail a copy of the slogans. The teacher from Mountain Home was outraged by the list and wrote Idaho legislators, some of whom were also distressed. Hummer wrote a letter of apology to the legislature. She also tendered her resignation which was not accepted. However, she lost one week's pay and was placed on probation for several months.\\nSubsequent to the slogan list problem, Hummer drafted a training notebook to be used by school districts for sex education. Evans was contacted by legislators who objected to some of the lessons in the notebook. Evans then directed the superintendents to return the notebooks to Hummer and made them available upon request only. No disciplinary action was taken against Hummer for the mailing of the training notebooks.\\nIn a June, 1991 evaluation, Hummer received a generally good evaluation. However, her supervisor noted the following:\\nJoy needs to continue to explore ways to meet the objectives of the project without creating a vocal uproar. The tenuous circumstances surrounding the project are not a result of Joy trying to meet the needs of the schools but the powerful influence of some, who are opposed to any sexual related programs in our schools.\\nDuring an AIDS education session for the Idaho Department of Probation and Parole, Hummer met an inmate, Kerry Stephen Thomas, who had tested positive for the HIV virus. Thomas was a Boise State University basketball player who had been convicted of statutory rape for his involvement with a young patient at a psychiatric facility where he worked. He had consensual sexual relations with several women after he knew he had tested positive for the HIV virus, but the criminal charges relating to those activities were dismissed as part of a plea bargain with the State. Hummer found Thomas's ignorance about his HIV status and his lack of anyone to talk to about his disease to be appalling. She found him personable and intelligent and hoped to persuade him to be a speaker on AIDS prevention.\\nThe attorney for Thomas was seeking to get his sentence reduced. On two occasions the attorney subpoenaed Hummer to provide testimony at hearings on the motion to re duce the sentence. The court hearings were vacated and reset. Hummer had told her supervisor, Mr. Pelton, that she had been subpoenaed; however, there had been no discussions about what her testimony would be. The sentencing hearing was ultimately set for a date when Hummer was scheduled to be out of town for a training conference. She told the attorney for Thomas of her problem, and it was decided that she could simply write a letter to the sentencing judge with the information which she would provide if she testified at the hearing.\\nWhile Hummer was drafting the letter, a co-worker suggested that Hummer contact the Department's legal counsel before submitting the letter since she was writing the letter on Department letterhead. At trial Hummer testified that the information officer for the Department had warned her after one of the previous conflicts that whatever she did, she did as a representative of the Department.\\nWithout contacting the Department's legal counsel or her supervisor, Hummer sent the following letter to the sentencing judge on Department letterhead:\\nTO WHOM IT MAY CONCERN:\\nStephen Thomas and I became acquainted when I presented an HIV/AIDS workshop to the probation parole program. After he had shared his HIV status and story, I continued to remain in contact by sending information about the virus and progress in medical research and improved prevention education.\\nAs we visited, Stephen asked me what my interest was in him personally? It had occurred to me that a black, basketball star who had been a hero to many youngsters and received the virus through heterosexual transmission would be a great asset in giving prevention messages to children.\\nNot realizing how prophetic that statement was, I began to \\\"court\\\" Stephen to see if he might be willing to visit with groups about his story. He is an articulate, intelligent man who could be a great asset to Idaho's prevention programs. Although he is a convicted felon, I believe his story needs to be told because if it can happen to the All-American black kid, it can happen to anyone.\\nIdaho has its very own Magic Johnson whose HIV story is worth hearing. If/When he is available, I would not hesitate to arrange contact with youth should he agree. Many school districts have requested HIV infected speakers and their presentations have been found to be effective on a short-term basis.\\nRespectfully,\\ns/\\nJoy Hummer\\nHIV/AIDS Education Consultant\\nThe sentencing judge referred to Hummer's letter in his decision to modify the sentence previously imposed on Thomas.\\nThe Department's policy on the handling of subpoenas was set forth in its Handbook for Employees under the provisions related to leaves. Employees who were subpoenaed in their official capacities were not required to take leave, but employees who were subpoenaed in a non-official capacity had to take accrued leave. There was no policy requiring an employee to notify anyone of a subpoena or the contents of testimony which might be given.\\nThe prosecutor handling the Thomas case was incensed when he determined that another state agency was supporting the sentence reduction. Evans was also angered that the letter appeared to represent a departmental view rather than a private view. Evans received numerous complaints about the impression the letter gave that the Department was using a convicted rapist as a role model.\\nOn February 27,1992, Evans wrote Hummer a letter of termination, effective February 28, 1992, attributing the letter to the sentencing judge as the basis for the termination. Evans wrote, \\\"While you certainly have every right to make such statements in your individual, private, capacity, the letter was written on State Department of Education letterhead and signed by yourself in your capacity as HIV/AIDS Education Consultant.\\\" Evans admonished Hummer's refusal to contact legal counsel prior to writing the letter and her refusal to share the letter with her supervisor. He indicated that Hummer's poor judgment jeopardized the AIDS program.\\nHummer appealed the \\\"recommendation\\\" of Evans to the Idaho Board of Education. However, the Board stated that \\\"the Board has no jurisdiction over the Department of Education terminations,\\\" concluding that Hummer was an employee of the Superintendent of Public Instruction.\\nHummer filed a Complaint in the district court against Evans, the Idaho Department of Education and the Idaho State Board of Education alleging: (1) termination in violation of public policy, (2) breach of an implied contract, (3) breach of the implied covenant of good faith and fair dealing, and (4) intentional interference with a contract. The case was tried before the district court without a jury. The district court issued its initial decision on February 8,1994, concluding that Hummer's termination was a violation of public policy:\\nThere is an overriding public policy interest in obtaining candid information for use in sentencing decisions. Regardless of the content of the testimony, courts need the input of a variety of people in determining the penalty to be imposed upon a person who has committed a crime. Idaho law requires sentencing judges to consider a variety of factors: the need to protect the public, the need to deter the defendant or those similarly minded, rehabilitation and punishment. The dominant goal \\u2014 to protect the public interest and safety \\u2014 can only be served when judges have the benefit of information from a variety of sources. The need for information is strong regardless of whether the information favors or disfavors the defendant. To allow employers to terminate the employment of someone who is providing information to a sentencing court is directly against the public policy of the state of Idaho.\\nSince Hummer had been subpoenaed, the court concluded that \\\"[i]t is unfair to allow an employee to be sandbagged by punishing them for doing what the law compels.\\\" The district court focused on the fact that there was not a written policy addressing employees' responses to subpoenas and found that \\\"it is clear that the reason for her termination in the Spring of 1992 was the letter she wrote in support of the Thomas sentence reduction.\\\" The court concluded that the Department could have required a disclaimer that emphasized that the employee was providing only a personal view, but the Department had not provided such a requirement.\\nIn determining the appropriate amount of damages the district court posed the following question: \\\"[H]ow long is it reasonable to assume that Joy Hummer would have remained with the Department of Education?\\\" The Department indicated that Hummer would not have had her letter of appointment renewed. Hummer also expressed doubt that her employment with the Department would have continued until retirement. The court recognized the philosophical differences between the Department and Hummer and acknowledged the strong likelihood that her contract would not have been renewed, stating the following:\\nThe leadership abilities, strength, commitment and enthusiasm which made her a good teacher led her into a series of blunders which endangered the entire Aids program and which would, more probably than not, have resulted in the nonrenewal of her appointment.\\nThe district court entered judgment in favor of Hummer and against Evans, in his official capacity. The court awarded Hummer $10,349.71, together with prejudgment interest, which is the amount she would have received in wages through the end of June, 1992. On March 14, 1994, Hummer filed a Motion to Alter or Amend Judgment, requesting the court to apply tort principles for the damage calculations and increase the award of damages to an amount of $85,480.\\nIn its Order dated December 19, 1994, the court found that Hummer's difficulty in obtaining other employment was \\\"directly attributable to her abrupt discharge.\\\" The court relied on O'Dell v. Basabe, 119 Idaho 796, 810 P.2d 1082 (1991), in determining the amount of future lost wages to be awarded. In O'Dell the Court determined that the relevant factors include \\\"the plaintiffs salary history, scheduled or mandated pay raises, and a finding based on the evidence in the record of the time which it will take the plaintiff to find comparable employment with a commensurate salary, at which time the award of front pay should be discounted.\\\" 119 Idaho at 812, 810 P.2d at 1098.\\nBased on her unsuccessful attempts to obtain new employment and the court's conclusion that \\\"it is more probable than not that, absent the abrupt discharge, she would have found a job with at least the same benefits and salary,\\\" the court concluded that an additional year's salary was a reasonable amount of additional damages. Consequently, the court awarded an additional $46,551.38 plus costs of $1,070.10, bringing the aggregate sum to $60,100.47.\\nII.\\nSTANDARD OF REVIEW\\nThe credibility and weight to be given evidence is in the province of the trier of fact, and the findings made by the trial judge will not be set aside unless clearly erroneous. Sun Valley Shamrock Resources, Inc. v. Travelers Leasing Corp., 118 Idaho 116, 118, 794 P.2d 1389, 1391 (1990); I.R.C.P. 52(a). This Court will uphold the trial court's findings of fact if supported by substantial and competent evidence. Ireland v. Ireland, 123 Idaho 955, 957-58, 855 P.2d 40, 42-43 (1993); In re Baby Boy Doe, 127 Idaho 452, 456, 902 P.2d 477, 481 (1995). On issues of law, this Court exercises free review. Ausman v. State, 124 Idaho 839, 841, 864 P.2d 1126, 1128 (1993).\\nIII.\\nTHE DISTRICT COURT'S DETERMINATION THAT THE TERMINATION OF HUMMER BY THE DEPARTMENT WAS A VIOLATION OF PUBLIC POLICY IS SUPPORTED BY SUBSTANTIAL COMPETENT EVIDENCE.\\nThe district court determined that Hummer was an employee \\\"terminable at will.\\\" A court's determination of an employee's employment status is a factual finding. See Jones v. EG & G Idaho, Inc., 111 Idaho 591, 594, 726 P.2d 703, 706 (1986). The parties agree that under Idaho statutory provisions and the Department Handbook she was an employee at will despite the term specified in the letter of appointment.\\nThe employer of an employee at will may terminate the relationship at any time for any reason without incurring liability, unless the motivation for the termination contravenes public policy. Ray v. Nampa School Dist. No. 131, 120 Idaho 117, 120, 814 P.2d 17, 20 (1991); Jones, 111 Idaho at 593, 726 P.2d at 705; MacNeil v. Minidoka Memorial Hosp., 108 Idaho 588, 589, 701 P.2d 208, 209 (1985).\\nThis Court established the public policy exception to the employment at will doctrine in Idaho in Jackson v. Minidoka Irrigation Dist., 98 Idaho 330, 563 P.2d 54 (1977):\\nThe employment at will rule is not, however, an absolute bar to a claim of wrongful discharge. As a general exception to the rule allowing either the employer or the employee to terminate the employment relationship without cause, an employee may claim damages for wrongful discharge when the motivation for the firing contravenes public policy.\\n98 Idaho at 333, 563 P.2d at 57. The Jackson court set forth examples of the public policy exception from other jurisdictions: Petermann v. International Bhd. of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959) (employee discharged for refusing to commit perjury); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973) (employee fired for filing worker's compensation claim); Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975) (employee was fired for serving on jury duty against the wishes of her employer); Jackson, 98 Idaho at 333-34, 563 P.2d at 57-58.\\nIn Watson v. Idaho Falls Consol. Hosps. Inc., 111 Idaho 44, 720 P.2d 632 (1986), this Court upheld a jury instruction which instructed that a termination based on legal union activities would be contrary to public policy established by the Legislature. In Ray v. Nampa School Dist. No. 131, this Court found that terminating an employee for reporting safety code violations to the state electrical engineer is contrary to the public policy established by the legislature. 120 Idaho 117, 814 P.2d 17.\\nA termination of an employee based on the employee's compliance with a court-issued subpoena is contrary to the public policy of this state, as established by the legislature and this Court. Failure to comply with a subpoena may be punished by contempt. I.C. \\u00a7 19-3010; I.R.C.P. 45(f). The district court was correct to point out that there exists an overriding public policy interest in obtaining candid, truthful information for use in court proceedings. Regardless of the content of the testimony, courts need the input from a variety of sources when making vital decisions, such as determining the penalty to be imposed on a person convicted of committing a crime. Persons must appear as witnesses when subpoenaed and must testify truthfully, subject to penalties for contempt and prosecution for perjury-\\nHummer provided the letter at issue to the sentencing judge in lieu of appearing in court, as commanded by the subpoena. Such evidence is protected to the same extent as live testimony. The termination of Hummer for responding to the court-issued subpoena was a violation of the public policy of the state of Idaho and is a basis for a claim of wrongful termination. Jackson, 98 Idaho at 333, 563 P.2d at 57.\\nIV.\\nHUMMER IS ENTITLED TO CONTRACT DAMAGES FOR THE WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY.\\nIn Jackson, 98 Idaho at 334, 563 P.2d at 58, this Court indicated that employment at will constitutes a contract. The Jackson Court relied upon Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974), in which the New Hampshire court recognized the cause of action for discharge in violation of public policy as a breach of the employment contract. Inherent in the Monge court's decision is the conclusion that all employees are subject to employment contracts, \\\"whether at will or for a definite term.\\\" 316 A.2d at 551. In Jackson this Court also referred to a \\\"contract of employment at will,\\\" which exemplifies this Court's intent to classify a cause of action for wrongful termination in violation of public policy as a breach of contract rather than a tort. 98 Idaho at 334, 563 P.2d at 58.\\nAll employment contracts terminable at will are subject to the covenant of good faith and fair dealing. Metcalf v. Intermountain Gas Co., 116 Idaho 622, 778 P.2d 744 (1989). \\\"A breach of the covenant is a breach of the employment contract, and is not a tort. The potential recovery results in contract damages, not tort damages.\\\" Id. at 626, 778 P.2d at 748. Similarly, a cause of action for wrongful termination of a contract of employment at will based on a violation of public policy is a contract cause of action which results in contract damages.\\n\\\"Front pay,\\\" as future lost wages, is not too speculative as a matter of law to be awarded as an element of damages. O'Dell v. Basabe, 119 Idaho at 812, 810 P.2d at 1098. \\\"The fact that contract damages are not capable of exact proof does not preclude their availability as a matter of law. The rule is that the measure of damages is such as will compensate for the loss suffered as the result of a breach of contract.\\\" Id. Damages relating to lost future benefits must be proven with \\\"reasonable certainty\\\":\\nWhere a claim is asserted for the recovery of future benefits, the burden of proof is upon the plaintiff to prove with reasonable certainty the amount of the loss caused by the conduct of the defendant. In the context of an employment contract for an indefinite term, a plaintiff might resort to evidence such as employment history to show likelihood of future employment.\\nId.\\nHummer is entitled to contract damages based on the Department's wrongful termination of her in violation of public policy. She is entitled to the initial award of $10,349.71, which is the amount of salary and benefits she would have received through the ending date set forth in her letter of employment \\u2014 June 29, 1992. A deprivation of that amount of salary and benefits has been shown with \\\"reasonable certainty.\\\" O'Dell, 119 Idaho at 812, 810 P.2d at 1098.\\nHummer has not proven with \\\"reasonable certainty\\\" that her employment with the Department would continue beyond the ending date set forth in the letter of appointment. The record adequately shows and the district court recognized that Hummer \\\"would not have had her contract renewed\\\" based on various public relations difficulties. Hence, Hummer has not shown a \\\"likelihood of future employment\\\" with the Department. Id. The fact that she had not found commensurate employment as of the date of the hearing on the additur does not establish a basis for the additur. Consequently, the district court's award of additional damages of $46,551.38 is reversed.\\nV.\\nCONCLUSION\\nThe district court's conclusion that Hummer's termination was a violation of public policy is affirmed. She is entitled to the initial award of damages and costs. The district court's grant of additur damages is reversed. Each party has prevailed in part on appeal. No costs or attorney fees are awarded.\\nMeDEVITT, C.J., and JOHNSON, TROUT and SILAK, JJ., concur.\"}"

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+"{\"id\": \"3677492\", \"name\": \"IDAHO SCHOOLS FOR EQUAL EDUCATIONAL OPPORTUNITY; Moscow School District #281; Lapwai School District 341; Mullan School District # 392; Potlatch School District # 285; Kendrick Joint School District # 283; Cascade School District #422; St. Maries Joint School District # 41; Orofino Joint School District # 171; Culdesac Joint School District # 342; Genesee Joint School District #282; Highland-Craigmont Joint School District #305; Rockland School District # 382; Horseshoe Bend School District #73; Richfield School District #316; Boundary County District # 101; Kamiah Joint District # 204; Nez Perce District # 302; Cottonwood District # 242; Midvale School District # 433; Post Falls School District # 272; And Bonner County School District # 82, Plaintiffs-Counter-defendants-Respondents, and Brian Silflow and Ganel Silflow, by and through their parents, Dale and Patti Silflow, husband and wife; Donald Paul Crea by and through his father, Gary Crea; Andy Cook, by and through his father, Larry Prally; Tavia Gilbert, by and through her parents; Terry and Carolyn Gilbert; Gregory Lamm, by and through his mother, Kathy Lamm; Sara Kae Gomez, by and through her parents, Kathleen and Jose Gomez; Dietrich Stella and Jennifer Stella, by and through their parents, Charles and Rebecca Stella; Gregory Daniels, by and through his mother, Nancy Daniels; Gina M. Decker, by and through her parents, Gene and Linda Decker; Jennifer A. Alder, by and through her parents, Max and Judy Alder; Angela F. Gerrard, by and through her parents, Roger and Rhoda Gerrard; Catherine A. Sporleder, by and through her mother; Joanne Sporleder; Morgan Rounds and Seth Rounds, by and through their parents, Ivan Rounds and Brenda Rounds; Kelli Longeteig, by and through her parents, Willfred Longeteig and Beverly Longeteig; Don Hoffer, by and through his mother, Kit Hoffer; Sarah Malloy, by and through her mother, Susie Malloy; Kory Turnbow, by and through his mother, Donagene Turnbow; Shawna Olsen, Shannon Olsen and Ryan Olsen, by and through their mother, Teresa Olsen; Krista Anne Goetz, by and through her father, Allan J. Goetz; Chad Knee, by and through his parents, kelly and karen knee; on behalf of themselves and all other school people of the State of Idaho similarly situated, Plaintiffs-Respondents, v. The STATE of Idaho, Defendant-Counterclaimant-Appellant\", \"name_abbreviation\": \"Idaho Schools for Equal Educational Opportunity v. State\", \"decision_date\": \"2005-12-21\", \"docket_number\": \"No. 29616\", \"first_page\": \"450\", \"last_page\": \"464\", \"citations\": \"142 Idaho 450\", \"volume\": \"142\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T22:20:51.721057+00:00\", \"provenance\": \"CAP\", \"judges\": \"Justice BURDICK and Justices Pro Tern KIDWELL and HURLBUTT concur.\", \"parties\": \"IDAHO SCHOOLS FOR EQUAL EDUCATIONAL OPPORTUNITY; Moscow School District #281; Lapwai School District 341; Mullan School District # 392; Potlatch School District # 285; Kendrick Joint School District # 283; Cascade School District #422; St. Maries Joint School District # 41; Orofino Joint School District # 171; Culdesac Joint School District # 342; Genesee Joint School District #282; Highland-Craigmont Joint School District #305; Rockland School District # 382; Horseshoe Bend School District #73; Richfield School District #316; Boundary County District # 101; Kamiah Joint District # 204; Nez Perce District # 302; Cottonwood District # 242; Midvale School District # 433; Post Falls School District # 272; And Bonner County School District # 82, Plaintiffs-Counter-defendants-Respondents, and Brian Silflow and Ganel Silflow, by and through their parents, Dale and Patti Silflow, husband and wife; Donald Paul Crea by and through his father, Gary Crea; Andy Cook, by and through his father, Larry Prally; Tavia Gilbert, by and through her parents; Terry and Carolyn Gilbert; Gregory Lamm, by and through his mother, Kathy Lamm; Sara Kae Gomez, by and through her parents, Kathleen and Jose Gomez; Dietrich Stella and Jennifer Stella, by and through their parents, Charles and Rebecca Stella; Gregory Daniels, by and through his mother, Nancy Daniels; Gina M. Decker, by and through her parents, Gene and Linda Decker; Jennifer A. Alder, by and through her parents, Max and Judy Alder; Angela F. Gerrard, by and through her parents, Roger and Rhoda Gerrard; Catherine A. Sporleder, by and through her mother; Joanne Sporleder; Morgan Rounds and Seth Rounds, by and through their parents, Ivan Rounds and Brenda Rounds; Kelli Longeteig, by and through her parents, Willfred Longeteig and Beverly Longeteig; Don Hoffer, by and through his mother, Kit Hoffer; Sarah Malloy, by and through her mother, Susie Malloy; Kory Turnbow, by and through his mother, Donagene Turnbow; Shawna Olsen, Shannon Olsen and Ryan Olsen, by and through their mother, Teresa Olsen; Krista Anne Goetz, by and through her father, Allan J. Goetz; Chad Knee, by and through his parents, kelly and karen knee; on behalf of themselves and all other school people of the State of Idaho similarly situated, Plaintiffs-Respondents, v. The STATE of Idaho, Defendant-Counterclaimant-Appellant.\", \"head_matter\": \"129 P.3d 1199\\nIDAHO SCHOOLS FOR EQUAL EDUCATIONAL OPPORTUNITY; Moscow School District #281; Lapwai School District 341; Mullan School District # 392; Potlatch School District # 285; Kendrick Joint School District # 283; Cascade School District #422; St. Maries Joint School District # 41; Orofino Joint School District # 171; Culdesac Joint School District # 342; Genesee Joint School District #282; Highland-Craigmont Joint School District #305; Rockland School District # 382; Horseshoe Bend School District #73; Richfield School District #316; Boundary County District # 101; Kamiah Joint District # 204; Nez Perce District # 302; Cottonwood District # 242; Midvale School District # 433; Post Falls School District # 272; And Bonner County School District # 82, Plaintiffs-Counter-defendants-Respondents, and Brian Silflow and Ganel Silflow, by and through their parents, Dale and Patti Silflow, husband and wife; Donald Paul Crea by and through his father, Gary Crea; Andy Cook, by and through his father, Larry Prally; Tavia Gilbert, by and through her parents; Terry and Carolyn Gilbert; Gregory Lamm, by and through his mother, Kathy Lamm; Sara Kae Gomez, by and through her parents, Kathleen and Jose Gomez; Dietrich Stella and Jennifer Stella, by and through their parents, Charles and Rebecca Stella; Gregory Daniels, by and through his mother, Nancy Daniels; Gina M. Decker, by and through her parents, Gene and Linda Decker; Jennifer A. Alder, by and through her parents, Max and Judy Alder; Angela F. Gerrard, by and through her parents, Roger and Rhoda Gerrard; Catherine A. Sporleder, by and through her mother; Joanne Sporleder; Morgan Rounds and Seth Rounds, by and through their parents, Ivan Rounds and Brenda Rounds; Kelli Longeteig, by and through her parents, Willfred Longeteig and Beverly Longeteig; Don Hoffer, by and through his mother, Kit Hoffer; Sarah Malloy, by and through her mother, Susie Malloy; Kory Turnbow, by and through his mother, Donagene Turnbow; Shawna Olsen, Shannon Olsen and Ryan Olsen, by and through their mother, Teresa Olsen; Krista Anne Goetz, by and through her father, Allan J. Goetz; Chad Knee, by and through his parents, kelly and karen knee; on behalf of themselves and all other school people of the State of Idaho similarly situated, Plaintiffs-Respondents, v. The STATE of Idaho, Defendant-Counterclaimant-Appellant.\\nNo. 29616.\\nSupreme Court of Idaho, Boise,\\nSeptember 2005 Term.\\nDec. 21, 2005.\\nSee also, 140 Idaho 586, 97 P.3d 453.\\nHon. Lawrence G. Wasden, Attorney General, Boise, for appellant. James D. Carlson argued.\\nHuntley Park, LLP, Boise, for respondents. Robert C. Huntley Jr. argued.\", \"word_count\": \"8463\", \"char_count\": \"52840\", \"text\": \"TROUT, Justice.\\nThis is an appeal of a district court decision granting declaratory judgment against the State of Idaho in an action challenging the adequacy and method of funding public education in Idaho. After conducting a trial in 2000, the district court issued Findings of Fact and Conclusions of Law in early 2001 in which it determined the State has failed in its constitutional duty to provide a thorough education for Idaho's public school students in a safe environment conducive to learning, especially as it pertains to the poorest of school districts. The State appeals the judgment, as well as further district court orders addressing remedial measures.\\nI.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nThis is the fifth time this case has been brought on appeal to this Court since the filing of the initial complaint in June 1990. The Respondents are the Idaho Schools for Equal Educational Opportunity, an unincorporated association of school district superintendents of several Idaho public school districts, various school districts and several parents of school children attending public schools in Idaho (collectively referred to as ISEEO), and the Appellant is the State of Idaho (State). In the district court, ISEEO sought a declaratory judgment that \\\"the present level and method of funding for Idaho's public schools [is] unconstitutional.\\\" The suit is based upon Article IX, \\u00a7 1 of the Idaho Constitution, which reads as follows:\\nThe stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the Legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, fine common schools.\\nIn the first appeal, this Court determined ISEEO had standing to sue and clarified that it is the judicial branch's constitutional duty to define the meaning of the Idaho Constitution and what constitutes a \\\"thorough system of public, free schools.\\\" See Idaho Schs. For Equal Educ. Opportunity v. Evans, 123 Idaho 573, 583, 850 P.2d 724, 734 (1993) (ISEEO I). After ISEEO I, the Legislature made several changes to Idaho's public school system, such as increasing public school appropriations and directing the State Board of Education (SBE) to develop new rules. In the second appeal, this Court determined the legislative changes did not make the lawsuit moot. See Idaho Schs. For Equal Educ. Opportunity ex. rel. Eikum v. State Bd. of Educ. ex. rel. Mossman, 128 Idaho 276, 912 P.2d 644 (1996) (ISEEO II). The case was remanded for the district court to address the issue of whether the funding system met the Legislature's obligation under the Idaho Constitution to provide a \\\"thorough system\\\" of public education. Id. The case came back to this Court and in ISEEO III, this Court concluded the new rules drafted by SBE relating specifically to facilities met the constitutional requirement of thoroughness. See Idaho Schs. For Equal Educ. Opportunity v. State, 132 Idaho 559, 976 P.2d 913 (1998) (ISEEO III). We noted, \\\"a safe environment conducive to learning is inherently part of a thorough system of public, free common schools....\\\" ISEEO III, 132 Idaho at 566, 976 P.2d at 920. On remand, the district court was directed to determine the narrow issue of whether the Legislature had provided a means to fund facilities that provide a safe environment conducive to learning, pur suant to the thoroughness requirement of Article IX, \\u00a7 1.\\nThe district court held a court trial in 2000, and in 2001 entered its Findings of Fact and Conclusions of Law (2001 Findings). The district court concluded the system of school funding established by the Legislature was insufficient to meet the constitutional requirement because reliance on loans alone to pay for major repairs or the replacement of unsafe school buildings was inadequate for the poorer school districts. The district court deferred any remedial action to allow the Legislature time to address the court's findings. However, in late 2002 when the Legislature, in the district court's opinion, had failed to take appropriate action, the district court began implementing its remedial measures, including a phase of information gathering and the appointment of a Special Master.\\nIn 2003, the Legislature passed HB 403, which imposed various restrictions on lawsuits related to school funding. In ISEEO IV, this Court affirmed the district court's determination that HB 403 was unconstitutional. See Idaho Schs. For Equal Educ. Opportunity v. State, 140 Idaho 586, 97 P.3d 453 (2004) (ISEEO IV). All other issues having been resolved, this appeal finally addresses the district court's 2001 Findings and the court's final determination that the current state \\\"system based upon loans alone is not adequate to meet the constitutional mandate to establish and maintain a general, uniform, and thorough system of public, free common schools in a 'safe environment conducive to learning' for Idaho's poorest school districts.\\\" We agree with this conclusion.\\nII.\\nANALYSIS\\nWe note at the outset that in complex litigation such as this, it is to be expected myriad issues will be raised on appeal. Several of the issues raised will not be analyzed here, however, as they concern the remedial phase of the litigation and are raised in another appeal pending before this Court. Thus, the State's arguments relating to the appointment of a Special Master, the payment of the Special Master, and whether the Special Master may appoint as assistants individuals who had previously been involved as witnesses for ISEEO will not be considered until those issues are properly before this Court in the suspended appeal of Fourth District Court v. Bail.\\nA. ISEEO and its representative capacity\\nThe first question we will consider is broadly stated as whether ISEEO may litigate and obtain a judgment on behalf of school districts that are not a party to this lawsuit. This Court has repeatedly held ISEEO has standing to seek a declaration that the Legislature has failed to carry out its constitutional responsibility to provide a thorough system of public education. See ISEEO I; ISEEO IV. Organizational standing clearly confers on ISEEO the ability to represent its members, but because the declaration ISEEO seeks applies to all school districts throughout the state, ISEEO cannot be limited to presenting evidence concerning only the named districts. The underlying issue in this case is whether the Legislature has provided the proper level and method of funding school facilities to create a safe environment conducive to learning, not whether particular districts need additional funds for facility improvements. Accordingly, ISEEO must be allowed to present statewide evidence of facility problems, including safety concerns of districts which have settled or were never parties to this lawsuit. Similarly, it is appropriate for the district court's judgment to be entered on behalf of those ISEEO members who presented no evidence at trial. ISEEO is not constrained to provide evidence relating only to party districts, nor must ISEEO provide evidence concerning every party district. Again, the focus of this litigation is on the adequacy of the Legislature's mechanism for funding public school districts; a judgment that such a funding mechanism is unconstitutional will necessarily affect all school districts throughout the state, regardless of whether those districts presented evidence at trial, previously settled, or were never even parties to this lawsuit. ISEEO, though not technically representing certain school districts, is entitled to show statewide safety problems caused by the Legislature's current methods and levels of funding.\\nB. Thoroughness\\nNext, we briefly turn to the issues of whether the definition of \\\"thorough\\\" as used in our constitution is a question of law or fact, and whether state standards relating to educational coursework and programs were sufficient to provide for a thorough education. In its 2001 Findings, the district court responded to the State's allegations that the school districts were misusing their funds for superfluous programs instead of addressing building safety issues by concluding it was necessary to go beyond the current state educational standards in order for the districts to provide a thorough education. The State charges the district court erroneously converted the issue of defining what is thorough into a question of fact in determining the state standards were insufficient. As this Court stated in ISEEO I, it is our constitutional duty to define the meaning of the thoroughness requirement of Art. 9 \\u00a7 1, and so the definition of thorough is clearly a question of law. See ISEEO I, 123 Idaho at 583, 850 P.2d at 734. We again emphasize the current issues before the Court today relate solely to whether the Legislature has failed to provide an adequate means of funding school facilities. To the extent the district court addressed the adequacy of state standards relating to course work and programming, such a discussion is irrelevant to the issues presented on this appeal. Thus, we decline to analyze thoroughness as it relates to course work and programming.\\nC. Adequacy of evidence\\nThe next issue raised by the State relates to the adequacy of the facts the district court relied on in its 2001 Findings. The standard for the adequacy of factual findings, over which appellate courts exercise free review, is whether they are explicit enough to give appellate courts a clear understanding of the basis of the distinct court's decision. In re Leavitt, 171 F.3d 1219, 1223 (9th Cir.1999). The district court's 2001 Findings addressed, among other things, the many safety concerns of specific school districts, such as structural problems and fire hazards. The district court also made several generalized factual findings, such as \\\"Idaho's schools, particularly those in rural areas, are stretched to the breaking point in meeting the educational needs of their charges.\\\" The State takes issue with these more generalized findings, arguing the district court's mandate from this Court in ISEEO III required specific facts to determine if particular facilities in specific school districts provided a safe environment conducive to learning. In making this argument, the State attempts to refocus this litigation into small, district-by-district battles instead of addressing the larger, overall issue of the Legislature's constitutional duty towards public education in Idaho. The State has mischaracterized this Court's order on remand, which was to determine whether the Legislature has provided a means to fund facilities that provide a safe environment conducive to learning, not whether each Plaintiff school district's facilities were adequate to provide a safe environment. In short, the State fails to grasp the relevance of the adage \\\"the whole is greater than the sum of its parts.\\\" Since the issue is systemic in nature and the admitted evidence so voluminous, the district court did not commit any error in making some generalized findings about facility problems, after pointing out some specific and illustrative examples.\\nThe State also alleges several of the 2001 Findings were not supported in the record by substantial and competent evidence. A district court's findings of fact will not be set aside unless they are clearly erroneous. Wood v. City of Lewiston, 138 Idaho 218, 61 P.3d 575 (2002). If the findings are supported by substantial and competent, though conflicting, evidence, they will not be disturbed by this Court. Id. The district court need not resolve every factual dispute between the parties; rather, the district court need only address those factual issues material to the resolution of the claims. See Quiring v. Quiring, 130 Idaho 560, 944 P.2d 695 (1997).\\nWhile the State quibbles with some of the evidence used to support the 2001 Find ings, the State has failed to show how the disputed findings were material to the overall conclusion the Legislature has failed in its constitutional duty to provide a thorough public education system. The record in this ease involves a transcript of more than 3,500 pages, thousands of pages of pre-filed testimony and thousands of pages of exhibits. The record also includes uncontradicted testimony from numerous school administrators and superintendents outlining facility problems and the barriers to correcting them. The State's pedantic focus on such details as whether it would cost $7 million to build a new school as opposed to the district court's finding of $10 million distracts from the overwhelming evidence in the record documenting serious facility and funding problems in the state's public education system. Among such evidence is the State of Idaho's own 1993 Statewide School Facilities Needs Assessment, which documented facility deficiencies and concluded 57% of all Idaho school buildings had \\\"serious\\\" safety concerns. A 1999 update to that report noted 53 of the buildings needing serious and immediate attention in 1993 had deteriorated even further.\\nIn addition, the district court found that a 1999 inspection of the Wendell middle school, built in 1915, revealed crumbling concrete, which led to the condemnation of the school. The abandonment of the school resulted in \\\"double shifting\\\" with the high school, meaning middle school students attended the high school part of the week while the high school students attended the rest of the week and on Saturdays. Another example illustrating both the safety concerns and the difficulties of funding remedies is the American Falls High School. In 1997, a seismic analysis concluded the high school would likely collapse should a \\\"probable seismic event\\\" occur. Repairs were made in 2000 to lessen the danger, but the American Falls School District decided it needed a new high school. It took three unsuccessful attempts before the district was finally able to gain voter approval of a bond to construct a new high school with a scheduled completion date of 2002. In its 2001 Findings, the district court somberly observed, \\\"It will be five years from the time that the danger was discovered until a new structure is built. It took three years to take measures to lessen the danger to the students.\\\" Similarly, it took over five years from the date of an initial safety inspection report that the Troy Junior Senior High School was unsafe for occupancy to complete a more intensive review, which also recommended the building no longer be used. A superintendent testified that the surrounding community had supported the district to the best of its ability but could not afford any more levies. As of 2001, the building was still in use.\\nThe district court explored the funding problems in great detail, and concluded the \\\"glaring gap\\\" in the funding system was the \\\"lack of any mechanism to deal quickly with major, costly, potentially catastrophic conditions by districts which are low in population, have a low tax base and are in economically depressed areas.\\\" The district court proceeded to identify the difficulty of passing bonds in various school districts, including St. Maries, in which a \\\"much pared down bond request\\\" finally passed in 1987, after repeated bond levies from 1980-1986 failed to garner the required supermajority vote. The district court noted another scenario illustrating the difficulties associated with the supermajority vote requirements in bond elections:\\nIn Jerome School District #261, there have been major problems in using bonds. In 1996, a $12.6 million bond lost with a 64.5% vote in favor. In 1997, a $13.9 million bond levy lost with a 66.3% vote in favor. In 1998, a $13.9 million bond lost with a 62.5% \\\"yes\\\" vote____A small supplemental levy passed. The district lost a $10.9 million dollar bond vote for a new middle school with a 59% approval. They do need a new school to provide a thorough education.\\nOne superintendent testified the Cottonwood School District \\\"had to pass an override levy just to buy paper and books, pay the utility bills and keep the doors open.\\\"\\nThe list of safety concerns and difficulties in getting funds for repairs or replacements is distressingly long; the overwhelming evidence not only supports, but compels the district court's conclusion of law: the funding system in effect in 2001 was simply inadequate to meet the constitutional mandate to provide a thorough system of education in a safe environment. Thus, to the extent there are any inaccuracies in the 2001 Findings, they are very minor and not clearly erroneous in light of the extensive evidence in the record supporting the district court's conclusion.\\nD. Effect of subsequent events\\nThe next issue raised by the State concerns mootness. Generally, appellate review of an issue will be precluded where an issue is deemed moot. An issue is moot \\\"if it does not present a real and substantial controversy that is capable of being concluded through judicial decree of specific relief.\\\" State v. Rogers, 140 Idaho 223, 226, 91 P.3d 1127, 1130 (2004) (citing ISEEO II, 128 Idaho at 281-282, 912 P.2d at 649). Thus, an issue is moot \\\"if a favorable judicial decision would not result in any relief or the party lacks a legally cognizable interest in the outcome.\\\" Rogers, 140 Idaho at 227, 91 P.3d at 1131 (citations omitted).\\nIn its briefing, the State contends a number of events have taken place since 2000 that render many of the district court's findings moot and are significant enough to warrant reversal of the court's conclusion that the Legislature has failed to provide for a thorough public education system with respect to school facilities. For example, legislation passed in 2000 and amended in 2001 created interest grants for plant facilities levies to abate unsafe school facilities, several school districts have since passed plant facility levies or taken measures to address unsafe facility conditions, and other conditions have changed in the various school districts that presented evidence in 2000. These events, argues the State, make many of the district court's 2001 Findings clearly erroneous or no longer applicable. Interestingly, at oral argument, the State argued that any ruling by the district court was actually premature, rather than moot, because of the legislative changes and urged this Court to remand the case back to the district court for further action.\\nWe pause to note the significant strides the Legislature has made in providing additional funds to Idaho schools for building replacement and repair. The Legislature amended the School Safety and Health Revolving Loan Fund, created in 2000, to a Loan and Grant Fund in 2001. See I.C. 33-1017(7) \\u2014 (12). That fund provided $10 million to seven school districts enabling them to finance some facility repair or replacement. Indeed, several of those districts were addressed in the district court's 2001 Findings. The Legislature took another major step forward by enacting the Idaho Uniform Public School Building Safety Act, I.C. 39-8001 et seq., which allows for the creation of uniform safety standards and requirements for the inspection of the structural integrity of Idaho's existing school buildings. Also, the Legislature has increased the time to pay for a plant facilities levy from ten to twenty years, reducing the annual payments and possibly making such levies a more attractive option for voters. See I.C. 33-804A. The Legislature is to be commended for taking these steps towards providing a safe environment conducive to learning.\\nSuch legislation does not, however, make this case moot. We acknowledge several school districts have been able to remedy their safety issues, but such progress is not attributable solely to the newly enacted legislation. For example, Garden Valley received a three-fold increase in receipt of federal forest funds. In some cases, unsafe conditions were remedied because the districts were finally able to pass their own large levies, albeit with some state assistance. The Minidoka District, for instance, passed a $10 million plant facilities levy and received a $578,095 interest grant from the State. As for the Loan and Grant Fund, when the program that led to the $10 million disbursal expired, it was replaced by a bond interest subsidies program for which the 2004 appropriation was $2 million. Unfortunately, there is no indication in the record that there is any commitment to continued funding of the Loan and Grant Fund, or that the amount appropriated was sufficient to carry out the Legislature's constitutional responsibilities. Indeed, there is little to show that the pres ent system of funding is adequate to stop the further accumulation of dangerous or inadequate buildings.\\nBut even assuming this case could technically be deemed moot based on subsequent legislation and remedial measures taken by several school districts, it clearly falls within the public interest exception to the mootness doctrine. Under this exception, an otherwise moot issue may be heard if it is one of substantial public interest. Johnson v. Bonner County Sch. Dist. No. 82, 126 Idaho 490, 492, 887 P.2d 35, 37 (1994). Clearly, as this Court stated in ISEEO II, \\\"The 'thoroughness' of the system of public education affects the present and future quality of life of Idaho's citizens and its future leaders, its children.\\\" ISEEO II, 128 Idaho at 284, 912 P.2d at 652. Thus, this Court may address the issue of whether the State has met its constitutional mandate to provide a safe environment conducive to learning, as it is certainly a matter of great public importance.\\nE. Post-trial affidavits\\nAnother concern raised by the State is whether the district court erred in considering ISEEO's post-trial affidavits. The State, in its Proposed Findings of Fact, made reference to several school districts' financial data in exhibits to support its claim that many districts had substantial resources that could have been put toward facility repairs. In response, ISEEO moved to file twelve affidavits of witnesses who had earlier testified at trial. The State argues the admission of these affidavits was in error because it was denied the right to cross-examine these witnesses who filed affidavits after trial.\\nAn appellate court reviews a district court's decision admitting or excluding evidence under the abuse of discretion standard. Clark v. Klein, 137 Idaho 154, 156, 45 P.3d 810, 812- (2002) (citing Morris By and Through Morris v. Thomson, 130 Idaho 138, 144, 937 P.2d 1212, 1218 (1997)). This Court has adopted a three part test for determining whether the district court abused its discretion: (1) whether the court correctly perceived that the issue was one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether it reached its decision by an exercise of reason. Sun Valley Shopping Center Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991). In the case of an incorrect ruling regarding evidence, a new trial is merited only if the error affects a substantial right of one of the parties. Clark, 137 Idaho at 156, 45 P.3d at 812 (citing Morris, 130 Idaho at 144, 937 P.2d at 1218).\\nThe district court's decision regarding admissibility of evidence was a matter of discretion. Under these facts, it cannot be said the district court acted outside the boundaries of its discretion or failed to exercise reason in considering post-trial affidavits as rebuttal testimony. Both parties to this litigation agreed to pre-file much of their proposed direct evidence testimony. Therefore, much of the testimony in the record was not subject to cross-examination. Also, the State could have simply filed its own affidavits countering those brought forward by ISEEO, but the State failed to do so. There was no error in the district court considering these affidavits, since all came from witnesses who had already testified at the trial. The State had the opportunity to question these same witnesses about the school districts' financial data previous to or during trial, or the State could simply have filed its own post-trial affidavits.\\nF. Silver Valley testing\\nThe State next charges the district court erred in ordering the State to pay ISEEO's attorney for the Silver Valley lead testing expenses. The issue arose when the district court, after hearing testimony on the potentially dangerous levels of heavy metal contamination in the Silver Valley, ordered lead testing of the local schools. The district court was led to believe funds were available from the federal Environmental Protection Agency or various state agencies to cover the testing costs. ISEEO later notified the district court that such funds were not forthcoming, but ISEEO counsel would personally fund expert testing and seek reimbursement. After the testing was completed, the district court, without citing a statute or rule, ordered the State to reimburse ISEEO's attorney for the testing expenses. The order simply stated, \\\"[T]he plaintiffs are awarded their costs incurred to date on testing in relation to the Silver Valley Schools.\\\"\\nWe conclude the district court erred in awarding ISEEO costs incurred in the lead testing against the State. The district court provided no analysis or authority for its award of this specific cost against the State. The cost was awarded before any final or partial judgment was awarded in this matter, so ISEEO cannot receive reimbursement for this cost under Rule 54(d)(l)(A)(B) as a prevailing party. Also, this award is not supported under Rule 54(d)(1)(D) as a discretionary cost. The district court never made any findings, as required under the rule, justifying why this cost should be allowed. See Hayden Lake Fire Protection Dist. v. Alcorn, 141 Idaho 388, 111 P.3d 73 (2005) (district court must make finding for each discretionary cost granted or denied). ISEEO's counsel voluntarily undertook to fund the testing himself instead of simply informing the district court that there were no federal or state funds available to carry out the court's order and allowing the court to take further action. The court never made any specific findings regarding the Silver Valley, making this cost now appear like a discovery expense ISEEO incurred in this litigation. Because we find no statute or rale authorizing this award, we vacate the district court's award of expenditures for lead testing against the State.\\nG. Other issues raised on appeal\\nThe State also raises arguments addressing reports prepared by experts at the behest of various school districts and presented to the distinct court during the remedy phase of the proceedings below. Any issues relating to the second, or \\\"remedy,\\\" phase of the litigation are not part of this appeal. For the reasons that follow, we believe it more appropriate at this point for the case to remain before this Court. Thus, any remedy phase before the trial court is unnecessary and, likewise, we need not address, in this appeal, any issues which arose during that part of the litigation below.\\nIII.\\nCONCLUSION\\nIn sum, the evidence in the record clearly supports the district court's 2001 Findings. We affirm the conclusion of the district court that the current funding system is simply not sufficient to carry out the Legislature's duty under the constitution. While the Legislature has made laudable efforts to address the safety concerns of various school districts, the task is not yet complete. The appropriate remedy, however, must be fashioned by the Legislature and not this Court. Quite simply, Article IX of our constitution means what it says: \\\"[I]t shall be the duty of the Legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.\\\" Thus, it is the duty of the State, and not this Court or the local school districts, to meet this constitutional mandate.\\nWe are mindful of our duty to determine whether the current funding system passes constitutional muster, and we likewise respect the duties of the Legislature, as a separate branch of government, to make policy and funding decisions. It is not our intent to substitute our judgment on how to establish criteria for safe buildings or create a proper funding system for that of the Legislature. We agree with the Arizona Supreme Court when it stated, \\\"[Tjhere are doubtless many ways to create a school financing system that complies with the constitution. As the representatives of the people, it is up to the legislature to choose the methods and combinations of methods from among the many that are available.\\\" Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 179 Ariz. 233, 877 P.2d 806, 816 (1994). Nevertheless, we observe that legislatures of other states grappling with this same issue have come up with a number of alternatives to assist school districts in providing a safe environment conducive to learning. These alternatives simply demonstrate that there are options available to assist school districts, and are no way intended as this Court's direction to the Legislature on its further responsibilities. Reducing the majority necessary to pass a bond; allowing taxpayers to designate a portion of their income tax refund to cover repairs of school facilities (see Haw.Rev.Stat. \\u00a7 235-102.5); funding school facilities out of the state general fund (see, e.g., Educational Facilities Construction and Financing Act, 2000 N.J. Laws, c.72 (July 18, 2000) (codified at N.J. Stat. Ann. \\u00a7 18A:7G-1 to 18A:7G-44)); authorizing a study to determine the actual cost of providing a thorough education (see Kan. Stat. Ann. \\u00a7 46-1225); establishing a school facilities fund supported by a percentage of corporate income tax revenue (see N.C. Gen.Stat. \\u00a7 115C-546.1, 2(b)); or creating an emergency school building repair program to fund school districts' urgent repair needs, are only a few of the possibilities. Of course, we do not, and cannot, today pass on the constitutionality of any or all of these options as they may apply to school funding in Idaho, as that question has not yet been presented to us. By listing these alternatives, we are in no way usurping the Legislature's role; we leave the policy decisions to that separate branch of government, subject to our continuing responsibility to ensure Idaho's constitutional provisions are satisfied.\\nIn adopting Article IX, the citizens of Idaho placed their trust in the collective wisdom, creativity, and expertise of our legislators, and we do the same. We are firmly convinced the Legislature will carry out its constitutional duties in good faith and in a timely manner. At this juncture, we will not remand the case to the district court, but will retain jurisdiction to consider future legislative efforts to comply with the constitutional mandate to provide a safe environment conducive to learning so that we may exercise our constitutional role in interpreting the constitution and assuring that its provisions are met. We affirm the district court's conclusion that the current method of funding as it relates to school facilities is unconstitutional and we award costs on appeal to the Respondents.\\nJustice BURDICK and Justices Pro Tern KIDWELL and HURLBUTT concur.\\n. We note the lead testing may very well have been unnecessary for the purposes of this litigation. The question of heavy metal contamination in the Silver Valley is a federal EPA concern, as much of the Silver Valley and the surrounding area are already designated as a Superfund site.\\n. The Ohio Supreme Court stated it well when it said, \\\"The valuation of local property has no connection whatsoever to the actual education needs of the locality, with the result that a system overreliant on local property taxes is by its very nature an arbitrary system that can never be totally thorough.\\\" DeRolph v. State, 89 Ohio St.3d 1, 728 N.E.2d 993, 999 (2000).\"}"

idaho/3683807.json

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+"{\"id\": \"3683807\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Gary Lynn MORGAN, Defendant-Appellant\", \"name_abbreviation\": \"State v. Morgan\", \"decision_date\": \"2007-09-26\", \"docket_number\": \"No. 32371\", \"first_page\": \"861\", \"last_page\": \"865\", \"citations\": \"144 Idaho 861\", \"volume\": \"144\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:13:52.698652+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Judge PERRY and Judge LANSING concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Gary Lynn MORGAN, Defendant-Appellant.\", \"head_matter\": \"172 P.3d 1136\\nSTATE of Idaho, Plaintiff-Respondent, v. Gary Lynn MORGAN, Defendant-Appellant.\\nNo. 32371.\\nCourt of Appeals of Idaho.\\nSept. 26, 2007.\\nReview Denied Dec. 7, 2007.\\nMolly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant.\\nHon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.\", \"word_count\": \"2331\", \"char_count\": \"14090\", \"text\": \"WALTERS, Judge Pro Tern.\\nGary Lynn Morgan appeals from the judgment of conviction entered by the district court following a jury verdict of guilty on two counts of lewd conduct with a minor child under sixteen years of age. Morgan contends that the district court erred by failing to grant Morgan's motion for a mistrial based upon comments made by the prosecutor in the presence of the jury, and by failing to grant Morgan's subsequent motion for a new trial after the jury's verdict, based upon the same comments by the prosecutor. We affirm.\\nI.\\nBACKGROUND\\nThe following facts are relevant to the issues raised on appeal. The state charged Morgan with two counts of lewd conduct with a minor under sixteen, I.C. \\u00a7 18-1508. The charge was based on allegations that while living with his mother who operated a daycare center, Morgan sexually abused one of the boys in his mother's care on two occasions when Morgan forced the boy to perform oral sex on him. Morgan was thirty-eight years old and the boy was four years old at the time. Morgan asserted an alibi defense. Immediately prior to trial, Morgan's attorney represented to the district court and to the prosecutor, in chambers, that Morgan would testify on his own behalf. Relying on this representation, the prosecutor informed the jury during his opening statement (after outlining the substance of the testimony to be given by the state's witnesses) that Morgan's counsel \\\"has indicated that Gary Morgan is going to testify too.\\\" Morgan's attorney did not immediately object to this statement by the prosecutor, but later raised it as a basis for a motion for mistrial.\\nAt the conclusion of the state's case-in-chief, Morgan's attorney again represented to the court and the prosecutor, in chambers, that Morgan would be called as a witness in his own defense. Upon reconvening in open court, Morgan called the investigating officer, Detective Timony, as his first witness. On direct examination, Morgan's attorney established that the officer had interviewed Morgan as part of his investigation but did not tape-record his conversations with Morgan. Morgan's attorney then questioned the detective about Morgan's reaction when he was confronted with the boy's accusation against him, and the following took place:\\nDefense Counsel: Did Gary express to you a concern that he didn't know who you were talking about?\\nProsecutor: Object, Your Honor. It's leading and it's hearsay.\\nDefense Counsel: In the absence of having the tape, Your Honor, it's the only way I can ask these questions.\\nThe 00104;: All right. Yeah.\\nProsecutor: Mr. Morgan is here, and he can testify as to what he expressed.\\nThe Court: No. No.\\nDefense Counsel: If he keeps talking like that, we're going to have a mistrial.\\nThe Court: Yeah. Overrule the objection.\\nDefense Counsel: Okay. My question, then\\u2014\\nThe Court: In fact, Counsel, approach the bench.\\nAt this point, a bench conference was held. The content of that discussion is not included in the record. The proceeding then continued before the jury:\\nDefense Counsel: Did Gary express to you that he didn't remember who [the boy] was?\\nProsecutor: Object. Hearsay.\\nDefense Counsel: Once again, the officer didn't tape-record it. That's the only way to get this information in, Your Honor.\\nProsecutor: It calls for an out-of-court statement offered to prove the truth of the matter asserted.\\nThe Court: I'm going to think about this. All right. Ladies and gentlemen, I've got to figure out this issue. And so I'm going to take a recess at this time.\\nThe jury was excused from the courtroom while the district court entertained argument on the objection interposed by the prosecutor. As part of his argument supporting admissibility, Morgan's attorney moved for a mistrial, arguing that the prosecutor's comment that Morgan could testify as to what he expressed to the detective, together with the comment the prosecutor made in his opening statement that Morgan would testify for the defense, \\\"infringe[d] on [Morgan's] constitutional right to remain silent and has now put somewhat of a burden on him to have to testify.\\\" The district court reserved ruling on the mistrial motion at that time, but did overrule the state's objection to the question posed by Morgan's attorney to the detective. The jury was returned to the courtroom and the presentation of evidence was resumed.\\nLater, before calling Morgan as a witness, Morgan's attorney asked the court to revisit the motion for a mistrial. After hearing the arguments of counsel and reviewing the applicable law, the court declined to declare a mistrial, indicating that it was \\\"not at all persuaded that [the prosecutor's comments] would have that prejudicial an effect.\\\" After being advised by the district court of its ruling, Morgan took the stand and testified on his own behalf.\\nThe jury found Morgan guilty of two counts of lewd conduct with a minor child under the age of sixteen. Morgan filed a motion for a new trial, asserting, among other grounds, that the district court erred in denying his motion for a mistrial. After hearing arguments on the motion, the district court denied the motion by written order. The court entered judgment on the jury's verdicts and sentenced Morgan to life imprisonment with ten years fixed on each count, to run concurrently. Morgan then pursued this appeal. He contends the district court erred by failing to grant either Morgan's motion for a mistrial or his motion for a new trial, both of which were predicated on the prosecutor's comments concerning Morgan as a witness, which Morgan characterizes as infringing on his right to remain silent.\\nII.\\nANALYSIS\\nA. Mistrial Motion\\nIn criminal cases, motions for mistrial are governed by Idaho Criminal Rule 29.1. This rule provides in part that \\\"[a] mistrial may be declared upon motion of the defendant, when there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives the defendant of a fair trial.\\\" In State v. Barcella, 135 Idaho 191, 16 P.3d 288 (Ct.App.2000), we explained the well-established standard for review of a refusal to grant a mistrial:\\n[T]he question on appeal is not whether the trial judge reasonably exercised his discretion in light of circumstances existing when the mistrial motion was made. Rather, the question must be whether the event which precipitated the motion for mistrial represented reversible error when viewed in the context of the full record. Thus, where a motion for mistrial has been denied in a criminal case, the 'abuse of discretion' standard is a misnomer. The standard, more accurately stated, is one of reversible error. Our focus is upon the continuing impact on the trial of the incident that triggered the mistrial motion. The trial judge's refusal to declare a mistrial will be disturbed only if that incident, viewed retrospectively, constituted reversible error.\\nBarcella, 135 Idaho at 197, 16 P.3d at 294, quoting State v. Shepherd, 124 Idaho 54, 57, 855 P.2d 891, 894 (Ct.App.1993). See also State v. Atkinson, 124 Idaho 816, 818, 864 P.2d 654, 656 (Ct.App.1993); State v. Urquhart, 105 Idaho 92, 95, 665 P.2d 1102, 1105 (Ct.App.1983). The error will be deemed harmless if the appellate court is able to declare, beyond a reasonable doubt,- that there was no reasonable possibility that the event complained of contributed to the conviction. Shepherd, 124 Idaho at 58, 855 P.2d at 895, citing State v. LePage, 102 Idaho 387, 630 P.2d 674 (1981).\\nThe district court applied these same principles in its analysis of Morgan's contention that the prosecutor's reference to Morgan's availability to testify constituted an improper comment on Morgan's Fifth Amendment right to remain silent and forced him to testify. The court determined that Morgan was not unfairly prejudiced by the prosecutor's comments, which were made in reliance on defense counsel's repeated representations that Morgan would, in fact, testify. In its written order denying Morgan's request for a new trial, the district court, reviewed the entire proceedings and held:\\nConsequently, this Court concludes that while the comments of the prosecutor were at least ill-advised, and arguably improper, the Court concludes that those comments did not prejudice [Morgan's] right to a fair trial on these charges. In this case, [Morgan] did not exercise his right to remain silent, in which event the prosecutor's comments may have been more problematic. Instead, he chose to testify, so the comments of the prosecuting attorney may fairly be characterized as harmless. Further, the Court cannot conclude that the prosecutor's comments forced [Morgan] to forego his right not to testify; the strategy of the defense, which he had labeled as an \\\"alibi defense,\\\" placed him in a situation where his testimony was seemingly necessary. By way of example, though his employment time records ultimately did not become part of the record in this case, it was through [Morgan] that they were going to be introduced. Given the totality of the record in this trial, the Court can conclude, beyond a reasonable doubt, that there was no reasonable possibility that the comments complained of contributed to the jury's verdict.\\nWe agree with the district court's analysis. This is not a case where the prosecutor attempted to create an inference of guilt by presenting evidence that the defendant exercised his right to remain silent during a police interrogation after having received Miranda warnings, see, e.g., State v. Poland, 116 Idaho 34, 773 P.2d 651 (Ct.App.1989), or where the prosecutor in closing comments to the jury points to a defendant's failure to testify in the matter as an indication of guilt, e.g., State v. McMurry, 143 Idaho 312, 143 P.3d 400 (Ct.App.2006). Rather, Morgan claims that he was denied a fair trial because the prosecutor's comments placed him in a posture that he was required to testify, thereby involuntarily giving up his right to remain silent.\\nThe idea that Morgan would be a witness in the case did not originate with the prosecution. Instead, the defense had led the prosecutor to believe on several occasions that Morgan planned to testify on his own behalf, without any adverse comment first coming from the prosecution. As the district court pointed out in its decision, had Morgan chosen not to testify, then the court could have given an instruction to the jury that would have let them know that the prosecutor's representation that Morgan would testify was ill-founded and for them not to draw any inferences from Morgan's choice. Instead, Morgan made the decision to testify in order to support his alibi defense. Thus, although the prosecutor's comments referencing the defendant's role as a prospective witness should not have been made in front of the jury, once the defendant took the stand, the effect of the antecedent comments by the prosecutor became so diluted that they could not have reasonably contributed to the verdict rendered by the jury.\\nWe hold that the prosecutor's comments resulted in a harmless error which did not prejudice the defendant or deny him the right to a fair trial. Accordingly, the district court's decision not to grant a mistrial will be sustained.\\nB. Motion for New Trial\\nThe grounds upon which a district court may grant a new trial to a noncapital criminal defendant are set out in I.C. \\u00a7 19-2406. Our appellate courts have consistently recognized that this section is a legitimate exercise of the legislature's power to define the substantive law of this state, and sets out an exclusive list of the grounds for a new trial. See State v. Weise, 75 Idaho 404, 410, 273 P.2d 97, 100 (1954) (\\\"The grounds for a new trial are purely statutory. The court cannot provide any other ground.\\\"); State v. Lankford, 116 Idaho 860, 873, 781 P.2d 197, 210 (1989) (\\\"We note from the outset that while the decision of whether to grant a new trial is a discretionary matter for the trial judge[,] Idaho Code \\u00a7 19-2406(7) limits the instances in which that discretion may be exercised.\\\" (Footnote omitted), cert. denied, 497 U.S. 1032, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990)).\\nAs a ground for a new trial, Morgan cited I.C. \\u00a7 19-2406(5) and argued that the district court \\\"erred in the decision of [a] question of law arising during the course of the trial\\\" when the court decided not to grant Morgan's motion for a mistrial. We have upheld the court's decision with regard to the mistrial motion and need not revisit that issue with respect to the motion for a new trial.\\nWe conclude that the district court did not err in denying Morgan's motion for a new trial. The order denying a new trial is upheld.\\nIII.\\nCONCLUSION\\nThe district court did not err in denying either Morgan's motion for a mistrial or for a new trial. The judgment of conviction, for two counts of lewd conduct with a minor under the age of sixteen, is affirmed.\\nChief Judge PERRY and Judge LANSING concur.\\n. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).\\n. In his appellate argument, although Morgan maintains that the prosecutor's comments were improper, he does not go so far as to describe the prosecutor's activities as \\\"prosecutorial misconduct,\\\" evidently recognizing that allegations of prosecutorial misconduct at trial are not among the grounds for a new trial provided by I.C. \\u00a7 19-2406 (as distinguished from grounds for a mistrial). See State v. Jones, 127 Idaho 478, 903 P.2d 67 (1995). Cf. State v. Davis, 127 Idaho 62, 64, 896 P.2d 970, 972 (1995) (no abuse of discretion in denial of new trial motion where grounds not provided for by statute).\"}"

idaho/3707053.json

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+"{\"id\": \"3707053\", \"name\": \"In the Matter of the Driver's License Suspension of Mark Eugene JOHNSON. Mark Eugene Johnson, Petitioner-Respondent, v. State of Idaho, Transportation Department, Appellant\", \"name_abbreviation\": \"Johnson v. State, Transportation Department\", \"decision_date\": \"2012-05-31\", \"docket_number\": \"No. 38090\", \"first_page\": \"246\", \"last_page\": \"252\", \"citations\": \"153 Idaho 246\", \"volume\": \"153\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:22:56.645659+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge LANSING and Judge MELANSON concur.\", \"parties\": \"In the Matter of the Driver\\u2019s License Suspension of Mark Eugene JOHNSON. Mark Eugene Johnson, Petitioner-Respondent, v. State of Idaho, Transportation Department, Appellant.\", \"head_matter\": \"280 P.3d 749\\nIn the Matter of the Driver\\u2019s License Suspension of Mark Eugene JOHNSON. Mark Eugene Johnson, Petitioner-Respondent, v. State of Idaho, Transportation Department, Appellant.\\nNo. 38090.\\nCourt of Appeals of Idaho.\\nMay 31, 2012.\\nReview Denied July 20, 2012.\\nEdwin L. Litteneker, Lewiston, for appellant.\\nSiebe Law Offices, PLLC, Moscow, for respondent. James E. Siebe argued.\", \"word_count\": \"3041\", \"char_count\": \"18667\", \"text\": \"PERRY, Judge Pro Tern.\\nThe Idaho Department of Transportation (ITD) appeals from the district court's order vacating the hearing officer's decision to sustain the suspension of Mark Eugene Johnson's driver's license. ITD claims that the district court lacked jurisdiction to enter a stay pending judicial review because Johnson did not exhaust his administrative remedies. ITD also claims the court lacked jurisdiction to vacate the hearing officer's decision because Johnson filed his petition for judicial review prior to receiving a final, appealable order. ITD argues in the alternative that if the district court had jurisdiction, then it erred when it overturned the hearing officer's finding that the breath test was administered in compliance with Idaho Code \\u00a7 18-8004(4) in regard to the fifteen-minute monitoring period.\\nI.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nOn October 10, 2009, Johnson was arrested and charged with driving under the influence in violation of I.C. \\u00a7 18-8004. After his arrest, Johnson was transported to the Nez Perce County Jail by Sergeant Lee because the arresting officer, Deputy Rodriguez, transported Johnson's dog to Johnson's home. Once Deputy Rodriguez returned, he replaced Sergeant Lee in observing Johnson. According to Deputy Rodriguez's subsequent affidavit, the two officers observed Johnson for a combined time of approximately thirty-four minutes before Johnson took the breathalyzer test. However, neither officer individually monitored Johnson continuously for the required fifteen minutes immediately prior to Johnson submitting to the breath test. The breath test samples showed a result of .167 and .168, and ITD served Johnson with a notice of administrative license suspension (ALS), pursuant to I.C. \\u00a7 18-8002A, due to his failure of the breath test. Johnson also received a notice of a commercial driver's license (CDL) disqualification pursuant to I.C. \\u00a7 49-335 that was dated October 19, 2009, and effective on November 9, 2009.\\nJohnson requested an ALS hearing to contest his license suspension, which was held on November 2, 2009. At the hearing Johnson argued that the fifteen-minute observation period was not complied with according to the standard operating procedures. On November 4, 2009, Johnson also requested an administrative hearing to contest his CDL disqualification. On November 6, 2009, Johnson filed a petition for judicial review seeking review of the notice of CDL disqualification and the proposed ALS. Johnson also filed with the district court a motion to stay his driver's license suspension pending a decision on his ALS hearing and CDL disqualification. At the time of the November 6 filings, the hearing officer had not issued the findings of fact, conclusions of law and order on Johnson's ALS and no hearing had been held on his CDL disqualification.\\nOn November 24, 2009, the district court stayed the CDL disqualification in the event that Johnson's driving privileges were reinstated by ITD. The hearing officer sustained Johnson's license suspension pursuant to I.C. \\u00a7 18-8002A on December 9, 2009; after a separate hearing, Johnson's CDL disqualification was also sustained on December 19, 2009. On February 23, 2010, ITD filed a motion with the district court to dismiss the stay on the basis that Johnson had prematurely sought judicial review prior to the hearing officer's issuance of a decision. The district court denied that motion on March 24, 2010. On September 10, 2010, the district court overturned the license suspension on the basis that substantial and competent evidence did not support the hearing officer's finding that the police officers complied with the fifteen-minute observation period. ITD timely appealed.\\nII.\\nDISCUSSION\\nThe Idaho Administrative Procedures Act (IDAPA) governs the review of ITD decisions to deny, cancel, suspend, disqualify, revoke, or restrict a person's driver's license. See I.C. \\u00a7 49-201, 49-330, 67-5201(2), 67-5270. In an appeal from the decision of the district court, acting in its appellate capacity under IDAPA, this Court reviews the agency record independently of the district court's decision. Marshall v. Idaho Dep't of Transp., 137 Idaho 337, 340, 48 P.3d 666, 669 (Ct.App.2002). This Court does not substitute its judgment for that of the agency as to the weight of the evidence presented. I.C. \\u00a7 67-5279(1); Marshall, 137 Idaho at 340, 48 P.3d at 669. This Court instead defers to the agency's findings of fact unless they are clearly erroneous. Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265 (1998); Marshall, 137 Idaho at 340, 48 P.3d at 669. In other words, the agency's factual determinations are binding on the reviewing court, even where there is conflicting evidence before the agency, so long as the determinations are supported by substantial and competent evidence in the record. Urrutia v. Blaine County, ex rel. Bd. of Comm'rs, 134 Idaho 353, 357, 2 P.3d 738, 742 (2000); Marshall, 137 Idaho at 340, 48 P.3d at 669.\\nThe Court may overturn an agency's decision where its findings, inferences, conclusions, or decisions: (a) violate statutory or constitutional provisions; (b) exceed the agency's statutory authority; (c) are made upon unlawful procedure; (d) are not supported by substantial evidence in the record; or (e) are arbitrary, capricious, or an abuse of discretion. I.C. \\u00a7 67-5279(3). The party challenging the agency decision must demonstrate that the agency erred in a manner specified in I.C. \\u00a7 67-5279(3) and that a substantial right of that party has been prejudiced. Price v. Payette County Bd. of County Comm'rs, 131 Idaho 426, 429, 958 P.2d 583, 586 (1998); Marshall, 137 Idaho at 340, 48 P.3d at 669. If the agency's decision is not affirmed on appeal, \\\"it shall be set aside . and remanded for further proceedings as necessary.\\\" I.C. \\u00a7 67-5279(3).\\nThe ALS statute, I.C. \\u00a7 18-8002A, requires that ITD suspend the driver's license of a driver who has failed a BAC test administered by a law enforcement officer. The period of suspension is ninety days for a driver's first failure of an evidentiary test and one year for any subsequent test failure within five years. I.C. \\u00a7 18-8002A(4)(a). A person who has been notified of an ALS may request a hearing before a hearing officer designated by ITD to contest the suspension. I.C. \\u00a7 18-8002A(7); Kane v. State, Dep't of Transp., 139 Idaho 586, 588, 83 P.3d 130, 132 (Ct.App.2003). The hearing officer must uphold the suspension unless he or she finds, by a preponderance of the evidence, that the driver has shown one of several grounds enumerated in I.C. \\u00a7 18-8002A(7) for vacating the suspension. Those grounds are:\\n(a) The peace officer did not have legal cause to stop the person; or\\n(b) The officer did not have legal cause to believe the person had been driving or was in actual physical control of a vehicle while under the influence of alcohol, drugs or other intoxicating substances in violation of the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code; or\\n(c) The test results did not show an alcohol concentration or the presence of drugs or other intoxicating substances in violation of section 18-8004, 18-8004C or 18-8006, Idaho Code; or\\n(d) The tests for alcohol concentration, drugs or other intoxicating substances administered at the direction of the peace officer were not conducted in accordance with the requirements of section 18-8004(4), Idaho Code, or the testing equipment was not functioning properly when the test was administered; or\\n(e) The person was not informed of the consequences of submitting to evidentiary testing as required in subsection (2) of this section.\\nI.C. \\u00a7 18-8002A(7). The hearing officer's decision is subject to challenge through a petition for judicial review. I.C. \\u00a7 18-8002A(8); Kane, 139 Idaho at 589, 83 P.3d at 133.\\nA. Final Order\\nITD claims that the district court lacked subject matter jurisdiction to hear Johnson's petition for judicial review. The issue of whether the district court had jurisdiction over an action is one of law, over which this Court exercises free review. Troupis v. Summer, 148 Idaho 77, 79, 218 P.3d 1138, 1140 (2009). The failure to file a timely petition for judicial review is jurisdictional and causes automatic dismissal of the petition. I.R.C.P. 84(n).\\nThe Idaho Constitution allows the legislature to delimit the district courts' appellate jurisdiction. IDAHO CONST, art. V, \\u00a7 20. Actions by state agencies are not subject to judicial review unless expressly authorized by statute. I.R.C.P. 84(a)(1). Without an enabling statute, the district court lacks subject matter jurisdiction. See, e.g., In re Williams, 149 Idaho 675, 678-79, 239 P.3d 780, 783-84 (2010) (dismissing a petition for review for lack of jurisdiction because no statute authorized an appeal); Taylor v. Canyon County Bd. of Comm'rs, 147 Idaho 424, 431-32, 210 P.3d 532, 539-40 (2009) (same); cf. Regan v. Kootenai County, 140 Idaho 721, 726, 100 P.3d 615, 620 (2004) (holding that a reviewable final order is necessary for subject matter jurisdiction). The Idaho Administrative Procedure Act, I.C. \\u00a7 67-5201 to 5292, governs judicial review of agency actions. Gibson v. Ada County Sheriffs Dep't, 139 Idaho 5, 7, 72 P.3d 845, 847 (2003) (citing I.C. \\u00a7 67-5201, -5270). Idaho Code \\u00a7 67-5270 allows petitions for review of a final order in a contested case if the petitioner \\\"complies with the requirements of sections 67-5271 through 67-5279, Idaho Code.\\\" I.C. \\u00a7 67-5270(3).\\nPursuant to I.R.C.P. 84(b)(1), \\\"a petition for judicial review from an agency to district court must be filed with the appropriate district court within twenty-eight (28) days after the agency action is ripe for judicial review under the statute authorizing judicial review,\\\" unless a different time is prescribed by statute. Idaho Code \\u00a7 18-8002A(8) provides: \\\"A party aggrieved by the decision of the hearing officer may seek judicial review of the decision in the manner provided for judicial review of final agency action provided in chapter 52, title 67, Idaho Code.\\\" At the time this action arose (2009), I.C. \\u00a7 67-5273(2) stated in relevant part: \\\"A petition for judicial review of a final order . must be filed within twenty-eight (28) days of the issuance of the final order . or, if reconsideration is sought, within twenty-eight (28) days after the decision thereon.\\\"\\nWhen read together, I.C. \\u00a7 67-5270 and 67-5273 require a petition for judicial review to be filed within twenty-eight days after a final, appealable order or the petition would not be proper. Johnson acknowledges that the hearing officer had not filed a final, appealable order at the time he filed his petition for judicial review. However, Johnson argues that the district court had jurisdiction because a petition for judicial review is akin to an appeal, and through Idaho Appellate Rule 17(e)(2) a \\\"premature\\\" notice of appeal does not need to be refiled. The State responds that the Idaho Appellate Rules, and specifically Rule 17(e)(2), are in- applicable to the case at hand because the petition for judicial review initiates a new action and not an appeal.\\nEven if this Court applied I.AR. 17(e)(2) in the same manner that the district court did, the rule does not save Johnson's premature filing. Idaho Appellate Rule 17(e)(2) provides: \\\"A notice of appeal filed from an appealable judgment or order before formal written entry of such document shall become valid upon the filing and the placing the stamp of the clerk of the court on such appealable judgment or order, without refiling the notice of appeal.\\\" This Court has held in Hawley v. Green, 124 Idaho 385, 860 P.2d 1 (Ct.App.1993) that for I.AR. 17(e)(2) to apply to a premature filing, the lower court must have orally ruled and thereby indicated the outcome. Id. at 388, 860 P.2d at 4. More recently, this Court in Weller v. State, 146 Idaho 652, 200 P.3d 1201 (Ct.App.2008) upheld a premature filing because the \\\"district court . had expressed its intention to dismiss Weller's petition.\\\" Id. at 654, 200 P.3d at 1203 (emphasis in original).\\nIn the present case, Johnson's ALS hearing was conducted on November 2, 2009, but there was apparently no oral ruling at that t\\u00edme. On November 6, 2009, Johnson prematurely filed a petition for judicial review and a petition for stay pending judicial review. The hearing officer did not sustain the license suspension until December 8, 2009. Furthermore, Johnson filed a motion for reconsideration of the hearing officer's decision on December 22, 2009, which was denied on January 10, 2010. According to Weller and Hawley, Johnson's premature filing would be effective only if the hearing officer orally ruled or expressed his intentions to sustain Johnson's license suspension at some point prior to Johnson filing his petition for judicial review. See Weller, 146 Idaho at 654, 200 P.3d at 1203; Hawley, 124 Idaho at 388, 860 P.2d at 4. The record here does not demonstrate that the hearing officer expressed, either orally or in some other fashion, his intention of sustaining Johnson's license suspension prior to Johnson filing his petition for judicial review on November 6, 2009. Thus, even if this Court were to apply LAR. 17(e)(2) to a petition for judicial review as though it were analogous to a notice of appeal, it does not save Johnson's premature filing.\\nFor the reasons stated above, we dismiss the district court's order vacating the hearing officer's decision. Johnson had twenty-eight days to file a petition for review of the hearing officer's decision, and his time began to run on January 10, 2010, the date his motion for reconsideration was denied; it has since expired. Although this result appears harsh, jurisdiction for judicial review in this case is limited by the time periods specified in I.C. \\u00a7 67-5273(2) and applicable rules, and this Court has no authority to disregard those limits.\\nAs noted above, the appellant conceded at oral argument that if this Court determined the district court lacked subject matter jurisdiction on the petition for judicial review, then it would be unnecessary to address whether the district court had jurisdiction to grant the stay of Johnson's CDL privileges. Likewise, without jurisdiction, this Court will not address the remaining issue of whether the police officers complied with the fifteen-minute observation period.\\nB. Attorney Fees\\nITD requests an award of attorney fees pursuant to I.C. \\u00a7 12-117(1). The parties are not eligible for attorney fees under I.C. \\u00a7 12-117(1), which permits fees \\\"in any administrative proceeding or civil judicial proceeding.\\\" As the Idaho Supreme Court recently held, a petition for judicial review of an agency action is neither an administrative proceeding nor a civil judicial proceeding, so I.C. \\u00a7 12-117(1) does not enable the courts to award attorney fees in cases that originated in court by petition for judicial review. Smith v. Washington County Idaho, 150 Idaho 388, 391, 247 P.3d 615, 618 (2010). Neither party can collect fees under I.C. \\u00a7 12-117(1) for this appeal.\\nIII.\\nCONCLUSION\\nThe district court lacked subject matter jurisdiction, as does this Court, to consider Johnson's petition for judicial review. The order reversing ITD's decision to sustain Johnson's license suspension is vacated and the appeal dismissed. No attorney fees are awarded.\\nJudge LANSING and Judge MELANSON concur.\\n. ITD's counsel conceded at oral argument that if this Court determines that the district court did not have jurisdiction to vacate the hearing officer's decision, then it is unnecessary for the Court to address the stay.\\n. ITD notes that the Idaho Rules of Administrative Procedure promulgated by the Idaho Attorney General provide the proper avenue to petition an agency for a stay. The relevant provision states: \\\"Any party or person affected by an order may petition the agency to stay any order, whether interlocutory or final. Interlocutory or final orders may be stayed by the judiciary according to statute. The agency may stay any interlocutory or final order on its own motion.\\\" IDAPA 04.11.01.780. However, it should also be noted that at the time Johnson requested a stay from the district court, November 6, 2009, ITD's own rules provided that a hearing officer's failure to issue the findings of fact, conclusions of law and order prior to the expiration of a suspended driver's thirty-day temporary permit \\\"shall not be grounds for staying or vacating the suspension Former IDAPA 39.02.72.600.01.\\n. The Idaho Constitution states: \\\"The district court shall have original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law.\\\" IDAHO CONST, art. V, \\u00a7 20.\\n. Idaho Code \\u00a7 67-5273(2) was amended in 2010 such that the period for filing a petition for judicial review now begins to run on the date of service. 2010 Idaho Sess. Laws, ch. 255, \\u00a7 5, p. 648. The amendment, however, has no bearing on the determination of this case.\\n. The Idaho Supreme Court has held, \\\"As a general rule, a final judgment is an order or judgment that ends the lawsuit, adjudicates the subject matter of the controversy, and represents a final determination of the rights of the parties.\\\" Camp v. East Fork Ditch Co., Ltd., 137 Idaho 850, 867, 55 P.3d 304, 321 (2002). The same requirement applies to a final order under Idaho Code \\u00a7 67-5270(3). A final order would be one that resolves all issues, or the last unresolved issue, presented in the contested case so that it constitutes a final determination of the rights of the parties. If issues necessary for a final determination of the parties' rights remain unresolved, there is no final order. In re Nagle, 126 Idaho 139, 140, 879 P.2d 602, 603 (1994).\\n. There is no transcript for the ALS hearing because the hearing officer only heard argument from counsel and did not receive testimony from any witnesses, only affidavits.\\n. Idaho Code \\u00a7 67-5273(3) allows \\\"[t]he time for filing a petition for review shall be extended during the pendency of the petitioner's timely attempts to exhaust administrative remedies, if the attempts are clearly not frivolous or repetitious.\\\" See, e.g., Petersen v. Franklin County, 130 Idaho 176, 185, 938 P.2d 1214, 1223 (1997).\"}"

idaho/4073836.json

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+"{\"id\": \"4073836\", \"name\": \"In the Matter of the Driver's License Suspension of Gary Alan Feasel Gary Alan FEASEL, Petitioner-Respondent, v. IDAHO TRANSPORTATION DEPARTMENT, Respondent-Appellant\", \"name_abbreviation\": \"Feasel v. Idaho Transportation Department\", \"decision_date\": \"2009-10-15\", \"docket_number\": \"No. 35720\", \"first_page\": \"312\", \"last_page\": \"316\", \"citations\": \"148 Idaho 312\", \"volume\": \"148\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T01:00:11.581706+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Judge LANSING and Judge GRATTON concur.\", \"parties\": \"In the Matter of the Driver\\u2019s License Suspension of Gary Alan Feasel Gary Alan FEASEL, Petitioner-Respondent, v. IDAHO TRANSPORTATION DEPARTMENT, Respondent-Appellant.\", \"head_matter\": \"222 P.3d 480\\nIn the Matter of the Driver\\u2019s License Suspension of Gary Alan Feasel Gary Alan FEASEL, Petitioner-Respondent, v. IDAHO TRANSPORTATION DEPARTMENT, Respondent-Appellant.\\nNo. 35720.\\nCourt of Appeals of Idaho.\\nOct. 15, 2009.\\nReview Denied Jan. 11, 2010.\\nMichael Kane & Assoc., PLLC, Boise, for appellant. Michael J. Kane argued.\\nRobert A. Wallace, Boise, for respondent.\", \"word_count\": \"2417\", \"char_count\": \"14735\", \"text\": \"GUTIERREZ, Judge.\\nThe Idaho Transportation Department (ITD) appeals the district court's reversal of an order of an ITD hearing officer suspending Gary Alan Feasel's driver's license. For the reasons set forth below, we reverse the decision of the district court.\\nI.\\nBACKGROUND\\nFeasel was arrested for driving under the influence after he rear-ended a vehicle at the intersection of Broadway and Front Street in Boise. An officer at the scene submitted an affidavit indicating that Feasel admitted to having taken multiple medications including Ambien CR, Lithium, Prozac, and Wellbutrin at some point prior to the accident. The officer also noted that Feasel had slurred speech, appeared sleepy, and exhibited an impaired memory. The officer performed field sobriety tests including the gaze nystagmus, walk and turn, and one leg stand tests, all of which Feasel failed. Feasel submitted to a breath alcohol test which showed no trace of alcohol, and a urine test which detected the presence of fluoxetine (Prozac).\\nFeasel was notified by the ITD of an administrative license suspension (ALS) and timely requested an administrative hearing. At the hearing, warning labels from each of the medications were read. Each label indicated that the drugs may cause drowsiness and may impair or lessen the ability to drive or operate a car, and the Prozac label specifically warned that the user should be familiar with the effects before driving. A toxicologist testified that the urine test showed only that the driver had ingested some unknown quantity of Prozac at some time in the past and that this fact alone could not support the inference of impairment. Feasel argued that .since the urinalysis results did not quantify the drugs found in his system, a violation of Idaho Code \\u00a7 18-8004 could not be established. He stressed that he was taking the medication pursuant to a valid prescription and that, prior to the date of the incident, he had never had impairment problems while taking all four medications at once. The hearing officer determined that I.C. \\u00a7 18-8004 and 18-8002A do not require the quantification of a drug in the driver's body for a violation to occur; only the presence of drugs is required combined with indications of impairment. The hearing officer also relied on I.C. \\u00a7 18-8004(7), which specifies that a valid prescription or prior use without impairment are not defenses. The hearing officer upheld the suspension, determining that \\\"the officer gave numerous indications that the driver was impaired. Those observations combined with the results showing the presence of drugs were sufficient to establish a violation of I.C. \\u00a7 18-8004 and 18-8002A.\\\"\\nFeasel filed a timely petition for judicial review. At the district court level he argued that a urine test indicating the presence of a drug is not enough to form the basis of a license suspension. Rather, he argued, there must be some quantitative measurement or clear factual connection to a driving pattern or other evidence of im pairment attributable to those specific drugs. The district court determined that a direct causal linkage among the circumstances of driving, drug ingestion, and impairment must be established in order to suspend a driver's license under I.C. \\u00a7 18-8002A(4). It found that cases involving drugs and other intoxicating substances require a different structure of proof than eases involving alcohol because the statute provides the necessary causal linkage with regard to alcohol, but does not do the same with drugs or other intoxicating substances. The court determined that there was no evidence of linkage to show that any of the medications that Feasel admitted to taking are intoxicating substances or that they could or did cause the impairments demonstrated at the scene of the accident. The court stated that the mere taking of Prozac is not sufficient by itself to show that the impairments that were later observed were caused by it, that there' was no proof to show that Prozac in sufficient quantities would cause impairment and that there was no proof that Feasel had even ingested a sufficient quantity. The district court ultimately reversed the hearing officer's order of suspension, ruling that the proof in this case was insufficient to state a legal cause to believe Feasel was driving under the influence of drugs or other intoxicating substances and ordered that the action be remanded to reinstate Feasel's driving privileges. The ITD appeals seeking reversal of the district court's decision.\\nII.\\nDISCUSSION\\nThe Idaho Administrative Procedures Act (I.D.A.P.A.) governs the review of department decisions to deny, cancel, suspend, disqualify, revoke or restrict a person's driver's license. See I.C. \\u00a7 49-330, 67-5270. In an appeal from the decision of the district court acting in its appellate capacity under I.D.A.P.A., this Court reviews the agency record independently of the district court's decision. Marshall v. Idaho Dep't of Transp., 137 Idaho 337, 340, 48 P.3d 666, 669 (Ct.App.2002). This Court does not substitute its judgment for that of the agency as to the weight of the evidence presented. I.C. \\u00a7 67-5279(1); Marshall, 137 Idaho at 340, 48 P.3d at 669. This Court instead defers to the agency's findings of fact unless they are clearly erroneous. Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265 (1998); Marshall, 137 Idaho at 340, 48 P.3d at 669. In other words, the agency's factual determinations are binding on the reviewing court, even where there is conflicting evidence before the agency, as long as the determinations are supported by substantial competent evidence in the record. Urrutia v. Blaine County, ex rel. Bd. of Comm'rs, 134 Idaho 353, 357, 2 P.3d 738, 742 (2000); Marshall, 137 Idaho at 340, 48 P.3d at 669.\\nA court may overturn an agency's decision where its findings, inferences, conclusions or decisions: (a) violate statutory or constitutional provisions; (b) exceed the agency's statutory authority; (c) are made upon unlawful procedure; (d) are not supported by substantial evidence in the record; or (e) are arbitrary, capricious or an abuse of discretion. I.C. \\u00a7 67-5279(3). The party challenging the agency decision must demonstrate that the agency erred in a manner specified in I.C. \\u00a7 67-5279(3) and that a substantial right of that party has been prejudiced. Price v. Payette County Bd. of County Comm'rs, 131 Idaho 426, 429, 958 P.2d 583, 586 (1998); Marshall, 137 Idaho at 340, 48 P.3d at 669. If the agency's decision is not affirmed on appeal, \\\"it shall be set aside . and remanded for further proceedings as necessary.\\\" I.C. \\u00a7 67-5279(3).\\nThe ALS statute, I.C. \\u00a7 18-8002A, requires that the ITD suspend the driver's license of a driver who has failed an evidentiary test administered by a law enforcement officer. The period of suspension is ninety days for a driver's first failure of an evidentiary test and one year for any subsequent test failure within five years. I.C. \\u00a7 18-8002A(4)(a). A person who has been notified of an ALS may request a hearing before a hearing officer designated by the ITD to contest the suspension. I.C. \\u00a7 18-8002A(7). At the administrative hearing, the burden of proof rests upon the driver to prove any of the grounds to vacate the suspension. I.C. \\u00a7 18-8002AC7); Kane v. State, Dep't of Transp., 139 Idaho 586, 590, 83 P.3d 130, 134 (Ct.App.2003). The hearing officer must uphold the suspension unless he or she finds, by a preponderance of the evidence, that the driver has shown one of several grounds enumerated in I.C. \\u00a7 18-8002A(7) for vacating the suspension. Those grounds include:\\n(b) The officer did not have legal cause to believe the person had been driving or was in actual physical control of a vehicle while under the influence of alcohol, drugs or other intoxicating substances in violation of the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code; or\\n(c) The test results did not show an alcohol concentration or the presence of drugs or other intoxicating substances in violation of section 18-8004, 18-8004C or 18-8006, Idaho Code....\\nI.C. \\u00a7 18-8002A(7). The hearing officer's decision is subject to challenge through a petition for judicial review. I.C. \\u00a7 18-8002A(8); Kane, 139 Idaho at 589, 83 P.3d at 133. The interpretation of a statute is an issue of law over which we exercise free review. Corder v. Idaho Farmway, Inc., 133 Idaho 353, 358, 986 P.2d 1019, 1024 (Ct.App.1999).\\nIdaho Code \\u00a7 18-8002A(4)(a) states in relevant part:\\nUpon receipt of the sworn statement of a peace officer that there existed a legal cause to believe a person had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol, drugs or other intoxicating substances and that the person submitted to a test and the test results indicated an alcohol concentration or the presence of drugs or other intoxicating substances in violation of section 18-8004 . the department shall suspend the person's driver's license....\\nThe ITD argues that for purposes of I.C. \\u00a7 18-8002A(4) and 18-8004, the hearing-officer can properly infer that a drug caused intoxication if evidence shows that there is some degree of impairment and that the test results indicate the presence of drugs or other intoxicating substances. As the district court noted, there is a different structure of proof under the statute when dealing with alcohol than there is when dealing with drugs. The statute sets forth a specific alcohol concentration in a driver's blood, breath or urine that is unlawful. See I.C. \\u00a7 18-8004. This is not the case with drugs and other intoxicating substances. Contrary to the district court's interpretation, neither I.C. \\u00a7 18-8002A(4) nor I.C. \\u00a7 18-8004 requires that the state show the quantity or concentration of drugs in a driver's system and that such a quantity would cause impairment. Under the district court's interpretation, in drug cases, the state must show by test or expert testimony that ingestion of a particular drug in sufficient quantity caused impairment.\\nThis Court rejected the quantification argument, albeit in a criminal action context, in State v. Lesley, 133 Idaho 23, 26, 981 P.2d 748, 751 (Ct.App.1999). There, Lesley argued that under I.C. \\u00a7 18-8004, the state was required to prove the quantity of drugs present in a person's bloodstream before the ability to drive will be impeded and that such quantity was present. Lesley, in essence, rejected this quantification requirement, stating:\\n. [T]hat section . [makes] it a crime for a person to drive or be in actual physical control of the motor vehicle if the person \\\"is under the influence of any . drug or any combination of alcohol and any drug to the degree which renders him incapable of safely driving a motor vehicle.\\\" I.C. \\u00a7 18-8004(5) (1994). A violation turns upon the effect that the drugs or combination of drugs and alcohol have on the individual's ability to safely operate a vehicle, not upon any quantification of the amount of a drug in the bloodstream.\\nLesley, 133 Idaho at 26, 981 P.2d at 751.\\nFor the first time on appeal, Feasel argues that under I.C. \\u00a7 18-8002A(7)(c), the hearing officer was strictly limited to consider only the results of the test and not any other circumstantial evidence. This argument was not presented to the hearing officer, but developed in the district court. In raising this argument, Feasel relies on Reise nauer v. State Dep't. of Transp., 145 Idaho 948, 188 P.3d 890 (2008). In that case, our Supreme Court determined that a drug must be intoxicating in order for I.C. \\u00a7 18-8002A to apply. Feasel argues that Reisenauer stands for the proposition that a hearing officer needs more than qualitative test results merely showing the presence of a drug to uphold a license suspension. However, Feasel misconstrues Reisenauer and its application to the instant case. There, it was concluded that the test need only indicate the presence of intoxicating drugs. Id. at 951, 188 P.3d at 893. In the instant case, the hearing officer was correct to consider not only the test results indicating the presence of Prozac, but also the other evidence of the potential effects of Prozac and the other drugs.\\nHere, Feasel's urine test results indicated that Prozac was present in his system at the time of the accident. The label on the Prozac indicated it may cause drowsiness, it may impair or lessen the ability to drive or operate a car and the user should be familiar with the effects before driving. Feasel also admitted to taking other prescription medications having similar effects just prior to the accident. The officer observed, and the video tape of the encounter shows, Feasel had slurred speech, an impaired memory, seemed sleepy and failed the field sobriety tests. Based on the evidence presented at the suspension hearing, it was proper for the hearing officer to infer that Prozac, in combination with the other drugs ingested, caused intoxication and consequently impaired Feasel's ability to drive safely. Moreover, pursuant to I.C. \\u00a7 18-8004(7), it is not a defense that a person charged with a violation of this statute has a history of past use of the drug or carries a valid prescription for the drug. See also State v. Goerig, 121 Idaho 108, 113, 822 P.2d 1005, 1010 (Ct.App.1991) (The fact that Goerig was legally entitled to take lithium because it had been prescribed to him was not a defense to a charge of driving under the influence of intoxicants.). Accordingly, any of Feasel's claims that he had a valid prescription or had been using the medications together for some time without experiencing any problems are not defenses. By the statute's plain language, only the presence of drugs, not the quantity, must be established along with other competent evidence of impairment caused by the drugs.\\nIII.\\nCONCLUSION\\nThe district court erred by reversing the ITD's order suspending Feasel's driver's license. Feasel did not meet his burden of proof to establish any ground for vacating his suspension. The evidence before the hearing officer established that Feasel was operating a motor vehicle while under the influence of drugs. Accordingly, we reverse the district court's reversal of the administrative license suspension and affirm the suspension.\\nChief Judge LANSING and Judge GRATTON concur.\"}"

idaho/4073952.json

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+"{\"id\": \"4073952\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. John DOE, Defendant-Appellant\", \"name_abbreviation\": \"State v. Doe\", \"decision_date\": \"2010-03-26\", \"docket_number\": \"No. 36606\", \"first_page\": \"919\", \"last_page\": \"937\", \"citations\": \"148 Idaho 919\", \"volume\": \"148\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T01:00:11.581706+00:00\", \"provenance\": \"CAP\", \"judges\": \"Justices BURDICK, W. JONES, and HORTON, and Justice Pro Tem TROUT concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. John DOE, Defendant-Appellant.\", \"head_matter\": \"231 P.3d 1016\\nSTATE of Idaho, Plaintiff-Respondent, v. John DOE, Defendant-Appellant.\\nNo. 36606.\\nSupreme Court of Idaho, Boise,\\nFebruary 2010 Term.\\nMarch 26, 2010.\\nRehearing Denied May 5, 2010.\\nCapitol Law Group, PLLC, Boise, for appellant. David A. Heida argued.\\nHonorable Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.\", \"word_count\": \"9980\", \"char_count\": \"61780\", \"text\": \"J. JONES, Justice.\\nJohn Doe appeals the district court's holding that Wendell City Ordinance No. 442 is not facially unconstitutional. We affirm.\\nI.\\nFacts and Procedural History\\nJohn Doe, a minor, was a passenger in a vehicle stopped at 1:30 a.m. for a traffic violation. Doe was supposed to be staying at a friend's house, but sneaked out with two friends to look for a party. Doe was cited for a violation of Wendell City Ordinance No. 442 (\\\"Ordinance\\\"), a curfew ordinance, which provides:\\nSECTION 1. CURFEW HOURS, VIOLATIONS, AND EXCEPTIONS\\nA. NIGHT TIME CURFEW: It shall be unlawful for any minor person under the age of eighteen (18) years to loiter, idle, wander, stroll, play, or otherwise be upon the public streets, highways, roads, sidewalks, alleys, parks, playgrounds, or other public grounds, or public places, building, or other property generally open to public use, or vacant lots within the City of Wendell, between the hours of 11:00 o'clock p.m. and 5:00 o'clock a.m.\\nB. EXCEPTIONS: The provisions of this section do not apply to a minor accompanied by his or her parents or legal guardians, or where the minor is upon an emergency errand or other legitimate business directed by his or her parents or legal guardian or custodian or school, having in their possession some form of documentation as to the business to be performed.\\nSECTION 5. PENALTIES\\nAny person in violation of any section or provision of this ordinance shall be guilty of a misdemeanor and upon conviction thereof shall be punished as provided in Ordinance Number 192 of the City of Wendell, Idaho. Each violation of any section of this ordinance shall constitute a separate offense.\\nDoe sought to dismiss the citation in juvenile court, asserting the Ordinance was facially unconstitutional. Specifically, Doe argued that the Ordinance was void for vagueness in violation of the Due Process Clause, was overbroad in violation of the First Amendment, denied Doe equal protection of the laws in violation of the Fourteenth Amendment, and denied the fundamental right of a parent to direct the upbringing of his child in violation of the Due Process Clause. The magistrate judge orally denied the constitutional challenge. As a result, Doe made a conditional admission of guilt under the Ordinance and the constitutional challenge was orally certified for appeal to the district court. The district court also orally rejected the constitutional challenge.\\nDoe appealed, raising the same constitutional challenge and seeking reversal of the district court's order. The appeal was assigned to the Court of Appeals. The Court of Appeals reversed the district court, finding that the Ordinance was unconstitutionally overbroad. The Court of Appeals did not reach the other constitutional issues. This Court then granted the State's petition for review.\\nII.\\nIssues on Appeal\\nThe following issues are presented on appeal: (1) whether the Ordinance is unconstitutionally overbroad or void for vagueness; (2) whether the Ordinance denies equal protection of the laws; and (3) whether Doe has standing to assert the alleged violation of his parents' rights to direct his upbringing.\\nIII.\\nA.\\nStandard of Review\\nA petition for review of a decision of the Court of Appeals will only be granted \\\"when there are special and important reasons\\\" for review. Idaho App. R. 118(b). When the Supreme Court reviews a case previously decided by the Court of Appeals, \\\"this Court gives serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court.\\\" In re Doe, 144 Idaho 819, 821, 172 P.3d 1094, 1096 (2007). \\\"On appeal of a decision rendered by a district court while acting in its intermediate appellate capacity, the Court directly reviews the district court's decision.\\\" In re Doe, 147 Idaho 243, 248, 207 P.3d 974, 979 (2009).\\nThis Court freely reviews constitutional questions. Plummer v. City of Fruitland, 139 Idaho 810, 812, 87 P.3d 297, 299 (2004). When determining the constitutionality of a city ordinance, the Court will review the ordinance de novo. Id. A party challenging an ordinance on constitutional grounds bears the burden of establishing the ordinance's unconstitutionality and is required to \\\"overcome a strong presumption of validity.\\\" State v. Korsen, 138 Idaho 706, 711, 69 P.3d 126, 131 (2003). We are obligated to attempt to interpret the ordinance in a manner that upholds its constitutionality. Id.\\nB.\\nOverbreadth and Vagueness\\nDoe argues that his conviction should be reversed because the Ordinance is unconstitutionally overbroad and vague. Doe contends that the Ordinance is overbroad because it prohibits activities that constitute protected speech under the First Amendment without providing an exception for carrying out those activities. Doe points to three portions of the Ordinance he contends are vague: (1) \\\"loiter, idle, wander, stroll, play, or otherwise be upon;\\\" (2) \\\"where the minor is upon an emergency errand or other legitimate business;\\\" and (3) \\\"some form of documentation.\\\" Doe does not argue that these provisions are unconstitutional as applied to him, but instead that the Ordinance is unconstitutional on its face because of the inclusion of the challenged phrases. Doe contends that these are imprecise terms that have not been defined, vesting police officers with virtually unfettered discretion to make arrests under the Ordinance and failing to inform the general public of the conduct made criminal. The State contends that Doe should not succeed in his facial challenge because the Ordinance does not reach a substantial amount of protected conduct and is not unconstitutionally vague in all its applications.\\nIt is a key principle of constitutional law \\\"that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.\\\" Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830, 839-40 (1973). As a result, a litigant need not be prohibited from any constitutionally protected behavior in order to mount a facial challenge to a legislative measure in order to protect the rights of others not before the court. Id. at 612, 93 S.Ct. at 2915-16, 37 L.Ed.2d at 839-40 However, because invalidating an ordinance based on a challenge of one who does not have standing in the traditional sense is \\\"strong medicine,\\\" courts should use care in reviewing facial challenges. Id. at 613, 93 S.Ct. at 2916-17, 37 L.Ed.2d at 840-41.\\nWhere a facial challenge is made to an ordinance on overbreadth and vagueness grounds, a court must first decide whether the ordinance \\\"reaches a substantial amount of constitutionally protected conduct.\\\" Village of Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, 369 (1982). If the ordinance does not reach a substantial amount of protected conduct, then the overbreadth challenge will fail. Id. A court should then examine the ordinance on the facial vagueness challenge. Id. The ordinance will only be found void for vagueness if it is unconstitutionally vague in all its applications. Id. at 494-95, 102 S.Ct. at 1191-92, 71 L.Ed.2d at 368-70. Normally, where the complaining party has engaged in conduct that is clearly prohibited by the ordinance, he cannot argue that the ordinance is vague. Id. Accordingly, given this structure, the overbreadth challenge will be addressed first and then the vagueness challenge.\\n1.\\nOverbreadth\\nDoe argues that the Ordinance is facially overbroad. An ordinance may be facially overbroad if it: (1) seeks to regulate only constitutionally protected speech; (2) impermissibly burdens innocent associations; or (3) places regulations on \\\"the time, place, and manner of expressive or communicative conduct,\\\" particularly where the restriction \\\"delegated] standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights.\\\" Broadrick, 413 U.S. at 612-13, 93 S.Ct. at 2916-17, 37 L.Ed.2d at 840. The review of an ordinance varies depending on the type of conduct prohibited or criminalized by the enactment.\\nIn this case, Doe argues that the Ordinance has incidental effects on expressive conduct and innocent associations rather than directly prohibiting protected speech. \\\"[0]verbreadth scrutiny has generally been somewhat less rigid in the context of statutes regulating conduct in the shadow of the First Amendment rather than pure speech, but doing so in a neutral, noncensorial manner.\\\" Id. at 614, 93 S.Ct. at 2917., 37 L.Ed.2d at 841 Where conduct, as well as speech, is regulated by a statute and the State has a legitimate interest in regulating the conduct in question, there must be a demonstration of real and substantial overbreadth in order for a facial challenge to be successful. Id. at 615, 93 S.Ct. at 2917-18, 37 L.Ed.2d at 841-42. The party arguing overbreadth bears the burden of showing \\\" 'from the text of [the law] and from actual fact,' that substantial overbreadth exists.\\\" Virginia v. Hicks, 539 U.S. 113, 122, 123 S.Ct. 2191, 2198, 156 L.Ed.2d 148, 159 (2003) (quoting New York State Club Ass'n, Inc. v. City of New York, 487 U.S. 1, 14, 108 S.Ct. 2225, 2234, 101 L.Ed.2d 1, 16-17 (1988)). This showing requires a demonstration that the law prohibits a substantial amount of protected activity in relation to the law's legitimate sweep. Id. at 118-19, 123 S.Ct. at 2196, 156 L.Ed.2d at 156-58 (quoting Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918, 37 L.Ed.2d at 841-42). This showing will invalidate the enactment as a whole \\\"until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.\\\" Id. at 119, 123 S.Ct. at 2196, 156 L.Ed.2d at 157 (quoting Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916, 37 L.Ed.2d at 840-41). Overbreadth is not substantial if, despite the fact that some constitutionally protected conduct is proscribed, the statute covers a wide range of conduct that is easily identifiable and within the city's power to prohibit. State v. Korsen, 138 Idaho 706, 714, 69 P.3d 126, 134 (2003). Where an ordinance proscribes protected speech only to some unknown extent, a court cannot justify invalidating the ordinance. Id. at 713, 69 P.3d at 133.\\nIn Korsen, this Court overruled the district court's finding that Idaho Code section 18-7008(8), which creates criminal liability for trespassing when a party refuses to vacate real property after being asked to depart by the owner or the owner's authorized agent, was unconstitutionally overbroad on its face. Id. at 710, 69 P.3d at 130. Korsen was charged with a violation of section 18-7008(8) when he refused to leave the offices of the Idaho Department of Health and Welfare after being asked to do so by the region al director. Id. This Court rejected the district court's analysis because the district court failed to apply a significantly stringent standard. Id. at 715, 69 P.3d at 135. The district court relied on one hypothetical situation, that the trespassing statute could potentially be used to keep citizens from engaging in a dialogue with legislators at the State Capitol, as support for its finding of unconstitutional overbreadth. Id. We found that analysis to be flawed because it did not demonstrate \\\"a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court....\\\" Id. (quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 801-02, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772, 784-85 (1984)). The Court also found fault with the district court's failure to consider the statute's constitutional applications to situations involving private property and those situations in which no protected speech was implicated. Id. The Court noted that these forgotten considerations were exemplified by Korsen's conduct because any constitutionally protected business he had on the premises was at an end well before his refusal to leave and subsequent arrest. Id. at 715-16, 69 P.3d at 135-36. The Korsen opinion indicates that this Court will consider all aspects of the statute and its application in determining whether it is unconstitutionally overbroad on its face. In addition, the Court will construe the terms of the statute in order to determine the scope of protected conduct that might be affected and review U.S. Supreme Court precedent to guide our determination of conduct that might constitutionally be criminalized. State v. Poe, 139 Idaho 885, 892-903, 88 P.3d 704, 711-22 (2004). Similar analysis will be undertaken here.\\nThe Ordinance prohibits a minor from being in public from 11:00 p.m. till 5:00 a.m. unless one of the exceptions to the ordinance is applicable. A minor may be in public during those hours if: (1) he is accompanied by a parent or legal guardian; or (2) the minor is on an \\\"emergency errand or other legitimate business\\\" at the direction of his \\\"parents or legal guardian or custodian or school\\\" and has \\\"some form of documentation as to the business to be performed.\\\" Doe argues that the broad reach and narrow exceptions of the Ordinance prohibit protected conduct including attending religious exercises, town hall meetings, and school events. Accordingly, Doe argues that the Ordinance constitutes an impermissible time, place, and manner restriction on speech.\\n\\\"Regulations that burden speech incidentally or control the time, place, and manner of expression, must be evaluated in terms of their general effect.\\\" United States v. Albertini, 472 U.S. 675, 688-89, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536, 548 (1985). An incidental burden on speech may be justified if \\\"[1] it is within the constitutional power of the Government; [2] it furthers an important or substantial governmental interest; [3] the governmental interest is unrelated to the suppression of free expression; and [4] the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.\\\" United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672, 679-80 (1968). When a government regulation satisfies the O'Brien test, it constitutes a reasonable time, place, and manner restriction and will not be invalidated for its incidental effects on protected conduct. Taxpayers for Vincent, 466 U.S. at 808, 104 S.Ct. at 2130-31, 80 L.Ed.2d at 789. The Ordinance will be analyzed according to the O'Brien test.\\na.\\nThe City of Wendell is empowered to enact ordinances by article XII, section 2 of the Idaho Constitution. Under that provision, \\\"[a]ny county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general law.\\\" Idaho Const. art. XII, \\u00a7 2. This Court has found that there are three general restrictions that must be met by an ordinance enacted under this provision: (1) it must be confined to the territorial limits of the enacting body; (2) it must not conflict with the general laws of the State; and (3) it must not be an unreasonable or arbitrary enactment. Hobbs v. Abrams, 104 Idaho 205, 207, 657 P.2d 1073, 1075 (1983).\\nIn this case, Doe does not argue, nor does-the Ordinance indicate, that it extends beyond the territorial limits of the City of Wendell. In fact, the plain language of the Ordinance provides that it is only in effect in the city. In addition, Doe has pointed to no other laws of the State of Idaho that conflict with the Ordinance. In fact, juvenile curfew ordinances are specifically contemplated by legislative enactment. Idaho Code section 32-1301 empowers municipalities to impose criminal sanctions on parents for failure to supervise their children. I.C. \\u00a7 32-1301. Section 32-1301(2)(e) provides that a parent automatically commits the offense of failure to supervise a child under sixteen if that child violates a curfew ordinance enacted under local law. I.C. \\u00a7 32-1301. This provision indicates that the City of Wendell not only has the power to enact curfew ordinances, but is expected to do so by the Legislature.\\nDoe has in fact recognized that municipalities have a legitimate interest in enacting a juvenile curfew ordinance in order to promote the safety and welfare of their citizens and prevent juvenile criminal activity and victimization. Doe's challenge to the Ordinance is focused on the fact that it does not provide exceptions for protected conduct that may fall within its ambit. This, without more, is insufficient to show that the Ordinance is unreasonable or arbitrary. As such, the Ordinance is a valid enactment within the power of the City of Wendell, meeting the first prong of the O'Brien test.\\nb.\\nMunicipalities have a substantial interest in preventing juvenile crime and victimization. See, e.g., Nunez ex rel. Nunez v. City of San Diego, 114 F.3d 935, 947 (9th Cir.1997); State v. J.P., 907 So.2d 1101, 1118 (Fla.2004). There has been no showing that the Ordinance does not further those interests. Also, as pointed out in Doe's brief, the U.S. Supreme Court has recognized that the physical and psychological well-being of minors is a compelling government interest. See Sable Commc'ns v. Fed. Commc'ns Comm'n, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836-37, 106 L.Ed.2d 93, 105 (1989). While the stated purpose of the Ordinance is not specific to these particular interests, such interests are encompassed within its stated purpose, which is to promote the welfare and safety of the public. There is no requirement that a substantial interest sufficient to support the constitutionality or validity of an ordinance must appear on the face of the enactment. Consequently, the Ordinance serves a substantial government interest.\\nc.\\nA ban on the means of expression is not a suppression of the expression itself for the purpose of the O'Brien standard. City of Erie v. Pap's A.M., 529 U.S. 277, 292, 120 S.Ct. 1382, 1392-93, 146 L.Ed.2d 265, 280 (2000). In Pap's A.M., the U.S. Supreme Court found that a ban on public nudity, even though likely directed at nude dancing, had a valid, content-neutral purpose in prohibiting the secondary effects of nude dancing. Id. at 291, 120 S.Ct. at 1392, 146 L.Ed.2d at 279-80 The purpose was content neutral, despite the fact that nude dancing is a protected form of expression. Id. The Court found that the ban was not directed at expression because it banned all public nudity, not simply nude dancing. Id.\\nAlthough the Ordinance is quite different from the nudity ban in Pap's A.M., the rationale behind them is the same. The Ordinance bans all juveniles from being in public between the hours of 11:00 p.m. to 5:00 a.m., unless they fall within one of the exceptions to the statute. While this curfew may have the practical effect of preventing certain forms of expression during curfew hours, the Ordinance, much like the ban in Pap's AM., cannot be said to directly target that expression because it is targeted at all juvenile activity, both protected and nonprotected. As such, the government interest in keeping juveniles off the streets is likewise unrelated to the suppression of expression.\\nd.\\nWhere a restriction incidentally impacts protected conduct rather than speech, and the restriction is content neutral, there is no requirement that the restriction be enacted through the least restrictive means. Id. at 301-02, 120 S.Ct. at 1397-98, 146 L.Ed.2d at 285-87. However, the restriction must be no greater than necessary to carry out the governmental interest. Id. at 301, 120 S.Ct. at 1397, 146 L.Ed.2d at 285-86. In conducting the subjective inquiry into whether the Ordinance meets that requirement, it is instructive to view other cases where the U.S. Supreme Court has applied the O'Brien test, as well as cases from other jurisdictions where the test has been applied to curfew ordinances similar to the one in this case.\\nIn Pap's A.M., the Court found that the ban on appearing nude in public was no greater than necessary to carry out the city's interest in preventing the harmful secondary effects of public nudity because it only regulated conduct and had a de minimis effect on the dancers' ability to convey their erotic message because they were still allowed to dance in minimal attire. Id. at 301, 120 S.Ct. at 1397, 146 L.Ed.2d at 285-86. A similar result was reached in Grayned v. City of Rockford, where the Court upheld a city anti-noise ordinance that prohibited a person from willfully making a noise or diversion that disturbs or tends to disturb the peace or good order of the school session while on grounds adjacent to a building in which a school was in session. 408 U.S. 104, 110-12, 92 S.Ct. 2294, 2300-01, 33 L.Ed.2d 222, 228-30 (1972). The Court's holding was based on the city's important interest in preventing the disruption of school activities. Id. at 118-19, 92 S.Ct. at 2304-05, 33 L.Ed.2d at 233-34. The Court found that even though the ordinance prohibited speech, it only prohibited speech necessary to preserve the integrity of the educational environment by limiting the prohibition to \\\"conduct which disrupts or is about to disrupt normal school activities.\\\" Id. at 119, 92 S.Ct. at 2305, 33 L.Ed.2d at 234. The same result was reached in Clark v. Community for Creative Non-Violence, where the Court found that the incidental impact of a public park's overnight sleeping ban on a planned demonstration did not render the statute overbroad. 468 U.S. 288, 296-97, 104 S.Ct. 3065, 3070-71, 82 L.Ed.2d 221, 228-30 (1984) (\\\"It is also apparent to us that the regulation narrowly focuses on the Government's substantial interest in maintaining the parks.... The sleeping ban, if enforced, would thus effectively limit the nature, extent, and duration of the demonstration and to that extent ease the pressure on the parks.... [I]t is evident from our cases that the validity of this regulation need not be judged solely by reference to the demonstration at hand.\\\").\\nThe Supreme Court invalidated a local ordinance regulating the screening of drive-in movies on overbreadth grounds in Erznoznik v. City of Jacksonville. 422 U.S. 205, 213, 95 S.Ct. 2268, 2274-75, 45 L.Ed.2d 125, 133 (1975). In that case, a local ordinance banned the screening of drive-in movies within view of a public street or area if the movie contained nudity. Id. at 206-07, 95 S.Ct. at 2271-72, 45 L.Ed.2d at 129-30. The stated interest behind the ordinance was to protect minors from public displays of nudity. Id. at 207, 95 S.Ct. at 2271-72, 45 L.Ed.2d at 129-30. The Court found the ordinance was not limited to that interest because it prohibited the display of all nudity and not simply sexually explicit or obscene nudity and noted that the First Amendment did not allow the limitation of information to minors in that manner. Id. at 213, 95 S.Ct. at 2274-75, 45 L.Ed.2d at 133. Apart from Erznoznik, however, it is difficult to find cases where the Court has invalidated statutes and ordinances that do not have speech-content regulation as their purpose. This is explained by the Court's statements in Texas v. Johnson concerning the \\\"relatively lenient\\\" or \\\"less demanding\\\" standards of review under the O'Brien test. 491 U.S. 397, 407, 109 S.Ct. 2533, 2541, 105 L.Ed.2d 342, 355-56 (1989). Consequently, given this statement, it appears that the Ordinance must be substantially far afield from its stated purpose in order to be invalid under O'Brien.\\nThe Fifth Circuit Court of Appeals invalidated a curfew ordinance on overbreadth grounds in Johnson v. City of Opelousas. 658 F.2d 1065, 1071-74 (5th Cir.1981). In that case, an ordinance substantially similar to the ordinance at issue here was declared unconstitutionally overbroad because the ordinance had a substantial effect on a number of constitutionally protected activities. ' Id. However, a few characteristics of Johnson should be noted, to determine its persuasive authority. First, although similar, the ordinance in Johnson did not allow parents or other child custodians to authorize a child's presence in public after hours with a permission slip or some similar documentation. Id. at 1071. Second, the court in Johnson used some amalgam of the O'Brien test, neither specifically analyzing all of its factors nor focusing on the state's interest in enforcing the ordinance. Id. at 1071-74. Finally, the court impermissibly considered the right to interstate travel as part of the overbreadth balancing, even though overbreadth is limited to speech concerns. Id.\\nSimilar infirmities are presented by the analysis in Nunez. In that case, the Ninth Circuit found a San Diego juvenile curfew ordinance invalid on several grounds, including overbreadth. 114 F.3d at 949-51. The ordinance was also similar to the one at issue here, the key difference being the \\\"legitimate business\\\" exception of the Ordinance, which was not included in the San Diego ordinance. Id. at 938. Further, although the Ninth Circuit articulates the factors of the O'Brien test, it does not apply O'Brien. Id. at 949-51. The court simply declares the ordinance unconstitutionally overbroad because of its findings that the ordinance restricts any and all access to a public forum. Id. at 951. In fact, it seems that the Ninth Circuit's finding of overbreadth is based on a finding that the ordinance was directed at expression rather than having an incidental effect on expression that is broader than necessary in order to carry out the governmental interest in question. See id. (\\\"[T]he San Diego ordinance 'is directed narrowly and specifically at expression or conduct commonly associated with expression.' \\\"). This finding seems contradictory to the obvious and stated purpose of such an ordinance, to keep children off the street at night for their own well-being and for the health and safety of the populous at large. There is no indication from the evidence considered in the Nunez opinion that the San Diego City Council had the prevention of juvenile speech in mind when it enacted its ordinance. Accordingly, the Nunez opinion is of questionable persuasive value, despite Doe's extensive reliance on it.\\nThe Ordinance does not reach an amount of conduct that is greater than necessary to further the.City of Wendell's interests. As noted above, the City of Wendell has an interest in the physical and psychological well-being of minors, which is a compelling government interest, and the Ordinance appears to further that interest. Further, the City has a compelling interest in ensuring the health and safety of its citizens. The Ordinance, as opposed to those presented in Nunez and Johnson, contains a provision allowing a child to be in public without the presence of a parent or custodian so long as the child has some form of documented authorization. Doe has not shown that this authorization would not allow children to assert their First Amendment rights. Doe has also failed to show that the Ordinance would reach constitutionally protected conduct in a substantial portion of the cases where it would apply. In many instances, a juvenile cited under the Ordinance, like Doe, would be out looking for \\u00e1 party or engaging in some other nonprotected activity, which is clearly prohibited.\\nFurthermore, although Doe argues that the Ordinance must have a First Amendment exception, given the U.S. Supreme Court's statements concerning the laxity of the O'Brien test, the Ordinance does not have to be enacted through the least restrictive means necessary to further the compelling governmental interest. Although an ordinance may prohibit some forms of First Amendment expression, that prohibition is insufficient to render it unconstitutionally overbroad. The Ordinance seeks to keep children off the streets during the late hours of the night, presumably to allow increased parental supervision and to prevent juvenile crime and other dangers the juvenile may encounter. Allowing too many exceptions to the Ordinance, even though allowing greater freedom to exercise protected rights, would potentially undermine the purpose of the Ordinance. Accordingly, the Ordinance is not overbroad in relation to the interest it furthers.\\nIn addition, the Ordinance vests parents with the right to control whether their children engage in protected conduct through the authorized legitimate business or emergency errand exception. The exception allows a parent to authorize a child to engage in virtually any legal activity, so long as the authorization is documented in some form. As such, the limitation on conduct largely comes from the parent rather than a state actor, meaning that any burden on protected rights are derived from an unchallengeable source. Finally, Doe's arguments for over-breadth are largely based on a few hypotheticals without any actual showing of infringement of rights or the danger of infringement of rights. As this Court noted in Korsen, showing some hypothetical situation where First Amendment rights could be infringed is insufficient support for an overbreadth argument. As such, we find that the Ordinance does not impact more conduct than necessary to carry out its purpose.\\ne.\\nBecause the Ordinance satisfies all prongs of the O'Brien test, it is a reasonable time, place, and manner restriction under Pap's AM. In addition, Doe has failed to show that it impacts a substantial amount of protected conduct. As a result, we find that the Ordinance is not unconstitutionally overbroad.\\n2.\\nVagueness\\nIn order to comply with due process, a criminal statute must define behavior that constitutes a violation of that statute \\\"with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.\\\" Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983). Another concern articulated by the Supreme Court is that \\\"where a vague statute 'abut(s) upon sensitive areas of basic First Amendment freedoms,\\\"' it may chill the exercise of constitutionally protected activity. Grayned, 408 U.S. at 109, 92 S.Ct. at 2299, 33 L.Ed.2d at 228 (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377, 385 (1964)). The Court has recognized that the more important concern is the provision of concrete guidelines to police officers and prosecutors in order to avoid arbitrary and discriminatory enforce ment of penal laws. Id. The Court notes that \\\"lawmaking [should not be entrusted] 'to the moment-to-moment judgment of the policeman on his beat.' \\\" Kolender, 461 U.S. at 360, 103 S.Ct. at 1860, 75 L.Ed.2d at 911 (quoting Smith v. Goguen, 415 U.S. 566, 575, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605, 613 (1974)). Where it is clear what an ordinance prohibits, \\\"mathematical certainty\\\" or \\\"meticulous specificity\\\" of language is not required, allowing for \\\"flexibility and reasonable breadth.\\\" Grayned, 408 U.S. at 110, 92 S.Ct. at 2300, 33 L.Ed.2d at 228-29.\\nTo succeed on a facial vagueness challenge, the challenged ordinance must be shown to be \\\"impermissibly vague in all its applications.\\\" Hoffman Estates, 455 U.S. at 497, 102 S.Ct. at 1193, 71 L.Ed.2d at 371. If the law interferes with the rights of speech or association, a more stringent vagueness test should be applied. Id. at 499, 102 S.Ct. at 1193-94, 71 L.Ed.2d at 372. The test for vagueness is also more stringent in a case where criminal sanctions are imposed for violation of the ordinance. Id. at 500, 102 S.Ct. at 1194, 71 L.Ed.2d at 372-73. We previously adopted a similar standard in Korsen, noting that \\\"in a facial challenge to a legislative enactment [on vagueness grounds], 'the challenger must establish that no set of circumstances exists under which the Act would be valid.' \\\" 138 Idaho at 712, 69 P.3d at 132 (quoting Salerno, 481 U.S. at 745, 107 S.Ct. at 2100, 95 L.Ed.2d at 707-08).\\nDoe argues that the U.S. Supreme Court's decision in Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), is controlling because the Court found language similar to that used in the Ordinance to be unconstitutionally vague. Papachristou and other similar cases are distinguishable from the case at bar. The ordinance in Papach\\u00f1stou was based upon a class of old English vagrancy ordinances that criminalized activities such as \\\"wandering or strolling around from place to place without any lawful purpose or object.\\\" Id. at 158, 92 S.Ct. at 841, 31 L.Ed.2d at 112. The Court declared the statute invalid because, based on the huge class of undefined offenses and classes of persons subject to arrest under the statute, it allowed the police virtually unfettered discretion to arrest anyone in any situation. Id. at 170, 92 S.Ct. at 847-48, 31 L.Ed.2d at 119-20. The Court noted \\\"[i]t would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.\\\" Id. at 165, 92 S.Ct. at 845, 31 L.Ed.2d at 117 (quoting United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563, 565-66 (1875)).\\nThe Court reached a similar result in Kolender, where it invalidated a California loitering statute. 461 U.S. at 353, 103 S.Ct. at 1856, 75 L.Ed.2d at 906. In that case, the statute provided that anyone \\\"who loiters or wanders upon the streets or from place to place without apparent reason . and who refuses to identify himself . when requested by any peace officer to do so, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification,\\\" may be arrested. Id. at 354, 103 S.Ct. at 1856, 75 L.Ed.2d at 906. The statute was subject to a-limiting construction by the California Court of Appeals, which noted that identification meant that an individual had to provide '\\\"credible and reliable' identification when requested by a police officer who has reasonable suspicion of criminal activity sufficient to justify a Terry detention.\\\" Id. at 356, 103 S.Ct. at 1857, 75 L.Ed.2d at 908. Despite the limiting construction, the Court found that the identification requirement vested the police with virtually unfettered discretion because the statute did not inform the ordinary citizen what constituted \\\"credible and reliable identification.\\\" Id. at 358, 103 S.Ct. at 1858-59, 75 L.Ed.2d at 909. This holding was based, in part, on a finding that a suspect violated the statute unless the questioning officer determined that the identification was reliable. Id. at 360, 103 S.Ct. at 1859-60, 75 L.Ed.2d at 910.\\nThe question presented in this case is much closer than that in either Papachristou or Kolender. Doe points to three portions of the Ordinance that he contends are vague; the language: (1) \\\"loiter, idle, wander, stroll, play, or otherwise be upon;\\\" (2) \\\"where the minor is upon an emergency errand or other legitimate business;\\\" and (3) \\\"some form of documentation.\\\" The first challenged phrase, although using archaic language similar to that struck down in Papachristou, plainly prohibits a specified class of conduct when taken in context. The first phrase, when read as a whole, provides:\\nIt shall be unlawful for any minor person under the age of eighteen (18) to loiter, idle, wander, stroll, play, or otherwise be upon the public streets, highways, roads, sidewalks, alleys, parks, playgrounds, or other public grounds, or public places, buildings, or other property generally open to public use, or vacant lots within the City of Wendell, between the hours of 11:00 o'clock p.m. and 5:00 o'clock a.m.\\nWhile there is no argument that much of the language used in the Ordinance is redundant, unnecessary, and potentially confusing, the intent of the Ordinance and what is prohibited by this section are clear \\u2014 no minor is to be in a public place within the City of Wendell between the hours of 11:00 p.m. and 5:00 a.m. Consequently, there are no discretionary calls to be made by an officer in this context, nor does it appear that a reasonable person would not know what conduct is prohibited by the Ordinance. This is contrast to Papachristou and Kolender where the scope of the prohibition was subject to question.\\nDoe also relies on the Ninth Circuit's determination that the language \\\"loiter, idle, wander, stroll, or play\\\" in a curfew statute was unconstitutionally vague. Nunez, 114 F.3d at 938, 940-43. This reliance is misplaced because the Wendell ordinance also contains the phrase \\\"or otherwise be upon,\\\" indicating that no public presence is allowed no matter what activity is undertaken during the specified time period. This conclusion is supported by the Ninth Circuit's finding that the language was vague because it meant something other than mere presence \\u2014 exactly what is proscribed by the Ordinance. Id. This finding is also in line with this Court's duty to produce a reasonable construction of a statute or ordinance that renders it constitutionally definite. Korsen, 138 Idaho at 711, 69 P.3d at 131. Accordingly, we find that the \\\"loiter, idle, wander, stroll, play, or otherwise be upon\\\" language is not unconstitutionally vague.\\nThe determination of whether the \\\"where the minor is upon an emergency errand or other legitimate business\\\" and \\\"some form of documentation\\\" provisions are vague is a closer question. In order to determine whether these provisions are vague, this Court will first look to the plain meaning of each. Because the other two challenged provisions are part of the same clause, they should be construed together. \\\"Emergency\\\" is defined as \\\"an unforeseen combination of circumstances or the resulting state that calls for immediate action, . a pressing need.\\\" Webster's Third New International Dictionary 741 (Philip Babcock Gove et al. eds., 1966). \\\"Errand\\\" is defined as \\\"a trip made in order to deliver a message or purchase or attend to something,\\\" \\\"the object or purpose of a short trip,\\\" or \\\"a service, favor, or piece of business undertaken for another.\\\" Id. at 772. \\\"Legitimate\\\" is defined as \\\"following in logical sequence: reasonable.\\\" Id. at 1291. Finally, \\\"business\\\" in this context is defined as \\\"an activity engaged in toward an immediate specific end .: task, chore, mission, assignment.\\\" Id. at 302. While there are multiple definitions for each of the above terms, it is the province of this Court, where possible, to apply a reasonable limiting construction to legislative measures in order to avoid facial uneonstitutionality. See Hicks, 539 U.S. at 119, 123 S.Ct. at 2196-97, 156 L.Ed.2d at 157-58.\\nThe challenged provision as a whole provides:\\nThe provisions of this section do not apply . where the minor is upon an emergency errand or other legitimate business directed by his or her parents or legal guardian or custodian or school, having in their possession some form of documentation as to the business to be performed.\\nAs evidenced by the definitions above, \\\"emergency errand\\\" appears to mean a trip made to attend to something that arose unexpectedly and which calls for immediate action. The use of the term \\\"emergency\\\" indicates that this is not simply a benign trip to the corner store, but something akin to seeking medical attention for a sudden injury. Further, the phrase \\\"legitimate business\\\" appears to mean any reasonable activity authorized by a parent, guardian, custodian, or school under the circumstances. In addition, because both emergency errands and legitimate business require parental authorization, together they form a class of conduct that essentially authorizes a minor to engage in any legal activity, so long as it is authorized by one of the authorities in the ordinance. Thus, we find that if the minor is in possession of documentation from one of the specified authorities and is engaged in the activity permitted by that document, he or she is engaged in legitimate business or an emergency errand. The documentation must simply reflect that it was issued by one of the authorized authorities and actually authorizes the activity undertaken by the juvenile.\\nFurthermore, given the fact that the Ordinance clearly provides that minors are not to be in public between the hours of 11:00 p.m. and 5:00 a.m. unless they come within one of the exceptions, Doe engaged in clearly proscribed conduct. As such, much like the defendant in Korsen, where the arrest itself was the result of clearly proscribed behavior, Doe's facial challenge must fail; thus, we find the Ordinance sufficiently definite in its terms to survive Doe's vagueness challenge.\\nC.\\nDoe's \\\"Equal Protection\\\" Claim\\nDoe argues that the ordinance is unconstitutional because it denies him equal protection of the laws in violation of the Fourteenth Amendment; however, his basis for this claim is unclear. Doe's apparent justification for this challenge is based on its restriction of a minor's right of free movement. This theory appears to be drawn from the Nunez case, where the Ninth Circuit found that because age was not a suspect classification, the only way strict scrutiny review could apply would be through infringement on the fundamental right of free movement. 114 F.3d at 944. While this is true, it is incorrect to label this analysis as an equal protection analysis. Instead, the issue should be approached as a substantive due process issue because it involves the potential denial of fundamental rights.\\nThe Due Process Clause provides heightened protection against government interference with fundamental rights and liber ties. Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 2267-68, 138 L.Ed.2d 772, 787 (1997). In addition to the freedoms explicitly protected by the Bill of Rights, the U.S. Supreme Court has recognized that other rights may be fundamental and subject to heightened scrutiny. Id. In order to determine whether a right is fundamental, a two-step analysis is undertaken. Id. First, the right must be shown objectively to \\\" 'be deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed,' \\\" Id. at 720-21, 117 S.Ct. at 2268, 138 L.Ed.2d at 787-88 (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1937-38, 52 L.Ed.2d 531, 539-40 (1977); Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 151-52, 82 L.Ed. 288, 292 (1937)). \\\"Second, [the Court has] required, in substantive-due-process cases, a 'careful description' of the asserted fundamental liberty interest.\\\" Id. In determining whether a right is fundamental, \\\"[o]ur Nation's history, legal traditions, and practices thus provide the crucial 'guideposts for responsible decision-making.'\\\" Id. (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261, 273 (1992)).\\nThe Ninth Circuit based its finding of a fundamental right to travel on a few lines in the U.S. Supreme Court's opinion in Papachristou, in which the Court stated: \\\"[T]hese activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity.\\\" 405 U.S. at 164, 92 S.Ct. at 844, 31 L.Ed.2d at 116-17; Nunez, 114 F.3d at 944. By \\\"these activities,\\\" the Court was referring to walking, strolling, idling, wandering, or loafing, from which the Ninth Circuit concluded there was a fundamental right to freedom of movement. The only other context where the Court has examined movement as a fundamental right is in the context of travel. See Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600, 612 (1969) (\\\"Our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.\\\").\\nThe Supreme Court has refused to draw a distinction between intrastate and interstate travel. See Mem'l Hosp. v. Maricopa County, 415 U.S. 250, 255-56, 94 S.Ct. 1076, 1081, 39 L.Ed.2d 306, 313-14 (1974) (\\\"Even were we to draw a constitutional distinction between interstate and intrastate travel, a question we do not now consider____\\\"). The Memorial Hospital statement seems to be a departure from the Court's earlier position in United States v. Wheeler, in which the Court stated:\\nIn all the states, from the beginning down to the adoption of the Articles of Confederation the citizens thereof possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom, with a consequent authority in the States to forbid and punish violations of this fundamental right.\\n254 U.S. 281, 293, 41 S.Ct. 133, 134, 65 L.Ed. 270, 273 (1920). However, the Wheeler decision was later limited to its facts in United States v. Guest, 383 U.S. 745, 759 n. 16, 86 S.Ct. 1170, 1179 n. 16, 16 L.Ed.2d 239, 250 n. 16 (1966). Further, language in Jones v. Helms recognizes the power of the State to limit travel, directly contradicting Wheeler. 452 U.S. 412, 419, 101 S.Ct. 2434, 2440, 69 L.Ed.2d 118, 125 (1981) (\\\"The right of the citizen to migrate from state to state which, . is shown by our precedents to be one of national citizenship, is not, however, an unlimited one. In addition to being subject to all constitutional limitations imposed by the federal government, such citizen is subject to some control by state governments.\\\") (quoting Edwards v. California, 314 U.S. 160, 184, 62 S.Ct. 164, 172, 86 L.Ed. 119, 131 (1941) (Jackson, J., concurring)). Consequently, although the Ninth Circuit assumes that all freedom of movement is a fundamental right, there may in fact be a difference in the treatment of different types of movement, depending on their nature. The issue is far from clear.\\nFurther, even if movement is a fundamental right, the scope of protection of the rights afforded to juveniles is not always coextensive with the protection afforded the rights of adults. For example, in Scholl v. Martin, the Supreme Court noted that \\\"[t]he State has 'a parens patriae interest in preserving and promoting the welfare of the child.' \\\" 467 U.S. 253, 263, 104 S.Ct. 2403, 2409, 81 L.Ed.2d 207, 216 (1984) (quoting Santosky v. Kramer, 455 U.S. 745, 766, 102 S.Ct. 1388, 1401, 71 L.Ed.2d 599, 615 (1982)). As a result of this interest, \\\"although children generally are protected by the same constitutional guarantees against governmental deprivations as are adults, the State is entitled to adjust its legal system to account for children's vulnerability and their needs for 'concern, . sympathy, and . paternal attention.' \\\" Bellotti, 443 U.S. at 635, 99 S.Ct. at 3044, 61 L.Ed.2d at 808 (quoting McKeiver v. Pennsylvania, 403 U.S. 528, 550, 91 S.Ct. 1976, 1989, 29 L.Ed.2d 647, 663-64 (1966) (plurality opinion)). In addition, \\\"[s]tates validly may limit the freedom of children to choose for themselves in the making of important, affirmative choices with potentially serious consequences . [because] minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.\\\" Id. It is common for states to vindicate this interest by requiring parental consent before minors may engage in activities that could be detrimental to them. Id. at 637, 99 S.Ct. at 3045, 61 L.Ed.2d at 809-10. Bellotti is a prime example of this interest, as it holds that the fundamental right to control one's own procreative activities was outweighed by the State's interest in protecting minor's from potentially detrimental action, resulting in a finding that a parental notice requirement for abortions was constitutional. Id. at 649, 99 S.Ct. at 3051, 61 L.Ed.2d at 817.\\nInformed by the nature of the right at issue and the treatment of that right when exercised by a minor, this Court must determine whether infringement of the right of movement by the Ordinance is sufficiently justified by the City of Wendell's interest in enacting a juvenile curfew ordinance. Assuming arguendo that the right to all forms of travel is a fundamental right, the Ordinance should be subjected to strict scrutiny. \\\"Unquestionably . a government practice or statute which restricts 'fundamental rights' . is to be subjected to 'strict scrutiny' and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available.\\\" Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 357, 98 S.Ct. 2733, 2782, 57 L.Ed.2d 750, 813 (1979). However, because the Ordinance is targeted at juveniles, the principles articulated above concerning the State's interest in the protection of children must also be considered.\\nDoe has recognized, as have courts that have dealt with juvenile curfews, that municipalities have a substantial interest in preventing juvenile crime and victimization, along with preserving the health and safety of their citizens. See, e.g., Nunez, 114 F.3d at 947. Also, as pointed out in Doe's brief, the U.S. Supreme Court has recognized that the physical and psychological well-being of minors is a compelling government interest. See Sable Commc'ns, 492 U.S. at 126, 109 S.Ct. at 2836-37, 106 L.Ed.2d at 105. Consequently, there is no serious doubt that the government has a compelling interest; instead, Doe argues that the Ordinance is not the least restrictive means of carrying out that interest. As indicated by Maricopa County, Jones, and Wheeler, the U.S. Supreme Court has not clearly defined the contours of the right to travel other than finding that there is a right to interstate travel. Since the Court has not clearly articulated a right to intrastate travel, the possible impact of the Ordinance on intrastate movement cannot be said to violate the narrow-tailoring requirement. Further, given the substantial State interest in preventing juveniles from making decisions that could be detrimental to their growth and development, the breadth of the Ordinance is the most effective means of effectively protecting juveniles. The Ordinance already allows parents to exempt their children from the Ordinance when they determine that the children have legitimate business during curfew hours. This is consistent with the Bellotti recognition that the State may work together with parents in order to protect children from harm. Accordingly, we find that the Ordinance is enacted through the least restrictive means necessary to vindicate the government interest at issue. As a result, the Ordinance does not result in the deprivation of a fundamental right.\\nD.\\nStanding to Assert a Parental Liberty Interest\\nDoe also argues that the curfew statute is unconstitutional because it infringes on parents' liberty interest in directing the upbringing of their children. However, Doe's challenge, based on his parents' liberty interest in controlling his upbringing, must be dismissed for lack of standing. Standing is an issue over which this court exercises free review. Citibank (South Dakota), N.A. v. Carroll, 148 Idaho 254, 257, 220 P.3d 1073, 1076 (2009). The issue of whether a party has standing to assert a particular claim should be resolved before the merits of the claim are reached. Id. at 259, 220 P.3d at 1078.\\nCourts must hesitate before resolving the rights of those not parties to litigation. Singleton v. Wulff, 428 U.S. 106, 113, 96 S.Ct. 2868, 2873-74, 49 L.Ed.2d 826, 832-33 (1976). Even though a potentially illegal action may affect the litigant as well as a third party, the litigant may not rest his claims on the rights or legal interests of the third party. Dep't of Labor v. Triplett, 494 U.S. 715, 720, 110 S.Ct. 1428, 1431-32, 108 L.Ed.2d 701, 713 (1990). A party challenging the constitutionality of a statute must not only demonstrate some injury from the unconstitutional aspect of the statute, but also that he is in the class of persons protected by that constitutional interest. Heald v. Dist. of Columbia, 259 U.S. 114, 123, 42 S.Ct. 434, 435, 66 L.Ed. 852, 854-55 (1922). This requirement is based on the presumption that the third parties themselves are the best proponents of their own rights. Singleton, 428 U.S. at 113-14, 96 S.Ct. at 2873-74, 49 L.Ed.2d at 832-33.\\nAs a result, the U.S. Supreme Court requires a litigant who seeks to assert the rights of another party to demonstrate three interrelated criteria: (1) he must have suffered injury in fact, providing a significantly concrete interest in the outcome of the matter in dispute; (2) he must have a sufficiently close relationship to the party whose rights he is asserting; and (3) there must be a demonstrated bar to the third parties' ability to protect their interests. Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 1370-71, 113 L.Ed.2d 411, 425-26 (1991). While these factors have never been applied by a majority of the U.S. Supreme Court to a child's attempt to assert his living parents' interests, they were applied by Justice O'Connor in her concurrence in Miller v. Albright. 523 U.S. 420, 445-52, 118 S.Ct. 1428, 1442-46, 140 L.Ed.2d 575, 596-601 (1998) (O'Connor, J., concurring).\\nIn Miller, the Court considered a constitutional challenge to a statute governing the citizenship of nonmarital children born outside of the United States. Id. at 424, 118 S.Ct. at 1432, 140 L.Ed.2d at 583-84 (majority opinion). One basis for the challenge was that the statute violated Miller's father's right to equal protection of the law. Id. Justice O'Connor, concurring in the Court's finding that the challenge was without merit, engaged in an extensive discussion of a child's right to assert the rights of her parent when there was no bar to the parent's involvement in the case at bar or a similar suit. Id. at 445-52, 118 S.Ct. at 1442-46, 140 L.Ed.2d at 596-601 (O'Connor, J., concurring). O'Connor applied the Powers test to Miller, finding that she met the interest prong because she was denied citizenship under the statute. Id. at 447, 118 S.Ct. at 1443, 140 L.Ed.2d at 597-98. O'Connor also found that Miller met the relationship prong, based on the parent-child relationship. Id. However, O'Connor found that Miller lacked third-party standing because she failed to demonstrate any bar to her father's ability to assert his own rights. Id. at 448, 118 S.Ct. at 1443-44, 140 L.Ed.2d at 598.\\nMuch the same issue is presented in this case. While Doe obviously has an interest in the Ordinance being declared unconstitutional because he will avoid criminal sanctions and has a close relationship with his father, he has failed to demonstrate any bar to his father's ability to challenge the constitutionality of the Ordinance. As a result, Doe has failed the Powers test and, under the O'Con-nor rationale from Millet and Powers, cannot assert a deprivation of parental liberty interests in this matter.\\nIY.\\nBecause Doe has failed to demonstrate that Wendell City Ordinance No. 442 is facially unconstitutional, the decision of the district court is affirmed.\\nJustices BURDICK, W. JONES, and HORTON, and Justice Pro Tem TROUT concur.\\n. Doe also asserted that the Ordinance violated similar provisions of the Idaho Constitution. However, Doe has made no showing or any compelling argument concerning how the standards applied by the Idaho Constitution would be applied any differently than those of the U.S. Constitution. In absence of such a showing, this Court normally applies federal constitutional standards. See State v. Radford, 134 Idaho 187, 190, 998 P.2d 80, 83 (2000). Accordingly, all issues will be addressed under the U.S. Constitution only.\\n. In State v. Poe, the Court, in a 3-2 split, found a statute to be overbroad. Id. The Court found Idaho Code section 18-6409 unconstitutionally overbroad on its face and applied a limiting construction in order to remedy the overbreadth, striking section 18-6409(3) from the statute. Id. at 902, 88 P.3d at 721. However, Poe differs from this case because the challenged portion of Idaho Code section 18-6409 dealt only with spoken words, meaning that it could be found constitutionally invalid if it applied to speech protected by the First Amendment, a lower standard than that required for expressive conduct statutes. Id. at 892, 88 P.3d at 711.\\n. One of the stated purposes of the Ordinance is \\\"to provide order and promote the safety and welfare of the residents of the City of Wendell, Idaho.\\\"\\n. The holding of Clark also disposes of one of the elements of time, place, and manner review, not dealt with by O'Brien, which is a requirement that the regulation leave open alternative channels of communication. Doe argues that, because the Ordinance prohibits all juvenile speech for one-quarter of the day, it fails to meet this requirement. This argument is foreclosed by the rationale of Clark in which the Court found a complete nighttime ban on conduct, which prohibited expressive conduct, left open alternative channels of communication. Id. at 293, 104 S.Ct. at 3068-69, 82 L.Ed.2d at 226-27.\\n. The Court makes similar comments about the review of time, place, and manner restrictions, noting that the tests are essentially one and the same. Id.\\n. This limitation was recognized by the Ninth Circuit in Nunez. 114 F.3d at 949 n. 11 (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697, 707-08 (1987)).\\n.The U.S. Supreme Court has also noted that where the following three factors are in play, the analysis of the constitutional rights of minors may not be as stringent as the analysis of the constitutional rights of adults. Bellotti v. Baird, 443 U.S. 622, 634, 99 S.Ct. 3035, 3043, 61 L.Ed.2d 797, 807-08 (1979). The factors include: (1) the peculiar vulnerability of children; (2) their inability to make critical decisions in an informed, mature manner; and (3) the importance of the parental role in child rearing. Id.\\n. The Korsen standard, although adopted from Hoffman Estates, seems directly contradictory to the statement in Hoffman Estates that a facial challenge cannot succeed where the party bringing the challenge engaged in conduct clearly proscribed by the ordinance. 455 U.S. at 494-95, 102 S.Ct. at 1191-92, 71 L.Ed.2d at 368-70. Construing the two statements together, a facial challenge could never succeed where the party bringing the challenge has been charged under the statute and cannot make an as applied challenge. Under that standard, no facial challenge could succeed in this case.\\n. In holding that the trespassing statute in Korsen was not unconstitutionally vague, this Court noted:\\nThe statute makes no distinction between private and public property. Furthermore, the statute informs the public of the prohibited conduct, that is, remaining willfully on property belonging to another after having been asked to leave. Therefore, the statute gives fair notice of the conduct that is made criminal by the statute. Similarly, the core of circumstances to which the trespassing provision unquestionably applies is the willful refusal to leave the premises after having been asked to do so by one in authority. The statute does not allow for unbridled discretion in police enforcement. Indeed, the police have no discretion when enforcing the statute on any type of property; any person who refuses to leave after receiving a warning is subject to arrest.\\nId. at 713, 69 P.3d at 133.\\n.The ordinance at issue in Papachristou read as follows:\\nRogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.\\nId.\\n. In making this argument, Doe overlooks the fact that the Ordinance vests the parents with broad authority to exempt their children from its coverage.\\n. Children were found to have third-party standing to represent the rights of their deceased parents in Hodel v. Irving, 481 U.S. 704, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987); however, unlike the parties in the present case or those in Miller, being deceased provides a clear bar to the ability to represent yourself in any action.\"}"

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+"{\"id\": \"4082493\", \"name\": \"The BANK OF COMMERCE, an Idaho banking corporation, Plaintiff-Counterdefendant-Respondent, v. JEFFERSON ENTERPRISES, LLC, an Idaho limited liability company, Defendant-Counterclaimant-Appellant\", \"name_abbreviation\": \"Bank of Commerce v. Jefferson Enterprises, LLC\", \"decision_date\": \"2013-06-20\", \"docket_number\": \"No. 40034\", \"first_page\": \"824\", \"last_page\": \"836\", \"citations\": \"154 Idaho 824\", \"volume\": \"154\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:49:19.120611+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice BURDICK, and Justices EISMANN, W. JONES and HORTON concur.\", \"parties\": \"The BANK OF COMMERCE, an Idaho banking corporation, Plaintiff-Counterdefendant-Respondent, v. JEFFERSON ENTERPRISES, LLC, an Idaho limited liability company, Defendant-Counterclaimant-Appellant.\", \"head_matter\": \"303 P.3d 183\\nThe BANK OF COMMERCE, an Idaho banking corporation, Plaintiff-Counterdefendant-Respondent, v. JEFFERSON ENTERPRISES, LLC, an Idaho limited liability company, Defendant-Counterclaimant-Appellant.\\nNo. 40034.\\nSupreme Court of Idaho, Pocatello,\\nMay 2013 Term.\\nJune 20, 2013.\\nAble Law PC, Pocatello, for appellant. A. Bruce Larson argued.\\nNelson Hall Parry Tucker, P.A., Idaho Falls, for respondent. Brian T. Tucker argued.\", \"word_count\": \"6979\", \"char_count\": \"41829\", \"text\": \"J. JONES, Justice.\\nThe Bank of Commerce (\\\"Bank\\\") instituted this action to foreclose two mortgages against the Pocatello real estate development of Jefferson Enterprises, LLC (\\\"Jefferson\\\"). Jefferson counterclaimed on a variety of grounds. The district court granted summary judgment in favor of the Bank, ordering foreclosure of the mortgages. We affirm.\\nI.\\nFACTUAL AND PROCEDURAL HISTORY\\nIn late 2005 and early 2006, Jefferson was engaged in the development of a large subdivision known as the Southern Hills Project (the \\\"Project\\\") in the City of Pocatello. At that time, a Jefferson entity owned an eighty acre parcel of land (the \\\"Eighty Acre Parcel\\\"), which was encumbered by a mortgage held by D.L. Evans Bank (\\\"D.L. Evans\\\"). Another Jefferson entity held an option to purchase an adjacent parcel of property known as the \\\"Wood Parcel.\\\" The option on the Wood Parcel was set to expire on May 10, 2006, and the owners were unwilling to extend it. Jefferson considered the Wood Parcel to be critical to the success of the Project and began seeking financing for its acquisition in the final days of 2005.\\nJefferson, acting through its managing member Dustin Morrison, initially sought financing through D.L. Evans, which held the mortgage on the Eighty Acre Parcel. Morrison proposed a loan of $2.8 million, which D.L. Evans declined although indicating a willingness to lend $2.2 million. On April 21, 2006, Morrison approached Steve Worton, a loan officer with the Bank, seeking a loan in the amount of $2.8 million. Morrison contends he submitted an application for funding in that amount, which proposed that the Bank take a first priority mortgage on the Wood Parcel and a second priority mortgage (behind D.L. Evans) on the Eighty Acre Parcel. Morrison further alleges that there was an oral \\\"pre-commitment\\\" of sorts \\u2014 that as part of the negotiations leading up to the approval of the loan the Bank agreed to take a second position mortgage on the Eighty Acre Parcel. However, Worton testified that beginning with their first conversation, Worton and Morrison understood the Bank would have a first position interest in both parcels. In any event, on the 9th of May the Bank's Board of Trustees approved a loan in the amount of $2,223,805, on the condition that the Bank have a first position security interest on both the Eighty Acre Parcel and the Wood Parcel.\\nFaced with the imminent expiration of the option to purchase the Wood Parcel, Morrison contacted D.L. Evans in an attempt to negotiate a subordination of its mortgage on the Eighty Acre Parcel. D.L. Evans would not agree to subordinate. Thus, in order to place the Bank in first position per the conditions of the loan, Jefferson had to pay off the existing mortgage before it could close on the Bank's loan. The loan closed on May 10, 2006. The initial note is in the principal amount of $2,223,805, dated May 9, 2006, and secured by a mortgage recorded on May 10, 2006. The following year, Jefferson gave the Bank an additional note, representing accrued interest on the first note. The second note is in the amount of $400,000, dated June 27, 2007, and secured by a mortgage recorded on June 27, 2007.\\nWhen Jefferson defaulted on the notes, the Bank filed this action to foreclose on its mortgages. Jefferson counterclaimed on a number of grounds. The Bank subsequently moved for summary judgment. The district court issued a memorandum decision and order on January 17, 2012, dismissing Jefferson's counterclaims and ordering the foreclosure of the Bank's mortgages. That same day, the district court issued a judgment that essentially summarized what it had done in the order and required that each party pay its own attorney fees and costs. The Bank timely moved for an award of attorney fees and costs, while Jefferson moved for reconsideration. On April 19, 2012, the district court entered: decisions denying the motion to reconsider and granting the request for attorney fees and costs; a decree of foreclosure ordering the sale of the mortgaged properties; and a judgment granting attorney fees and costs. Jefferson filed a timely appeal.\\nII.\\nISSUES ON APPEAL\\nI. Did the Bank breach an agreement to take a second position security interest in the Eighty Acre Parcel?\\nII. Did the Bank breach the implied covenant of good faith and fair dealing?\\nIII. Did the Bank intentionally interfere with a prospective economic advantage?\\nTV. Did the Bank commit fraud?\\nV. Did the district court improperly dismiss Jefferson's promissory estoppel claim?\\nVI. Did the district court err in finding that a series of novations occurred?\\nVII. Did the district court err in determining that the Bank's mortgages should be foreclosed?\\nVIII. Is either party entitled to attorney fees on appeal?\\nIII.\\nDISCUSSION\\nA. Standard of Review.\\nThis Court employs the same standard as the district court in reviewing a grant of summary judgment. Buku Properties, LLC v. Clark, 153 Idaho 828, 832, 291 P.3d 1027, 1031 (2012). Summary judgment is proper when \\\"the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\\\" I.R.C.P. 56(c). \\\"If the evidence reveals no disputed issues of material fact, then only a question of law remains, over which this Court exercises free review.\\\" Conway v. Sonntag, 141 Idaho 144, 146, 106 P.3d 470, 472 (2005).\\nB. The Bank did not breach an agreement to take a second position security interest in the Eighty Acre Parcel.\\nJefferson contends that the Bank agreed to take a second position security interest in the Eighty Acre Parcel and subsequently breached the agreement by requiring that it satisfy and discharge the D.L. Evans mortgage as a condition of obtaining the loan. It proffers two theories in support of this contention. Jefferson first alleges that the initial mortgage, which it signed on May 10, 2006 (the \\\"Mortgage\\\"), explicitly stated such an agreement. Alternatively, Jefferson contends that the parties reached some sort of pre-commitment oral agreement to that same effect.\\n1. The Mortgage.\\nJefferson argues on appeal that \\\"[t]he Mortgage provided that encumbrances of record, such as the [D.L. Evans mortgage], would have priority over the lien of the Bank's Mortgage.\\\" This contention is based on the following language in the Mortgage:\\n6. WARRANTY OF TITLE. Mortgagor covenants that Mortgagor is lawfully seized of the estate conveyed by this Mortgage and has the right to grant, bargain, convey, sell, and mortgage the Property and warrants that the Property is unencumbered, except for encumbrances of record.\\n8. PRIOR SECURITY INTERESTS. With regard to any other mortgage, deed of trust, security agreement or other lien document that created a prior security interest or encumbrance on the Property and that may have priority over this Mortgage, Mortgagor agrees:\\nA. To make all payments when due and to perform or comply with all covenants.\\nB. To promptly deliver to Lender any notices that Mortgagor receives from the holder.\\nC. Not to make or permit any modification or extension of, and not to request or accept any future advances under any note or agreement secured by, the other mortgage, deed of trust or security agreement unless Lender consents in writing.\\nIn essence, Jefferson's argument is that since these two provisions make reference to existing encumbrances, the Bank's Mortgage was subject to any existing encumbrance, including the D.L. Evans mortgage.\\nThe Bank counters that this argument was not raised in district court and should not be considered on appeal. The Bank presents a series of other counterarguments in the alternative \\u2014 that the Mortgage does not say what Jefferson claims it does; that there were no existing encumbrances to be subordinate to at the time the Mortgage was executed; and that the Mortgage was not subscribed by the Bank and thus is barred by the Statute of Frauds.\\nThis Court has repeatedly held: \\\"To properly raise an issue on appeal there must either be an adverse ruling by the court below or the issue must have been raised in the court below, an issue cannot be raised for the first time on appeal.\\\" Garner v. Bartschi, 139 Idaho 430, 436, 80 P.3d 1031, 1037 (2003) (quoting McPheters v. Maile, 138 Idaho 391, 397, 64 P.3d 317, 323 (2003)). Thus, since this argument was not presented to the district court, we will not consider it on appeal.\\n2. Statute of Frauds.\\nFor summary judgment purposes, the district court assumed:\\nthat the Bank agreed to loan money in accordance with the terms and conditions of the Board of Trustees approval of Jefferson's loan application [and] that the conditions of the loan agreement provided, among other things, that the Bank would be secured on the 80 Acre parcel in a second priority position.\\nIn other words, the court accepted Jefferson's contention that the Bank made a precommitment promise to lend and take a second priority position on the Eighty Acre Parcel. But, since the \\\"promise to loan money involved much more than $50,000,\\\" the court concluded that it needed to consider the Statute of Frauds to determine the breach of contract claim. The court concluded that because the alleged pre-commitment promise was not in writing it was barred by the Statute of Frauds so there was no valid contract to breach.\\nJefferson argues on appeal that the Mortgage was the written document reflecting the pre-commitment, which would thus satisfy the Statute of Frauds. It then argues that if the Statute of Frauds bars anything, it bars the Bank's statements that it \\\"would require the subordination of the 80 Acre mortgage or that it would have to be in a first security position on the property.\\\" Alternatively, Jefferson contends that the Statute of Frauds, to the extent it applies, would only bar the actual promise to loan money, as opposed to the part of the agreement establishing the Bank's priority position.\\nThe Bank responds in agreement with the district court. It argues that the Statute of Frauds requires any promise or commitment to loan $50,000, or more, to be in writing, whatever it is called. Because any alleged pre-commitment was oral, the Bank contends that it is barred by the Statute of Frauds.\\nIdaho's Statute of Frauds is set forth at I.C. \\u00a7 9-505. It provides in relevant part that:\\nIn the following cases the agreement is invalid, unless the same or some note or memorandum thereof, be in writing and subscribed by the party charged, or by his agent. Evidence, therefore, of the agreement cannot be received without the writing or secondary evidence of its contents:\\n5. A promise or commitment to lend money or to grant or extend credit in an original principal amount of fifty thousand dollars ($50,000) or more, made by a person or entity engaged in the business of lending money or extending credit.\\nI.C. \\u00a7 9-505. In applying this statute to a case with similar facts, this Court held an oral agreement to lend $50,000 or more to be \\\"invalid because it clearly violates I.C. \\u00a7 9-505(5).\\\" Lettunich v. Key Bank Nat. Ass'n, 141 Idaho 362, 367, 109 P.3d 1104, 1109 (2005).\\nThe transaction at issue in Lettunich was quite similar to this one. Id. at 365, 109 P.3d at 1107. There, the borrower, Lettunich, approached the defendant bank to negotiate a loan for the purpose of buying out his partner's interest in a cattle operation. Id. Three loans exceeding $50,000 were negotiated \\u2014 one for real estate, a term loan to purchase cattle, and an operating line of credit for the cattle business \\u2014 and the bank sent Lettunich a separate commitment letter for each loan. We stated that the commitment letters did not satisfy the writing requirement of I.C. \\u00a7 9-505(5) because they were never executed by the proper parties. Id. at 367, 109 P.3d at 1109. Nevertheless, Lettunich contended that the bank had orally contracted to loan him the funds necessary to pay for cattle he purchased at a partnership dispersion auction because of assurances given to him by a bank representative both before and during the sale. Id. at 365-66, 109 P.3d at 1107-08. In an affidavit, Lettunich stated that the bank representative repeatedly assured him the bank would \\\"finance the purchase of the cattle,\\\" that the representative told him to \\\"continue to purchase the cattle at the sale\\\" when he sought further assurances, and that he \\\"never would have purchased the cattle at the dispersion sale if [he] had known [the bank] was not going to honor its commitment.\\\" Id. at 366, 109 P.3d at 1108. However, after Lettunich had committed to buy over $400,000 in cows, the bank ultimately \\\"refused to fund the cattle term loan and operating line of credit.\\\" Id. The Court held that the Statute of Frauds disposed of the matter, saying:\\nLettunich argues there was an oral agreement between the parties. Viewing the evidence in a light most favorable to Lettunich, even if we infer there was an oral agreement between the parties at least as far as loaning money to purchase cattle, the oral agreement is invalid because it clearly violates I.C. \\u00a7 9-505(5).\\nId. at 367, 109 P.3d at 1109. Even though Lettunich presented a more compelling case for relief than Jefferson has, he was unable to avoid the Statute of Frauds bar without a sufficient writing.\\nThe Statute of Frauds bars any breach of contract claim here. Assuming, as the district court did, that there was in fact a pre-commitment to loan money and that the Bank agreed to take a second position on the Eighty Acre Parcel, no one claims that such an agreement was in writing. Indeed, Morrison stated repeatedly throughout his deposition that the alleged pre-commitment was not in writing:\\nQ. [Bank's Counsel] Now, back to this idea of, as you called it, kind of a precommitment, was there a precommitment given to you in writing?\\nA. [Morrison] There was nothing given to me in writing.\\nQ. So this precommitment idea that you are referring to again related to what you claim Steve Worton told you?\\nA. Everything was related to what Steve Worton told me because there wasn't one thing in writing, nothing. There wasn't an approval in writing, there wasn't a list of conditions in writing, contingencies in writing. There wasn't a formal request in writing. Nothing was in writing.\\nQ. I am asking about this what you called kind of this preapproval, on this April 25 approval when Steve Worton called you.\\nA. Yes. Like I said, I don't know if it was April 25, but it was prior to [May 9].\\nQ. But, again, that wasn't in writing.\\nA. No.\\nQ. Nothing in writing that said that the bank would take a second position of that property.\\nA. No.\\nAs in Lettunich, any pre-commitment from the Bank to lend Jefferson $2.8 million and take a second position on the Eighty Acre Parcel would have had to be in writing. Because no writing exists, the Statute of Frauds bars any alleged oral agreement.\\nWith regard to Jefferson's contention that the Statute of Frauds only bars enforcement of a promise to loan money, but not an agreement as to the priority to a security interest, we note two insurmountable hurtles. First, in a mortgage lending transaction the priority of a security interest is a critical and integral part that cannot be separated from the rest of the agreement. Both parties contend that the security provisions were a critical part of this transaction, although they disagree as to what those provisions were. Thus, the security provisions were an essential term of the lending agreement. See Chapin v. Linden, 144 Idaho 393, 397, 162 P.3d 772, 776 (2007) (\\\"[0]nce parties attempt to provide for security it becomes an essential term of the contract.\\\") Second, the best evidence of the actual agreement of the parties regarding priority is what actually occurred in the transaction. Here, Jefferson discharged the D.L. Evans mortgage prior to closing and the Bank took a first mortgage on both parcels of Project property. Without a writing that complies with the provisions of I.C. \\u00a7 9-505(5) to prove that the actual agreement of the parties was to the contrary, Jefferson has absolutely no grounds to assert a breach of contract claim.\\nIn sum, there are no disputed material facts that show the Bank made a loan precommitment or other oral agreement that complied with the Statute of Frauds. We thus hold that the Bank did not breach any agreement and affirm the district court's conclusion in that regard.\\nC. The Bank did not breach the implied covenant of good faith and fair dealing.\\nJefferson alleges that the Bank breached the implied covenant of good faith and fair dealing by \\\"changing its position and requiring Jefferson to pay off the existing loan on the 80 Acre parcel.\\\" The district court did not directly address this issue, nor did the Bank. But, because the Bank acted in accordance with the parties' agreement, we hold that the Bank did not breach the implied covenant.\\nIdaho law \\\"implies a covenant of good faith and fan- dealing when doing so is consistent with the express terms of an agreement between contracting parties.\\\" Noak v. Idaho Dep't of Correction, 152 Idaho 305, 309, 271 P.3d 703, 707 (2012). \\\"When it is implied, '[t]he covenant requires that the parties perform, in good faith, the obligations imposed by their agreement.' \\\" Id. (quoting Idaho Power Co. v. Cogeneration, Inc., 134 Idaho 738, 750, 9 P.3d 1204, 1214 (2000)). Such a claim may only be asserted by parties to a contract. Id. \\\"Even then, one can maintain a claim for breach of the covenant only when he or she 'is denied the right to the benefits of the agreement [the parties] entered into.' \\\" Id.\\nJefferson simply cannot show that it was denied the benefit of any valid contract provision. As discussed above, the Bank did not agree that it would take second position on the Eighty Acre Parcel, nor did it agree that it would never change its position during the course of negotiations. As for the Bank \\\"requiring\\\" Jefferson to pay off the existing loan, the choice to do so was ultimately Jefferson's:\\nQ. [Bank's Counsel) Whenever it was, were you at that point committed to accept that loan from the Bank of Commerce?\\nA. [Morrison] Yes.\\nQ. So you had to accept the loan?\\nA. In a practical sense, yes, because I had to perform by a certain date, and I hadn't been pursuing a loan with anybody else.\\nQ. But I am saying legally were you obligated\\u2014\\nA. No.\\nQ. You weren't obligated to accept the loan that the bank gave you.\\nA. Not legally; I could have lost the project.\\nMorrison's admissions show that Jefferson was not in fact required to pay off the D.L. Evans mortgage. Had he wished not to, he should have simply not taken the loan. His decision to take the loan does not itself create a material issue of fact that the Bank acted in bad faith. We thus affirm the district court's holding that the Bank did not breach the implied covenant of good faith and fair dealing.\\nD. The Bank did not intentionally interfere with a prospective economic advantage.\\nThe district court found that the Bank did not \\\"intentionally propose . a loan that would interfere with and cause Jefferson to lose any economic expectancy.\\\" Thus, the court concluded Jefferson could not prove its claim for intentional interference with a prospective economic advantage. Jefferson contends that the Bank did intentionally interfere with a prospective economic advantage by requiring the D.L. Evans loan to be paid off, \\\"inducing termination of [Jefferson's] economic expectancy.\\\" It bolsters this by further arguing that \\\"Worton also knew at the time of the closing that the only likely source of money to pay off the 80 Acre encumbrance would have been from Jefferson's working capital.\\\" Thus, Jefferson concludes, the Bank's \\\"actions in reducing Jefferson's ability to service the Bank's loan\\\" ultimately led to \\\"catastrophic loss.\\\" The Bank responds that, as found by the district court, there is no proof the Bank intentionally interfered with Jefferson's economic expectancies.\\nA plaintiff seeking to establish a claim for intentional interference with a prospective economic advantage \\\"must show (1) the existence of a valid economic expectancy, (2) knowledge of the expectancy on the part of the interferer, (3) intentional interference inducing termination of the expectancy, (4) the interference was wrongful by some measure beyond the fact of the interference itself, and (5) resulting damage to the plaintiff whose expectancy has been disrupted.\\\" Cantwell v. City of Boise, 146 Idaho 127, 137-38, 191 P.3d 205, 215-16 (2008); see also Highland Enter., Inc. v. Barker, 133 Idaho 330, 338, 986 P.2d 996, 1004 (1999). With respect to the third element, intentional interference, this Court has held that \\\"the plaintiff may show that the interference 'with the other's prospective contractual relation is intentional if the actor desires to bring it about or if he knows that the interference is certain or substantially certain to occur as a result of his action.' \\\" Highland, 133 Idaho at 340, 986 P.2d at 1006. We further clarified that \\\"[i]ntent can be shown even if the interference is incidental to the actor's intended purpose and desire 'but known to him to be a necessary consequence of his action.' \\\" Id. Because \\\"[w]hat motivates a person to act seldom is susceptible of direct proof,\\\" culpable intent may be inferred from conduct substantially certain to interfere with the prospective economic relationship. Id.\\nThe Highland Court applied these rules in examining an environmental group that engaged in \\\"direct action\\\" activism \\u2014 \\\"non-violent protest of road building and timber harvesting such as burying people in the road, erecting tripods in the road and sitting in the tripod, and chaining people to equipment and gates in order to block work.\\\" Id. at 335, 986 P.2d at 1001. The Court noted that the defendants were not directly targeting the plaintiff with these actions, and the defendants indeed testified that \\\"the intention was not to deprive Highland of, you know, a major portion of their economic activities.\\\" Id. at 340, 986 P.2d at 1006. Even so, the defendants realized that their \\\"activities also affected Highland even though Highland was not the direct target.\\\" Id. We concluded that:\\nIt is reasonable to infer from the evidence of the appellants' conduct presented at trial that the conduct was substantially certain to interfere with an economic advantage. The substantially certain aspect of appellants' conduct allows a finding of intent. Even more, regardless of the assertion that Highland was not the intended target of their activities and saving the trees was the ultimate objective, intent can be shown even if the interference is incidental to the actor's intended purpose and desire, but known to him to be a necessary consequence of his action. A reasonable conclusion from the appellants' activities is that even if they intended only to harm the Forest Service and preserve the Cove/Mallard area, a necessary consequence of their actions would be that those constructing the roads would suffer financially.\\nId. at 340-41, 986 P.2d at 1006-07. This Court thus held that substantial evidence supported a conclusion that the Highland defendants intended to terminate Highland's prospective economic advantage. Id.\\nHere, the Bank did not intentionally interfere with Jefferson's prospective economic advantage because, as the district court concluded, the intent element is miss ing. Jefferson simply argues that the Bank's insistence that Jefferson pay off the D.L. Evans loan on the Eighty Acre Parcel was intentional interference. But this does not rise to the level of intentional interference as set forth in Highland.\\nThe Bank's purported interference was not an act of sabotage or mischief as in Highland, but an insistence on a certain set of loan terms, and this insistence alone would not imply that Jefferson would \\\"suffer financially\\\" as a necessary consequence. For all the Bank knew, Jefferson could have simply declined the Bank's offer and found financing elsewhere. Or, it could reasonably have assumed that Jefferson was not foolish enough to take a loan that Morrison knew his company could not possibly repay. Jefferson's argument appears to boil down to a contention that the Bank acted in bad faith simply because it did not vigorously try to discourage the company from taking a loan that Morrison realized was risky from the start \\u2014 that is, that the Bank should have saved Jefferson from itself. In any ease, simply because the Bank presented Jefferson -with financing terms it preferred \\u2014 which Jefferson accepted, and which ultimately did not work out in its favor \\u2014 does not lead to an inference that the Bank knew that Jefferson would suffer financially. Indeed, the terms offered by the Bank, and accepted by Jefferson, are essentially the same as had been extended by D.L. Evans \\u2014 a $2.2 million loan where D.L. Evans already held first position on one parcel and would obtain it on the other. There is no indication that either bank had some nefarious intent to cause injury to Jefferson or to cause its Project to fail by extending or proposing such terms. Jefferson has proposed no motive on the part of the Bank for wishing to cause Jefferson's Project to fail\\u2014 a result which would require the Bank to pursue extended litigation to foreclose upon its mortgages. Therefore, we hold that there was no intentional interference on the part of the Bank and accordingly affirm the district court's determination of this claim.\\nE. Jefferson failed to make a showing of fraud.\\nThe district court found that the Bank did not commit fraud because there was no evidence of a false statement, or reliance on the part of Jefferson, regarding: 1) the Bank taking a second position on the Eighty Acre Parcel; or 2) an alleged promise to provide further financing. Jefferson argues to the contrary, claiming the Bank and its officers \\\"made the materially false representation that the Bank had agreed to accept a second lien position on the 80 Acre parcel allowing Jefferson to profit . from the existing favorable financing arrangement and to preserve its ability to use its liquid assets.\\\" It contends that there is \\\"abundant circumstantial evidence\\\" of fraudulent intent, but unhelpfully, does not provide citations to the record to back up this claim. The Bank responds that the district court correctly found no evidence of several of the required elements of fraud.\\nFor a fraud claim to succeed a plaintiff must \\\"establish nine elements with particularity: (1) a statement or a representation of fact; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity; (5) the speaker's intent that there be reliance; (6) the hearer's ignorance of the falsity of the statement; (7) reliance by the hearer; (8) justifiable reliance; and (9) resultant injury.\\\" Chavez v. Barrus, 146 Idaho 212, 223, 192 P.3d 1036, 1047 (2008) (citing Lettunich, 141 Idaho at 368, 109 P.3d at 1110). In Chavez, the plaintiff failed to establish that a title company made a false statement, that she was aware of any statement, that she relied on it, or that she suffered an injury as a result. Id. Accordingly, we concluded that the lower court did not err in dismissing her fraud claim. Id.\\nSimilarly, Jefferson has not shown a genuine issue of material fact regarding its fraud claim. In particular, we find no evidence here that the Bank made an intentional misstatement of material fact. Jefferson states, with no citation to the record, that \\\"[t]he Bank and its officers made the materially false representation that the Bank had agreed to accept a second lien position on the 80 Acre parcel,\\\" and that \\\"the Bank intentionally or negligently concealed the fact that it would or could change its position\\\" thereafter. The record provides no factual support for these allegations. Furthermore, Jefferson claims that it \\\"had the 'right to rely' on the misrepresentation made by the Bank that it would not allow Jefferson and the related businesses to fail and that the Bank would provide operating funds to Jefferson to that end.\\\" But Jefferson points to no evidence that shows the Bank ever made such a representation. Indeed, the sole colloquy used to support this allegation shows the contrary:\\nA. [Morrison] Steve [Worton] says there is no way the bank wants [Jefferson] to fail, there is no way that the bank wants this to fail, there is no way the bank wants this as an asset. So do whatever you think is the right thing for you to do, but if you do this, my hunch is that you will be able to come back into this bank and they will consider whatever your loss was. . So we moved forward understanding that it would be the bank's effort to mitigate this impact of this new requirement on our business.\\nQ. [Bank's Counsel] And that's based on what you claim Steve Worton told you?\\nA. He didn't say those words, but yes.\\nQ. And did he give you something in writing to that effect?\\nA. He didn't give me anything in writing for anything.\\nQ. So as I understood what you said, these are operating funds you think he was promising you?\\nA. No. The ability to operate without those funds. I don't think he was promising it, I think he was using some common sense argument that there is no way that the bank won't do this.\\nQ. So you didn't view that as a loan commitment from the bank?\\nA. No, I didn't. It was just one penny of a dollar's worth of consideration on what to do at that crossroads at that point in the 11th hour.\\nQ. Ultimately you decided that you would accept the terms that the bank offered and close the loan.\\nA. Yes. But I mean there was a temporary atmosphere to that commitment, too.\\nQ. What do you mean by that?\\nA. Meaning I felt like that we would probably go back to the table afterwards and figure something else out. Because it was so clearly expressed to Steve that from a common sense point of view I cannot continue to operate my business as we are doing now without this working capital.\\nQ. Now, you say you thought there would be. Are you saying there was a commitment on the part of the bank?\\nA. No.\\nQ. That's just what you thought would happen.\\nA. Yes. That was a consideration that I made in choosing to do what I did.\\n(Emphasis added.) At best, this shows that Worton told Morrison that he had a \\\"hunch\\\" that the Bank would \\\"consider\\\" Jefferson's loss if he came back for additional funds\\u2014 but Morrison testified that even this minimal commitment was not Worton's \\\"exact words.\\\" Assuming Worton said something close to Morrison's approximation, he was prognosticating at best and not promising to never change position, or promising to extend future financing. What Worton's exact words were are anyone's guess, but the undisputed evidence shows the Bank made no representations that it would not change its position, or that it would extend further funding. Rather, Morrison was relying on something he simply \\\"thought would happen.\\\" Without evidence of a material misstatement of fact, the Bank could not have committed fraud. Thus, we affirm the district court's finding that no fraud occurred.\\nF. The district court correctly dismissed Jefferson's promissory estoppel claim.\\nThe district court found that Jefferson's promissory estoppel claim failed for the same reason its breach claim failed: \\\"no [loan] precommitment\\\" was in writing. Because \\\"there was no written pre-commitment agreement,\\\" there was also \\\"no valid or definite agreement\\\". Thus, the court found, Jefferson could not recover based on estoppel. Jefferson makes a convoluted argument on appeal, arguing again that the Mortgage terms were incorporated into the loan agreement, and offering eonclusory statements, with no citations to the record, that the elements of promissory estoppel were met. The Bank agrees with the district court that there was no valid loan commitment prior to closing. \\\"As such,\\\" it contends, \\\"the Bank should not be estopped from denying a nonexistent agreement which would have violated the Statute of Frauds.\\\"\\nPromissory estoppel, generally speaking, means that \\\"[a] promise which the promisor should reasonably expect to induce action or forebearance on the part of the promisee or a third person and which does induce such action or forebearance is binding if injustice can be avoided only by enforcement of the promise.\\\" Smith v. Boise Kenworth Sales, Inc., 102 Idaho 63, 67-68, 625 P.2d 417, 421-22 (1981) (quoting Restatement (Second) of Contracts \\u00a7 90(1) (1973)). This Court has further found that:\\n[A] party seeking to avail itself of the doctrine must show that: \\\"(1) the detriment suffered in reliance was substantial in an economic sense; (2) substantial loss to the promisee acting in reliance was or should have been foreseeable by the promisor; and (3) the promisee must have acted reasonably in justifiable reliance on the promise as made.\\\"\\nId. (quoting Mohr v. Shultz, 86 Idaho 531, 540, 388 P.2d 1002, 1008 (1964)).\\nIn the Lettunich case, the plaintiff attempted to invoke the promissory estoppel doctrine under similar facts. There, a bank argued that, due to the Statute of Frauds, an alleged oral promise to lend could not be enforced. Lettunich, 141 Idaho at 366, 109 P.3d at 1108. Lettunich responded that, \\\"promissory estoppel should be used in this ease to prevent KeyBank from denying the enforceability of an oral promise.\\\" Id. at 367, 109 P.3d at 1109. This Court noted that because the promise did not comply with the Statute of Frauds, \\\"there was no complete promise . to be enforced.\\\" Id. We further explained that \\\"[promissory estoppel is simply a substitute for consideration, not a substitute for an agreement between parties.\\\" Id. Accordingly, though Lettunich \\\"clearly suffered a detriment when he purchased cattle without a way to pay for them,\\\" the \\\"doctrine of promissory estoppel [was] of no consequence . because there [was] evidence of adequate consideration.\\\" Id. at 368, 109 P.3d at 1110. We reiterated that what was \\\"lacking [was] a sufficiently definite agreement\\\" and without such an agreement, estoppel was not appropriate. Id.\\nThe Lettunich holding disposes of Jefferson's claim here. As noted above, any alleged oral pre-commitment from the Bank would not be valid for failure to comply with the Statute of Frauds. And just as promissory estoppel would not substitute for an invalid agreement in Lettunich, it will not do so here. Because there is \\\"no complete promise . to be enforced\\\" here, Jefferson is unable to avail itself of promissory estoppel. We thus affirm the district court's decision on this claim.\\nG. Novation is not an issue.\\nIn ruling on the Bank's motion for summary judgment, the district court found that a series of novations \\\"changed the terms of the original loan application by Jefferson.\\\" However, it concluded that \\\"ultimately Jefferson entered into a loan agreement with the Bank which extinguished all other preloan agreements that may have been contemplated by the parties.\\\" Jefferson disputes this on appeal arguing that \\\"[i]ssues of fact arising from the circumstances of this case raise the issue of whether or not the elements necessary to find novation are present,\\\" without explaining those circumstances in detail or bothering to cite to the record. The Bank responds that even if a valid preloan commitment existed, \\\"any such agreement was subsequently extinguished and substituted by the written $2.2 million agreement.\\\"\\nThis Court has held that \\\"novation is a species of accord and satisfaction,\\\" and one that \\\"results when an accord and satisfaction is reached by substitution of a new agreement or performance in place of the performance or compromise of the original obligation.\\\" Harris v. Wildcat Corp., 97 Idaho 884, 886, 556 P.2d 67, 69 (1976). Logically, for a novation to exist, there must first be a valid agreement to be substituted for.\\nNovation is not a relevant issue in this appeal. The district court apparently considered it an issue based on the assumption for summary judgment purposes that the oral agreement alleged by Jefferson did exist. But, the court then determined that the oral agreement was subsequently amended by the parties to result in the actual agreement that was carried out at closing \\u2014 the Bank loaning $2.2 million and taking a first mortgage against both parcels. However, since any alleged oral agreement was barred by the Statute of Frauds, there was no valid agreement to be novated. No subsequent agreement complying with the Statute of Frauds exists. The question of novation is superfluous to the outcome of this case. This is simply a case where Jefferson applied for a $2.8 million loan with a first mortgage on one parcel and a second on the other, the Bank countered with an offer to loan $2.2 million with a first mortgage on both parcels, and Jefferson accepted and closed on the Bank's terms.\\nH. The district court did not err in ordering foreclosure.\\nIn its final issue presented on appeal, Jefferson claims: \\\"The District Court erred in determining that the Bank's Mortgage should be foreclosed in that there are disputed materials [sic] of fact that would have precluded the entry of summary judgment allowing the foreclosure.\\\" Jefferson presents no argument specifically in support of this issue, apparently assuming that it would necessarily follow if the Court were to reverse the judgment of the district court. Since we affirm, there are simply no grounds to find that the district court erred in ordering foreclosure of the mortgages.\\nI. The Bank is entitled to attorney fees based on contract.\\nThe Bank claims entitlement to attorney fees on appeal, pointing out that in both of the notes and mortgages at issue here, Jefferson agreed to pay \\\"all costs and expenses incurred by [the Bank] in enforcing or protecting [its] rights and remedies,\\\" including attorney fees and costs. \\\"Where a valid contract between the parties contains a provision for an award of attorney fees, the terms of the contract establish a right to attorney fees.\\\" Lamprecht v. Jordan, LLC, 139 Idaho 182, 186, 75 P.3d 743, 747 (2003). Since the notes and mortgages provide that Jefferson must pay the Bank's attorney fees and costs, we award the Bank its fees and costs on appeal.\\nIV.\\nCONCLUSION\\nWe affirm the decree of foreclosure and judgment and award the Bank its attorney fees and costs on appeal.\\nChief Justice BURDICK, and Justices EISMANN, W. JONES and HORTON concur.\\n. The loan application actually consisted of Morrison's oral presentation and a \\\"fairly thick binder\\\" that had \\\"tax returns, financial statements, and an appraisal of the property, projected sales and other information.\\\" The binder apparently went to the Bank's loan committee on May 8, 2006, as part of the loan package.\\n. This note was subsequently amended on February 21, 2008, to increase the loan amount by $20,062.20 and to extend the due date from January 1, 2008, to May 1, 2008.\\n. It is unclear why it was necessary to enter two separate judgments. The first judgment, entered on January 17, 2012, appears to have been premature and not particularly in compliance with I.R.C.P. 54(a). It decides the issue of attorney fees and costs, even though the parties had 14 days from entry to submit their respective requests for the same. I.R.C.P. 54(d)(5) and 54(e)(5). Further, that judgment does not appear to state the relief to which the Bank was entitled but, rather, essentially summarized the provisions of the memorandum decision and order. The decree of foreclosure appropriately set out the relief to which the Bank was entitled but the second judgment, also entered on April 19, dealt solely with the award of attorney fees and costs. The first judgment could easily have been foregone and the second judgment could have set out the critical relief portions of the decree of foreclosure.\\n. Even if the argument had been properly presented below, the argument simply does not wash. Paragraphs 6 and 8 of the Mortgage are boilerplate provisions that say nothing about the priority of the Bank's security interest. Paragraph 6 merely sets out standard terms regarding warranty of title, while paragraph 8 sets out typical covenants regarding payment of existing secured creditors. These provisions do not state that the Bank will take a second priority position and, even if they did, the Bank correctly notes that by the time the Mortgage was executed there was no prior mortgage of record \\u2014 the D.L. Evans mortgage had already been paid, satisfied and discharged by Jefferson.\\n. What Jefferson seems to arguing is that the Bank's approval of the loan on May 9 was the loan commitment, but that prior to the commitment the Bank, acting through Worton, had agreed with the terms of the application submitted by Jefferson \\u2014 that the Bank would take a second priority mortgage on the Eighty Acre Parcel. One must keep in mind that the application, as indicated in footnote 1, consisted of an oral presentation and a binder of documents. No particular writing has been identified by Jefferson as containing the proposal for a second position mortgage.\\n. Jefferson contended that the oral agreement was for a loan of $2.8 million with a second position on the Eighty Acre Parcel. However, he acknowledges that the Bank only agreed to lend $2.2 million. Jefferson seems to concede that it agreed to this alteration in the terms of the alleged pre-commitment agreement.\"}"

idaho/4104269.json

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+"{\"id\": \"4104269\", \"name\": \"Terrence F. BAGLEY and John Kelly Bagley, Plaintiffs-Counterdefendants-Respondents, v. Byron T. THOMASON and Marilynn Thomason, Defendants-Counter-plaintiffs-Appellants\", \"name_abbreviation\": \"Bagley v. Thomason\", \"decision_date\": \"2013-08-16\", \"docket_number\": \"No. 39069\", \"first_page\": \"193\", \"last_page\": \"199\", \"citations\": \"155 Idaho 193\", \"volume\": \"155\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:23:48.827699+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES, concur.\", \"parties\": \"Terrence F. BAGLEY and John Kelly Bagley, Plaintiffs-Counterdefendants-Respondents, v. Byron T. THOMASON and Marilynn Thomason, Defendants-Counter-plaintiffs-Appellants.\", \"head_matter\": \"307 P.3d 1219\\nTerrence F. BAGLEY and John Kelly Bagley, Plaintiffs-Counterdefendants-Respondents, v. Byron T. THOMASON and Marilynn Thomason, Defendants-Counter-plaintiffs-Appellants.\\nNo. 39069.\\nSupreme Court of Idaho, Idaho Falls,\\nMay 2013 Term.\\nAug. 16, 2013.\\nRehearing Denied Sept. 19, 2013.\\nMarilynn Thomason, Rexburg, pro se appellant.\\nBeard St. Clair Gaffney, PA, Idaho Falls, for respondents.\\nLance J. Schuster argued.\", \"word_count\": \"3102\", \"char_count\": \"18763\", \"text\": \"HORTON, Justice.\\nThis appeal arises from the grant of a motion for judgment on the pleadings in a quiet-title action. This is the third appeal pursued by Byron Thomason (deceased) and his wife Marilynn Thomason (Thomasons) against the brothers Terrence Bagley and John Bagley (the Bagleys). In the first appeal, this Court affirmed the district court's order quieting title to real property in the Bagleys and awarding them attorney fees. Bagley v. Thomason, 149 Idaho 799, 241 P.3d 972 (2010) (Bagley I). In the second appeal, this Court affirmed the district court's decision granting the Bagleys certain shares of water previously held by the Tho- masons. Bagley v. Thomason, 149 Idaho 806, 241 P.3d 979 (2010) (Bagley II). Subsequent to the filing of the notices of appeal, the Bagleys were awarded attorney fees and obtained a writ of execution to satisfy the judgment for attorney fees. Pursuant to the writ of execution, the sheriff seized some of the Thomasons' personal property to satisfy the judgment. The Thomasons' requests for exemption and emergency stay were denied. After this Court's opinion in Bagley I was released, the Bagleys moved for and were granted judgment on the pleadings. The Thomasons appeal.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nIn July 2007, the Thomasons and the Bagleys executed a warranty deed and an \\\"Agreement to Reconvey\\\" wherein the Bagleys agreed to pay outstanding debt of the Thomasons in the amount of $147,225.58. The Thomasons conveyed to the Bagleys certain real property located in Madison County, Idaho. The agreement to reconvey specified that the Bagleys would convey the property back to the Thomasons upon repayment of the debt plus interest by January 2008. The agreement also specified that if the Thomasons failed to repay the debt, the Agreement to Reconvey would be nullified and the Bagleys would retain the property. The Thomasons did not repay the debt. In May 2008, the Bagleys brought suit to quiet title in the property. The Bagleys moved for partial summary judgment, which the district court granted in October 2008, quieting title to the property in the Bagleys. The Thomasons filed their notice of appeal on December 22, 2008. On February 9, 2009, while the appeal was pending, the district court found that the Bagleys were the prevailing party and awarded them costs and attorney fees in the amount of $12,225.36. On August 19, 2009, the Bagleys obtained a writ of execution for the judgment for attorney fees. The Thomasons claimed an exemption and requested an emergency stay, which this Court denied.\\nOn appeal, this Court affirmed the decision of the district court quieting title to the property in the Bagleys. Bagley I, 149 Idaho at 805, 241 P.3d at 978. This Court also affirmed the award of attorney fees. Id. at 804, 241 P.3d at 977. The Court held that the Bagleys had standing to bring the underlying quiet title action and that the Tho-masons failed to raise the issue of whether the warranty deed was void for failing to include the grantees' complete address. After this Court's decisions in Bagley I and Bagley II, the Thomasons requested that the district court reverse the orders it issued after the notice of appeal was filed. The Bagleys objected to that motion and filed a motion for judgment on the pleadings. The district court heard arguments on both motions, and gave the parties additional time to brief the motion for judgment on the pleadings. The district court then denied the Thomasons' Motion to Reverse Orders and granted the Bagleys' Motion for Judgment on the Pleadings. The district court held that it had jurisdiction to award attorney fees after the notice of appeal was filed, that it had jurisdiction to deny the Thomasons' request for exemption, and that no factual issues remained. The district court thereafter considered the Thomasons' motion for reconsideration of its previous orders and the Bagleys' responsive motion for award of sanctions. The district court denied the Thomasons' motion for reconsideration and awarded the Bagleys the attorney fees they incurred in resisting the motion.\\nThe Thomasons appeal pro se, arguing that the Bagleys did not have standing to bring this action, that the district court did not have subject matter jurisdiction, and that the district court violated the Thomasons' equal protection rights. We affirm.\\nII. STANDARD OF REVIEW\\n\\\"I.R.C.P. 12(c) governs motions for judgment on the pleadings. By its terms, Rule 12(c) treats such motions similarly to motions for summary judgment. Thus, the standard of review applicable to lower courts' rulings on motions for summary judgment also applies to motions for judgment on the pleadings.\\\" Trimble v. Engelking, 130 Idaho 300, 302, 939 P.2d 1379, 1381 (1997). Summary judgment is appropriate \\\"if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.\\\" I.R.C.P. 56(c); G & M Farms v. Funk Irr. Co., 119 Idaho 514, 516-17, 808 P.2d 851, 853-54 (1991). Furthermore, \\\"[a]ll doubts are to be resolved against the moving party, and the motion must be denied if the evidence is such that conflicting inferences may be drawn therefrom, and if reasonable people might reach different conclusions.\\\" Id.\\nIII. ANALYSIS\\nA. Subject Matter Jurisdiction\\nThe Thomasons argue that the district court lacked subject matter jurisdiction because the warranty deed did not contain the Bagleys' complete address as required by I.C. \\u00a7 55-601. Subject matter jurisdiction is \\\"the power to determine cases over a general type or class of dispute.\\\" Bach v. Miller, 144 Idaho 142, 145, 158 P.3d 305, 308 (2007). The Idaho Constitution grants the district courts of this State original jurisdiction over all matters at law and in equity. Idaho Const, art. V, \\u00a7 20. This case was originally a quiet title action. This Court has long held that our district courts have subject matter jurisdiction to adjudicate quiet title actions. Id.; Whitney v. Randall, 58 Idaho 49, 56, 70 P.2d 384, 387 (1937). Thus, we reject the Thomasons' argument that the district court lacked subject matter jurisdiction because the grantees' address was not contained in the deed.\\nThis argument seems to be a variation of an argument presented in the Thomasons' second appeal before this Court, in which the Thomasons argued that the Bagleys lacked standing because the deed did not comply with I.C. \\u00a7 55-601. Bagley II, 149 Idaho at 807, 241 P.3d at 980. There, the Thomasons failed to understand that there is a difference between the merits of a party's case and that party's standing. This Court reiterated the principle that \\\"a party can have standing to bring an action, but then lose on the merits.\\\" Id. (citing Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989)). Likewise, whether a district court has subject matter jurisdiction is not dependent upon the merits of the action.\\nB. Standing\\nThe Thomasons next argue that the Bagleys lacked standing to bring this lawsuit. They do so by citing some general principles of law regarding standing, but without any explanation as to why the Bagleys are without standing. This issue has already been decided by this Court. Bagley I, 149 Idaho at 802, 241 P.3d at 975. There, we held that the \\\"Bagleys have standing to bring their quiet title action.\\\" Id. Our previous decision brings the law of the case doctrine into play.\\nThe doctrine of \\\"law of the case\\\" is well established in Idaho and provides that upon an appeal, the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement be comes the law of the case and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal.\\nSwanson v. Swanson, 134 Idaho 512, 515, 5 P.3d 973, 976 (2000) (internal citations omitted). The Thomasons have not demonstrated a change in circumstances subsequent to our decision in Bagley I that would deprive the Bagleys of standing. Therefore, our previous determination that the Bagleys had standing to bring the quiet title action \\\"must be adhered to\\\" in this \\\"subsequent appeal\\\" and we hold that the Thomasons' argument regarding standing is without merit.\\nC. Orders After Notice of Appeal Filed\\nIn an argument that advances a confusing blend of legal standards, the Thomasons argue that the district court abused its discretion by entering orders and making rulings on various issues over which the court lacked subject matter jurisdiction. We understand this argument as referring to Bagley I, where we stated that \\\"[u]pon the filing of Thomasons' notice of appeal, the district court lost jurisdiction over the entire action except as provided in Rule 13 of the Idaho Appellate Rules.\\\" 149 Idaho at 804, 241 P.3d at 977 (citing Diamond v. Sandpoint Title Ins., Inc., 132 Idaho 145, 148, 968 P.2d 240, 243 (1998)). Assuming that we have correctly discerned the gist of the Thomasons' argument, they are asserting that the district court lacked jurisdiction to make rulings on motions or to enter orders following the filing of their notice of appeal. One of the orders referenced by the Thomasons is the award of attorney fees. However, this Court addressed that order in Bagley I, noting that I.A.R. 13(b)(9) allows the district court to \\\"make any order regarding the taxing of costs or determination of attorneys fees incurred in the trial of the action.\\\" Id. This Court did express concern regarding the timing of that award, even though it was not raised on appeal by the Thomasons, in the following footnote:\\nAlthough the district court had jurisdiction to award costs, including attorney fees, they are awarded to the prevailing party in the action. Idaho R. Civ. P. 54(d)(1)(B) (emphasis added). Where a party prevails only in part, the court \\\"may apportion the costs between and among the parties in a fair and equitable manner after considering all of the issues and claims involved in the action and the resultant judgment or judgments obtained.\\\" Id. The court cannot do so after considering \\\"all of the claims involved in the action and the resultant judgment or judgments obtained\\\" until all of the claims between the relevant parties have been resolved. All of Bagleys' claims and Thomasons' counterclaims were not resolved when the district court awarded Bagleys court costs, including attorney fees, for prevailing on one of their claims. Thomasons have not argued on appeal that the district court erred in awarding costs before there was a prevailing party in the action, and nothing herein should be construed as holding that a trial court can award court costs, including attorney fees, on a piecemeal basis as each claim between the parties is decided.\\nId. at 804, n. 4, 241 P.3d at 977, n. 4 (emphasis in original). As before, however, the Thomasons do not allege error in the timing of the award of attorney fees. Rather, they assert that the district court lacked subject matter jurisdiction to issue any orders whatsoever. With respect to the issue of attorney fees, this Court has already ruled that the district court had subject matter jurisdiction.\\nAnother of the Thomasons' arguments may be interpreted as an objection to the issuance of a writ of execution and the district court's order denying their claim of exemption while the appeal was pending, as the Thomasons argue that they are entitled to have all of their personal property returned. This argument is without merit.\\nWhen a Rule 54(b) certificate is issued after the district court enters a partial judgment and that partial judgment is appealed, the district court loses jurisdiction over the entire action while the appeal is pending, except as provided in I.A.R. 13. I.R.C.P. 54(b)(2). After a notice of appeal has been filed, there is a fourteen day automatic stay imposed on all \\\"proceedings and execution of all judgments or orders in a civil action in the district court.\\\" I.A.R. 13(a). \\\"Any further stay shall be only by order of the district court or the Supreme Court.\\\" Id. However, a district court is not prevented from taking any action in a case simply because an appeal is pending. Idaho Appellate Rule 13 identifies the actions that a district court may take during the pendency of an appeal, unless specifically prohibited by order of this Court. I.A.R. 13(b). The district court retains authority to \\\"[t]ake any action or enter any order required for the enforcement of any judgment or order.\\\" I.A.R. 13(b)(13). Indeed, a district court does not have the power to stay enforcement of a money judgment unless the party against whom judgment is entered posts a cash deposit or supersedeas bond equal to 136% of the judgment. I.A.R. 13(b)(15).\\nAfter judgment was entered quieting title in the Bagleys, the district court entered an award of attorney fees and costs in the amount of $12,225.36. The order regarding attorney fees was entered February 9, 2009. However, the notice of appeal for the quiet title action was filed prior to that order on December 22, 2008. The district court also entered two orders denying the Thomasons' motions to declare certain property exempt from execution. The Thomasons appear to argue that the district court lacked jurisdiction to enter these orders after the notice of appeal was filed. Idaho Appellate Rule 13(b)(13) specifically authorizes a district court to enter any order required for the enforcement of a judgment. Because a cash deposit or bond was not submitted, the district court did not have the authority to stay execution of the judgment. The Thomasons have not advanced an argument that the district court erred when it determined that the personal property was not exempt. Thus, we can find no error in the district court's entry of the orders subsequent to the notice of appeal.\\nTo the extent that the Thomasons argue that the district court erred by granting summary judgment as to their counterclaims, they have failed to identify a genuine issue of material fact as to any one of the three counts advanced therein. We therefore affirm the district court's judgment.\\nD. Equal Protection\\nThe Thomasons argue that the district court violated their equal protection rights by not dismissing the Bagleys' case. This assertion is accompanied by little to no argument. The Thomasons cite two cases, one dealing with access to the judicial system and the other dealing with intentional and arbitrary discrimination. However, the Tho-masons do not explain how they were prevented from accessing the legal system or how they were subject to discrimination. \\\"The first step in an equal protection analysis is to identify the classification at issue.\\\" McLean v. Maverik Country Stores, Inc., 142 Idaho 810, 813, 135 P.3d 756, 759 (2006). Because the Thomasons have utterly failed to identify the classification at issue or argue how their equal protection rights were violated, we will not further consider this claim as \\\"this Court does not consider issues not supported by argument or authority.\\\" Cowan v. Bd. of Comm'rs of Fremont Cnty., 143 Idaho 501, 508, 148 P.3d 1247, 1254 (2006).\\nE. Attorney Fees\\nWe have repeatedly addressed our expectations of self-represented litigants in proceedings before this Court.\\nPro se litigants are not entitled to special consideration or leniency because they represent themselves. To the contrary, it is well-established that courts will apply the same standards and rules whether or not a party is represented by an attorney and that pro se litigants must follow the same rules, including the rules of procedure. Michalk v. Michalk, 148 Idaho 224, 229, 220 P.3d 580, 585 (2009) (citations and quotations omitted); Suitts v. Nix, 141 Idaho 706, 709, 117 P.3d 120, 123 (2005); Twin Falls Cnty. v. Coates, 139 Idaho 442, 445, 80 P.3d 1043, 1046 (2003).\\nBettwieser v. New York Irrigation Dist., 154 Idaho 317, 322, 297 P.3d 1134, 1139 (2013). The Bagleys argue they are entitled to attorney fees on appeal under I.C. \\u00a7 12-121 because this appeal was frivolous as all issues presented were addressed in prior appeals. \\\"To receive an I.C. \\u00a7 12-121 award of fees, the entire appeal must have been pursued frivolously, unreasonably, and without foun dation.\\\" Carrillo v. Boise Tire Co., Inc., 152 Idaho 741, 756, 274 P.3d 1256, 1271 (2012). This appeal meets that standard. This is the Thomasons' third attempt to have this Court overturn the decision quieting title to the property in the Bagleys. To the extent that this Court was able to identify legal issues presented in this appeal, these issues were not properly addressed by authority or argument. Thus, we award attorney fees to the Bagleys.\\nIV. CONCLUSION\\nWe affirm judgment of the district court and award costs and attorney fees on appeal to the Bagleys.\\nChief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES, concur.\\n. It is unclear why this motion was filed. The district court had earlier entered its \\\"Final Order Regarding Claims.\\\" In that order, the district court, relying on the parties' representations in open court that there were \\\"no additional claims pending,\\\" determined that it had \\\"adjudicated all of the claims, rights and liabilities of the parties in this case and no additional matters are pending.\\\"\\n. A different district judge was assigned to the case following the entry of the Final Order Regarding Claims.\\n.The district court did not enter judgment on the pleadings. Rather, the district court treated the motion as a motion for summary judgment. The district court determined that summary judgment dismissing the Thomasons' counterclaims was appropriate for two independent reasons: (1) the Thomasons had abandoned their counterclaims, based upon the hearing which resulted in the earlier Final Order Regarding Claims; and (2) the Thomasons had failed to demonstrate the existence of a genuine issue of material fact as to each of the three counts in their counterclaims.\\n. The Thomasons argued in their first appeal to this Court that the warranty deed was invalid because it did not contain the grantees' address. However, this Court declined to address the issue because it was not raised at the district court level. Bagley I, 149 Idaho at 802, 241 P.3d at 975.\"}"

idaho/4193161.json

@@ -0,0 +1 @@
+"{\"id\": \"4193161\", \"name\": \"FLYING \\\"A\\\" RANCH, INC., an Idaho corporation; Clen Atchley; Emma Atchley; Laura Pickard; Clay Pickard, George Ty Nedrow; and David Tuk Nedrow, Petitioners, v. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, Idaho, a political subdivision of the state of Idaho; Ronald \\\"Skip\\\" Hurt, in his official capacity; and Leroy Miller, in his official capacity, Respondents, v. Karl H. Lewies, Real Party in Interest-Appellant; E.C. Gwaltney, III, and Lana K. Varney, Petitioners, v. Board of County Commissioners for Fremont County, a political subdivision of the State of Idaho; Ronald \\\"Skip\\\" Hurt, in his official capacity; and Leroy Miller, in his official capacity, Respondents, v. Karl H. Lewies, Real Party in Interest-Appellant\", \"name_abbreviation\": \"Flying \\\"A\\\" Ranch, Inc. v. Board of County Commissioners\", \"decision_date\": \"2014-06-17\", \"docket_number\": \"Nos. 40987-2013, 41132-2013\", \"first_page\": \"449\", \"last_page\": \"457\", \"citations\": \"156 Idaho 449\", \"volume\": \"156\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T00:37:30.459898+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice BURDICK, Justices J. JONES, W. JONES, and HORTON concur.\", \"parties\": \"FLYING \\u201cA\\u201d RANCH, INC., an Idaho corporation; Clen Atchley; Emma Atchley; Laura Pickard; Clay Pickard, George Ty Nedrow; and David Tuk Nedrow, Petitioners, v. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, Idaho, a political subdivision of the state of Idaho; Ronald \\u201cSkip\\u201d Hurt, in his official capacity; and Leroy Miller, in his official capacity, Respondents, v. Karl H. Lewies, Real Party in Interest-Appellant. E.C. Gwaltney, III, and Lana K. Varney, Petitioners, v. Board of County Commissioners for Fremont County, a political subdivision of the State of Idaho; Ronald \\u201cSkip\\u201d Hurt, in his official capacity; and Leroy Miller, in his official capacity, Respondents, v. Karl H. Lewies, Real Party in Interest-Appellant.\", \"head_matter\": \"328 P.3d 429\\nFLYING \\u201cA\\u201d RANCH, INC., an Idaho corporation; Clen Atchley; Emma Atchley; Laura Pickard; Clay Pickard, George Ty Nedrow; and David Tuk Nedrow, Petitioners, v. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, Idaho, a political subdivision of the state of Idaho; Ronald \\u201cSkip\\u201d Hurt, in his official capacity; and Leroy Miller, in his official capacity, Respondents, v. Karl H. Lewies, Real Party in Interest-Appellant. E.C. Gwaltney, III, and Lana K. Varney, Petitioners, v. Board of County Commissioners for Fremont County, a political subdivision of the State of Idaho; Ronald \\u201cSkip\\u201d Hurt, in his official capacity; and Leroy Miller, in his official capacity, Respondents, v. Karl H. Lewies, Real Party in Interest-Appellant.\\nNos. 40987-2013, 41132-2013.\\nSupreme Court of Idaho,\\nIdaho Falls, May 2014 Term.\\nJune 17, 2014.\\nKarl H. Lewies, Rexburg, argued in his own behalf.\\nBlake G. Hall, Hall Angell & Starnes LLP, Idaho Falls, argued for respondents.\", \"word_count\": \"4384\", \"char_count\": \"26282\", \"text\": \"EISMANN, Justice.\\nThis is an appeal out of Fremont County from an award of sanctions against the county prosecuting attorney under Rule 11(a)(1) of the Idaho Rules of Civil Procedure. Because there is no legal basis for the award, we reverse.\\nI.\\nFactual Background.\\nOn May 15, 2012, Karl H. Lewies won the primary election for the position of Fremont County Prosecuting Attorney. Because he had no opponent in the general election, which would occur on November 6, 2012, he knew he would be elected as the prosecuting attorney, and he was. He was scheduled to be sworn into office on January 14, 2013.\\nOn November 23, 2012, he filed two petitions for review against the county commissioners of Fremont County. One petition for review was on behalf of Flying \\\"A\\\" Ranch, Inc., and others (\\\"Flying A Ranch case\\\"), and the other petition was on behalf of E.C. Gwaltney, III, and' another (\\\"Gwaltney case\\\"). The petitions sought to overturn the designation by the county commissioners of certain roads as being public roads rather than private roads.\\nOn January 7, 2013, the county commissioners, represented by Blake Hall, the deputy prosecutor hired by the prosecutor that Mr. Lewies had defeated in the primary, filed motions in both cases seeking to have Mr. Lewies disqualified from representing the petitioners in those cases. On the same day, Mr. Lewies filed motions in both cases to withdraw as counsel for the petitioners. In his supporting affidavit, Mr. Lewies stated that he would be sworn in as prosecuting attorney on January 14, 2013, at which time he would have a conflict of interest in continuing to represent the petitioners.\\nIn each of the cases, Mr. Lewies had named two of the commissioners in both their official and individual capacities. On January 7, 2013, the commissioners filed motions in both cases to dismiss the actions against the two commissioners in their individual capacities.\\nOn January 11, 2013, Blake Hall, as a member of the law firm of Nelson Hall Parry Tucker, was substituted as counsel for the county commissioners in place of Blake Hall, as deputy prosecuting attorney. On January 14, 2013, other counsel substituted for Mr. Lewies in the Flying A Ranch case.\\nThe pending motions were heard on January 22, 2013. The court made preliminary rulings that Mr. Lewies could not represent any parties in the two cases; that the county would be awarded attorney fees against him personally for having to file the motion to disqualify; that an action against the two commissioners in their individual capacities could not be joined with a petition for judicial review; and that attorney fees would not be awarded against Mr. Lewies for having named them in their individual capacities. During the hearing, Mr. Lewies contended that Mr. Hall should be disqualified from representing the commissioners and that a deputy prosecutor should represent them. The court stated it would consider that issue at the next scheduled hearing and it would permit Mr. Lewies to submit additional information regarding the award of attorney fees against him. On February 4, 2013, the court entered a written order affirming its preliminary rulings.\\nThe matter was next heard on February 26, 2013. Prior to the hearing, Mr. Lewies had filed an affidavit stating that he had been first contacted by one of the petitioners in the Flying A Ranch case just two days before the expiration of the time for filing a petition for judicial review to challenge the road designation; that he agreed to file a petition to preserve the petitioners' legal rights; that in researching the matter he discovered that a private road belonging to the petitioners in the Gwaltney case, who lived out of state, had also been designated as a public road; that when he contacted them they asked that he file a petition to preserve their rights; and that he had filed both petitions one day before the time period for challenging the road designations would expire. Prior to the hearing, the deputy prosecutor had also filed a notice stating that the county prosecutor's office withdrew its request to represent the county commissioners in the two cases. Therefore, the only matter left to be decided was the award of attorney fees against Mr. Lewies. After the parties argued that issue, the court took the matter under advisement.\\nOn March 29, 2013, the court entered its memorandum decision in both cases awarding the county attorney fees in the sum of $1,185.00 against Mr. Lewies personally pursuant to Rule 11(a)(1). The court entered a final judgment to that effect on April 4, 2013, and Mr. Lewies timely appealed.\\nII.\\nDid the District Court Err in Awarding Rule 11(a)(1) Sanctions Against Mr. Lewies?\\nIn its memorandum decision, the district court stated its reasons for imposing sanctions as follows:\\nA. Lewies' conduct in filing the petitions against the County, failing to promptly withdraw as attorney for Petitioners, and initially refusing to allow Hall to represent the County on these matters, was clearly misguided and amounted to sanctionable misconduct under Rule 11(a)(1), as interpreted by the Idaho appellate courts in Campbell and Lester, .\\nThe relevant portion of Rule 11(a)(1) of the Idaho Rules of Civil Procedure provides as follows:\\nThe signature of an attorney or party constitutes a certificate that the attorney or party has read the pleading, motion or other paper; that to the best of the signer's knowledge, information, and belief after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.\\nThe rule provides two separate grounds for imposing sanctions: (a) frivolous filings and (b) misusing judicial procedures for an improper purpose. The above-quoted portion of the rule is identical to Rule 11 of the Federal Rules of Civil Procedure as amended in 1983. Durrant v. Christensen, 117 Idaho 70, 73, 785 P.2d 634, 637 (1990). Therefore, this Court has adopted the interpretation of the federal rule by Zaldivar v. City of Los Angeles, 780 F.2d 823, 829 (9th Cir.1986), Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 205 (7th Cir.1985), and Eastway Construction Corporation v. City of New York, 762 F.2d 243, 253 (2d Cir.1985), for Rule 11 of the Idaho Rules of Civil Procedure. Durrant, 117 Idaho at 74, 785 P.2d at 638.\\nUnder the federal rule as amended in 1983, \\\"[t]he certificate is addressed to two separate problems, both of which have been identified as major sources of unnecessary litigation delay and expense: first, the problem of frivolous filings; and second, the problem of misusing judicial procedures as a weapon for personal or economic harassment.\\\" Zaldivar, 780 F.2d at 830. That same construction would apply to Rule 11(a)(1). The attorney's or party's signature on a document constitutes two substantive certifications: (a) \\\"that to the best of the signer's knowledge, information, and belief after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law,\\\" and (b) \\\"that it [the document] is not interposed for any improper purpose.\\\" I.R.C.P. 11(a)(1). Both certifications must be accurate in order to comply with the rule. If either of them is not accurate, then the document would be signed in violation of the rule. In that circumstance, \\\"the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction,\\\" which may include an order to pay reasonable attorney fees incurred by the other party because of the filing of the document. I.R.C.P. 11(a)(1).\\n1. The \\\"frivolous filings\\\" clause. The signature of an attorney on a pleading, motion or other paper constitutes a representation that \\\"to the best of the signer's knowledge, information, and belief after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.\\\" I.R.C.P. 11(a)(1). \\\"Prior to the 1983 amendments, [federal] Rule 11 was interpreted to require subjective bad faith by the signing attorney to warrant the imposition of sanctions.\\\" Zaldivar, 780 F.2d at 829. This interpretation was compelled by the wording that there needed to be good ground to support the document \\\"to the best of [the attorney's] knowledge, information, and belief.\\\" Id. The 1983 amendment \\\"represents an intentional abandonment of the subjective focus of the Rule in favor of an objective one. The certificate now tests the knowledge of the signing attorney by a 'reasonableness' standard. The former requirement of willfulness has been deleted.\\\" Id. Therefore, in Durrant we held, in light of these federal decisions, that \\\"reasonableness under the circumstances, and a duty to make a reasonable inquiry prior to filing an action, is the appropriate standard to apply. A showing of subjective bad faith is no longer necessary for the imposition of sanctions....\\\" 117 Idaho at 74, 785 P.2d at 638.\\n2. The \\\"improper purpose\\\" clause. The signature of an attorney on a pleading, motion or other paper constitutes a representation that the document \\\"is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.\\\" I.R.C.P. 11(a)(1). \\\"The 'well grounded in fact and warranted by existing law' clause is coupled with the 'improper purpose' clause by the conjunction 'and.' By signing the pleading or other paper, the attorney certifies to both, thus suggesting that the two clauses are to be viewed independently.\\\" Zaldivar, 780 F.2d at 832. As stated by the court in Eastway Construction:\\nIn light of the express intent of the drafters of the new Rule 11, and the clear policy concerns underlying its amendment, we hold that a showing of subjective bad faith is no longer required to trigger the sanctions imposed by the rule. Rather, sanctions shall be imposed against an attorney and/or his client when it appears that a pleading has been interposed for any improper purpose, or where, after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.\\n762 F.2d at 254 (footnote omitted).\\nIn Durrant, we did not address the \\\"improper purpose\\\" clause, nor have we express ly held that it is independent of the \\\"frivolous filings\\\" clause. However, we have implicitly done so when affirming the trial court's award of Rule 11 sanctions. For example, in Riggins v. Smith, 126 Idaho 1017, 895 P.2d 1210 (1995), we stated, \\\"In light of an attorney's conduct in filing a pleading, the district court must determine whether the attorney exercised reasonableness under the circumstances and made a proper investigation upon reasonable inquiry into the facts and legal theories before signing and filing the document.\\\" Id. at 1021, 895 P.2d at 1214. In affirming the award, we stated that \\\"we find that the district court made sufficient findings of Smith's failure to properly investigate [Plaintiffs] case and of the unreasonableness of Smith's inquiry to support its determination of sanctions against Smith under I.R.C.P. 11(a)(1).\\\" Id. We did not require a finding that the attorney also filed any document for an improper purpose.\\nThis Court has still required a finding of an improper purpose to impose sanctions on appeal under Idaho Appellate Rule 11.2, which has identical wording to Idaho Rule of Civil Procedure 11(a)(1). Fonseca v. Corral Agriculture, Inc., 156 Idaho 142, 152, 321 P.3d 692, 702 (2014). However, we will henceforth construe Appellate Rule 11.2 in the same manner as set forth above for Civil Rule 11(a)(1). There is no reason to construe the identical wording in both rules differently.\\n\\\"The standard of review for an appellate court reviewing a trial court's imposition of sanctions pursuant to I.R.C.P. 11 is one of abuse of discretion.\\\" Campbell v. Kildew, 141 Idaho 640, 649-50, 115 P.3d 731, 740-41 (2005). In making a determination of whether a trial court abused its discretion, this Court considers: (1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the boundaries of this discretion and consistent with the legal standards applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason. Rockefeller v. Grabow, 139 Idaho 538, 545, 82 P.3d 450, 457 (2003). In this case, the district court abused its discretion because it did not act consistently with the applicable legal standards.\\nThe first reason given by the district court for imposing sanctions was \\\"Lewies' conduct in filing the petitions against the County.\\\" Mr. Lewies signed both petitions for judicial review. Before imposing Rule 11 sanctions, \\\"the district court must determine whether the attorney exercised reasonableness under the circumstances and made a proper investigation upon reasonable inquiry into the facts and legal theories before signing and filing the document.\\\" Riggins, 126 Idaho at 1021, 895 P.2d at 1214. That inquiry is what it was reasonable to believe at the time the document was submitted, not what it is reasonable to believe with the wisdom of hindsight or in light of subsequent developments. Sun Valley Shopping Center, Inc. v. Idaho Power Co., 119 Idaho 87, 95, 803 P.2d 993, 1001 (1991). The determination of whether the attorney made a reasonable inquiry before filing the document\\nmay depend on such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the pleading, motion, or other paper was based on a plausible view of the law; or whether he depended on forwarding counsel or another member of the bar.\\nId.\\nIt is uncontradicted that Mr. Lewies was first contacted by one of the petitioners two days before the expiration of the time period for filing a petition for judicial review. The district court did not make any finding that Mr. Lewies failed to make a reasonable investigation into the facts and law before filing the petitions. Rather than focusing upon the reasonableness of Mr. Lewies's inquiry into the facts and law prior to filing the petitions, the court focused upon the fact that he would not be able to represent the petitioners once he became the prosecuting attorney. The court wrote: \\\"Lewies should have known at the time of filing the petitions that he would [be] unable to see either case through to completion \\u2014 -this is undisputed. Even if the Petitioners were acting under time constraints, that does not justify Lewies acting in an ethically questionable manner.\\\" Rule 11 is not a tool for sanctioning conduct that the trial court perceives to be unethical, unwise, or lacking in common sense. Riggins, 126 Idaho at 1021, 895 P.2d at 1214. \\\"To the extent the trial court did not give appropriate focus to its inquiry, it did not act consistently with the legal standards applicable to the choice it had to make.\\\" Sun Valley Shopping Center, 119 Idaho at 95, 803 P.2d at 1001.\\nThe second reason given by the district court for imposing Rule 11 sanctions against Mr. Lewies was his \\\"failing to promptly withdraw as attorney for Petitioners.\\\" The rule \\\"applies only to the signing of a 'pleading, motion, or other paper.'\\\" Riggins, 126 Idaho at 1021, 895 P.2d at 1214. \\\"When determining whether Rule 11 sanctions should be imposed, the trial court must only consider the attorney's conduct in the filing of pleadings, motions or other papers.\\\" Id. Rule 11 sanctions cannot be based upon the failure of an attorney to file a document. Mr. Lewies's failure to move to withdraw sooner than he did cannot be a basis for Rule 11 sanctions. To the extent that the district court based its award of sanctions upon Mr. Lewies's failure to move to withdraw sooner, the court did not act consistently with the legal standards applicable to the choice it had to make.\\nThe third reason given by the district court was Mr. Lewies's conduct in \\\"initially re-fusing to allow Hall to represent the County on these matters.\\\" During the hearing held on January 22, 2013, Mr. Lewies did orally state, 'Well, Your Honor, I'd like to note for the record I don't believe Mr. Hall is properly here representing Fremont County because the Idaho Constitution required the County Commissioners make a public finding of necessity before retaining their own private counsel.\\\" The court did not point to any filed document signed by Mr. Lewies opposing the action of the commissioners in hiring Mr. Hall to represent them. An oral objection cannot be the basis for Rule 11 sanctions because the rule \\\"applies only to the signing of a 'pleading, motion, or other paper.' \\\" Id. To the extent that the district court based its award of sanctions upon Mr. Lewies's oral comment, the court did not act consistently with legal standards applicable to the choice it had to make.\\nIn its order awarding sanctions, the district court also cited this Court's decision in Campbell v. Kildew, 141 Idaho 640, 115 P.3d 731 (2005), and the decision of the Idaho Court of Appeals in Lester v. Salvino, 141 Idaho 937, 120 P.3d 755 (Ct.App.2005). With respect to the Campbell case, the district court wrote, \\\"The Idaho Supreme Court has explained, '[t]he intent of the rule is to grant courts the power to impose sanctions for discrete pleading abuses or other types of litigative misconduct.'\\\" That quote in the context in which it occurred in the Campbell opinion was as follows:\\nRule 11(a)(1) entails certification that:\\nEvery pleading, motion, and other paper [filed with the court is] to the best of the signer's knowledge, information, and belief after reasonable inquiry . well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.\\nPursuant to Rule 11(a)(1), \\\"pleadings, motions, and other papers signed by an attorney or a party must meet certain criteria, and failure to meet such criteria will result in the imposition of sanctions.\\\" The intent of the rule is to grant courts the power to impose sanctions for discrete pleading abuses or other types of litigative misconduct.\\n141 Idaho at 650, 115 P.3d at 741 (citations omitted). The portion quoted by the district court, when read in context, is clearly referring to documents that fail to meet \\\"certain criteria,\\\" which are set forth in Rule 11. The wording quoted by the district court from the Campbell opinion was clearly not creating a broad new category of conduct that would justify the imposition of Rule 11 sanctions. The \\\"litigative misconduct\\\" mentioned was clearly the filing of documents in violation of the rule. The basis of the Rule 11 sanctions in the Campbell case was the filing of a petition to obtain judicial confirmation of a sham arbitration award in order to circumvent a zoning ordinance. Id. at 650-51, 115 P.3d at 741-42.\\nWith respect to the Lester case, the district court wrote, \\\"Rule 11 has been construed as 'a management tool to be used by the district court to weed out, punish and deter specific frivolous and other misguided filings.' \\\" In context, the statement by the Court of Appeals was as follows:\\nThe imposition of attorney fee sanctions for litigative misconduct is governed by I.R.C.P. 11(a)(1), which in relevant part provides:\\n[Rule quoted]\\nRule 11 therefore authorizes the court to impose sanctions, including attorney fees, on its own initiative, upon an attorney who signs a pleading, motion, or other paper which violates the requirements of Rule 11. The signer's signature certifies that to the best of the signers knowledge, information and belief after reasonable inquiry, the pleading, motion or other paper is well grounded in fact, warranted by existing law or a good faith argument for the modification, or reversal of existing law, and not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increases in the costs of litigation. The intent of the rule is to grant the courts the power to impose sanctions for discrete pleading abuses or other types of litigative misconduct. The rule is considered a management tool to be used by the district court to weed out, punish and deter specific frivolous and other misguided filings.\\n141 Idaho at 939-40, 120 P.3d at 757-58 (citations and footnote omitted). The sanctions were imposed for signing discovery responses in violation of the requirements of Rule 11. Id. at 940, 120 P.3d at 758. The Court of Appeals was not expanding Rule 11 beyond the wording of the rule.\\nIn this case, the district court did not apply the provisions of Rule 11 when it imposed the sanctions. It simply took two sentences out of context from the Campbell and Lester opinions and created a new basis for imposing the sanctions that was totally unsupported by the wording of Rule 11. In doing so, the court abused its discretion because it did not act consistently with the applicable legal standards. We therefore reverse the award of sanctions against Mr. Lewies.\\nIII.\\nDid the District Court Err in Failing to Recuse Itself?\\nMr. Lewies contends that Judge Moeller was biased against him and should have recused himself. Mr. Lewies did not file a motion asking the court to disqualify itself. \\\"In the absence of a motion for disqualification, this Court will not review that issue on appeal.\\\" Idaho Dept. of Health & Welfare v. Doe, 150 Idaho 563, 568, 249 P.3d 362, 367 (2011). Because recusal from a case is committed to the sound discretion of the judge, in the absence of a motion there is no decision of the court that can be reviewed, nor was a factual record developed regarding the issue. Id.\\nIV.\\nDid the District Court Err in Stating It Was Appropriate for the County Commissioners to Have Retained Mr. Hall to Represent Them?\\nDuring the hearing on January 22, 2013, Mr. Lewies stated, \\\"Although I personally am disqualified from representing the County, my Deputy is not, and that's quite clear.\\\" The issue of whether the deputy prosecutor could represent the county was then deferred until the next hearing. On February 19, 2013, the deputy prosecuting attorney filed a document stating, \\\"Upon further review of all aspects of the unique facts peculiar to this particular situation and for the considerations stated, the Fremont County Prosecutor's Office withdraws its motion to represent Fremont County in these petitions for judicial review.\\\" At the next hearing, the district court stated that the issue of whether a deputy prosecutor could represent the county was resolved and asked if there were any matters related to that issue that needed to be addressed. Mr. Lewies did not contend that there were.\\nIn its memorandum decision regarding sanctions, the court wrote that \\\"the Court deems appropriate the decision by the County to retain Hall, its former civil deputy, to defend it in these cases.\\\" Mr. Lewies takes issue with this statement in the court's decision because \\\"[t]he parties, and presiding Judge Moeller, all agreed on the record that the matter had been resolved. No ease or controversy existed. The question was no longer justiciable.\\\" He does not state what relief he wants, assuming this was error. Once a final judgment is appealed, the appeal is deemed to include all interlocutory judgments and orders entered prior to the judgment from which the appeal was taken. Thomas v. Thomas, 150 Idaho 636, 641, 249 P.3d 829, 834 (2011). However, the district court's statement that Mr. Lewies seeks to challenge is neither an order nor a judgment. It is simply a passing remark in the court's memorandum decision. Mr. Lewies has not shown how that alleged issue is reviewable on appeal, and therefore we decline to review it.\\nV.\\nIs the County Entitled to an Award of Attorney Fees on Appeal?\\nThe county seeks an award of attorney fees on appeal pursuant to Idaho Code section 12-117. Because the county is not the prevailing party on appeal, it cannot be awarded attorney fees under that statute. Rule Steel Tanks, Inc. v. Idaho Dept. of Labor, 155 Idaho 812, 819, 317 P.3d 709, 716 (2013).\\nVI.\\nConclusion.\\nWe reverse the judgment of the district court and award appellant costs on appeal.\\nChief Justice BURDICK, Justices J. JONES, W. JONES, and HORTON concur.\\n. The court correctly ruled that a civil action to recover against the commissioners personally could not be joined with a petition for judicial review challenging actions taken by the board of county commissioners in its official capacity. Euclid Ave. Trust v. City of Boise, 146 Idaho 306, 309, 193 P.3d 853, 856 (2008); Cobbley v. City of Challis, 143 Idaho 130, 133, 139 P.3d 732, 735 (2006).\"}"

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+"{\"id\": \"428294\", \"name\": \"STATE of Idaho, Plaintiff-Appellant-Cross Respondent, v. Dennis T. DECCIO, Defendant-Respondent-Cross Appellant\", \"name_abbreviation\": \"State v. Deccio\", \"decision_date\": \"2001-10-31\", \"docket_number\": \"No. 26723\", \"first_page\": \"442\", \"last_page\": \"447\", \"citations\": \"136 Idaho 442\", \"volume\": \"136\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T22:55:53.241052+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Judge SCHWAKTZMAN and Judge Pro Tem KOSONEN, concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Appellant-Cross Respondent, v. Dennis T. DECCIO, Defendant-Respondent-Cross Appellant.\", \"head_matter\": \"34 P.3d 1125\\nSTATE of Idaho, Plaintiff-Appellant-Cross Respondent, v. Dennis T. DECCIO, Defendant-Respondent-Cross Appellant.\\nNo. 26723.\\nCourt of Appeals of Idaho.\\nOct. 31, 2001.\\nHon. Alan G. Lance, Attorney General; Karen A. Hudelson, Deputy Attorney General, Boise, for appellant.\\nKaren A. Hudelson argued. Anderson Walker, Moscow, for respondent. John W. Walker argued.\", \"word_count\": \"2270\", \"char_count\": \"14318\", \"text\": \"PERRY, Judge.\\nThe state appeals from the district court's appellate decision affirming the magistrate's order granting Dennis T. Deccio's motion to suppress. Deccio cross-appeals the district court's order denying his motion to dismiss the state's intermediate appeal for lack of appellate jurisdiction. We affirm the district court's decision affirming the magistrate's order granting Deceio's motion to suppress. Therefore, we do not reach Deccio's claim that the district court lacked appellate jurisdiction over the state's appeal and dismiss the cross-appeal as moot.\\nI.\\nFACTS AND PROCEDURE\\nThe facts of this case as found by the magistrate are not disputed. On November 26, 1999, at approximately 3:00 p.m., Moscow police received an anonymous phone report from a female advising dispatch of a suicidal subject identified as Deccio. The female re fused to identify herself, stating only that she was the best friend of Deccio's wife, and she refused to give her address. The female stated that she was calling from a phone at a local bar and that she did not intend to stay there. The female stated that Deecio was intoxicated, had a gun, and intended to kill himself, although she did not indicate that she had personally observed the things she was calling to report. The female merely stated that she had been speaking with Deeeio and Deecio's wife and that Deccio had been drinking all day. She did not indicate further the source of her information as Deccio or Deecio's wife. The female stated that Deccio was headed to the casino in Lewiston and told the dispatcher that Deecio drove a white Subaru. The female also told the dispatcher that Deecio lived on Concord Street in Moscow and indicated that it was unlikely Deccio would be home.\\nAfter attempts to locate Deccio at his home and on the roadways in Moscow proved unsuccessful, the Moscow police dispatcher notified the Latah County sheriffs office that Moscow police had received an anonymous call that Deccio was suicidal and intoxicated. A Latah County sheriffs officer spotted a vehicle matching the description of Deecio's vehicle driving southbound on Highway 95 toward Lewiston and began following the vehicle. The officer continued to follow the vehicle after it left Highway 95 and drove into the town of Genesee. The officer followed the vehicle for over a mile as it made several turns in Genesee but the officer did not observe any law violations or erratic driving. The officer eventually stopped the vehicle, believing that he needed to check the driver's welfare due to the report he received from the Moscow police dispatch. When the officer contacted the driver, Deecio, the officer smelled an odor of alcohol. Deccio was subsequently arrested for driving under the influence (DUI) after failing field sobriety tests. A bottle of vodka was found under the seat of Deccio's vehicle but no weapon was found.\\nThe magistrate granted Deccio's motion to suppress the evidence obtained following the stop of his vehicle, including the field sobriety tests and blood alcohol test. The state appealed to the district court, and Deccio moved to dismiss the state's appeal for lack of appellate jurisdiction. The district court denied Deceio's motion to dismiss the state's appeal and affirmed the magistrate's order granting Deecio's motion to suppress. The state appeals, arguing that the stop of Deccio's vehicle was constitutionally reasonable pursuant to the community caretaking function. Deccio cross-appeals the district court's denial of his motion to dismiss the state's appeal.\\nII.\\nSTANDARD OF REVIEW\\nOn review of a decision of the district court, rendered in its appellate capacity, we examine the record of the trial court independently of, but with due regard for, the district court's intermediate appellate decision. State v. Bowman, 124 Idaho 936, 939, 866 P.2d 193, 196 (Ct.App.1993). The standard of review of a suppression motion is bifurcated. When a decision on a motion to suppress is challenged, we accept the trial court's findings of fact which are supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct.App.1996). Because the magistrate's findings of fact are not challenged, we exercise free review.\\nIII.\\nDISCUSSION\\nThe community caretaking function involves the duty of police officers to help individuals an officer believes may be in need of assistance. State v. Mireles, 133 Idaho 690, 692, 991 P.2d 878, 880 (Ct.App.1999). As stated in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973):\\nLocal police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.\\nId. at 441, 93 S.Ct. at 2528, 37 L.Ed.2d at 714-15.\\nIn analyzing community caretaking function cases, Idaho has adopted a totality of the circumstances test. State v. Wixom, 130 Idaho 752, 754, 947 P.2d 1000, 1002 (1997). The constitutional standard is whether the intrusive action of the police was reasonable in view of all the surrounding circumstances. Id.; see also State v. Godwin, 121 Idaho 517, 519, 826 P.2d 478, 480 (Ct.App.1991). In order for the community caretaking function analysis to apply, an officer must possess a subjective belief that an individual is in need of immediate assistance, although the officer may harbor at least an expectation of detecting or finding evidence of a crime. See In re Clayton, 113 Idaho 817, 818, 748 P.2d 401, 402 (1988); see also State v. Osborne, 121 Idaho 520, 526, 826 P.2d 481, 487 (Ct.App.1991). Other Idaho cases also support a subjective standard in applying the community caretaking function. See Wixom, 130 Idaho 752, 947 P.2d 1000; State v. Fry, 122 Idaho 100, 831 P.2d 942 (Ct.App.1991).\\nThe present case involves the community caretaking function based on an anonymous tip. Although most cases involving anonymous tips center on the issue of reasonable, articulable suspicion rather than the community caretaking function, in each instance the reasonableness of a stop is analyzed under a totality of the circumstances. In analyzing the totality of the circumstances here, the threshold question is the weight, if any, the anonymous information concerning Deccio's condition should be given by the trier of faet.\\nIn Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), the United States Supreme Court held that a dispatcher's report may be based upon a variety of sources, including a completely anonymous tip. However, an anonymous tip standing alone is generally not enough to justify a stop because an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity. State v. Larson, 135 Idaho 99, 101, 15 P.3d 334, 336 (Ct.App.2000). The information from an anonymous tip may provide justification for a stop when the information it contains bears sufficient indicia of reliability or when significant aspects of the tip are sufficiently corroborated by independent police observations. State v. Hankey, 134 Idaho 844, 847-48, 11 P.3d 40, 43\\u201444 (2000); Larson, 135 Idaho at 101, 15 P.3d at 336. See also State v. Wilson, 136 Idaho 270, 32 P.3d 164 (Ct.App.2001).\\nHere, the magistrate held that the anonymous tip, standing alone, did not bear sufficient indicia of reliability justifying the stop of Deecio's vehicle. We have been shown no error in the magistrate's determination. The female caller refused to identify herself or give her address. She merely stated that she was the best friend of Deecio's wife. The female did not call from home but from a phone at a local bar and indicated that she did not intend to stay there, thus avoiding the possibility of being identified or questioned. There was no indication that the female personally observed or had any first-hand knowledge of Deccio's suicidal or intoxicated condition. The female stated only that she had been speaking with Deceio and his wife and that he had been drinking all day. Moreover, the caller did not distinguish what information she obtained directly from Deecio and what hearsay information she obtained from Deceio's wife concerning Deccio. The magistrate found that, although the caller knew where Deccio lived and the type of vehicle he drove, such information was easily obtainable. The female's prediction that Deceio would not be home if officers were to check did not in itself make the tip more reliable.\\nThe magistrate also found that, aside from the officer's observations, there was no significant confirmation of the anonymous female's information. The only information that was corroborated was that a white Subaru was registered to Deecio, that Deccio lived on Concord Street in Moscow, and that Deecio was not at home at the time officers went there. We conclude, as did the magistrate, that the anonymous tip in this case did not bear sufficient indicia of reliability justifying the stop of Deccio's vehicle on the belief that Deccio was in need of immediate assistance. Thus, we uphold the magistrate's determination that the anonymous tip was unreliable and that it did not provide a reasonable basis for the officer to stop Deccio's vehicle under the community caretaking function.\\nAlthough the anonymous tip was primarily the basis of the officer's knowledge concerning Deecio's condition, the officer's personal observations must also be considered as part of the totality of the circumstances analysis. In Hankey, the Idaho Supreme Court held that information contained in an anonymous tip, insufficient by itself to justify a stop, is entitled to some weight when taken together with other facts known to an officer. In that case, an officer observed a blue Mazda pickup truck following a woman and child who were walking on the side of a highway. As the officer continued down the highway, radio dispatch informed him that a possible \\\"domestic\\\" was in progress and gave a description of a blue Mazda pickup at the location the officer had just passed. The officer returned to the location of the pickup and observed it again. Although the anonymous information received by the officer through police dispatch was insufficient, standing alone, to justify a stop, the unusual activity that the officer had initially observed, with the pickup following the woman and child on the shoulder of the highway, sufficiently corroborated the information in the radio dispatch to provide the required reasonableness to stop the vehicle.\\nIn this case, the only details from the anonymous tip the officer corroborated by independent observation were that a white Subaru was being driven by a male in the direction of Lewiston. The officer's personal observations corroborated no other significant aspects of the anonymous tip. The magistrate found that the officer did not observe any law violations or erratic driving while following Deccio, which tended to disprove that Deccio was intoxicated. The magistrate also found that the officer observed Deccio reach under the seat but, aside from this, the officer observed nothing to indicate that Deccio was armed or suicidal. In addition, the vehicle did not continue southbound on Highway 95 toward Lewiston, as the anonymous tip predicted. Rather, the vehicle turned off the highway and proceeded into the town of Genesee, again disproving the information provided. The officer's inability to corroborate significant details of the anonymous tip enabled the magistrate to afford the anonymous tip little weight in its determination that the community caretaking function did not apply in this case.\\nMoreover, the officer did not otherwise independently observe anything that would have led him to believe that Deccio was in need of immediate assistance. There was no indication that something was wrong with Deccio or his vehicle. Deccio was not driving in an unusual manner. To the contrary, the magistrate found that the officer observed no law violations or erratic driving while following or stopping Deccio. The only information the officer possessed concerning Deecio's suicidal or intoxicated condition was obtained through dispatch from the anonymous tip. Therefore, we uphold the magistrate's determination that the officer's personal observations were also insufficient to justify the stop of Deccio's vehicle under the community caretaking function. See Wixom, 130 Idaho at 754, 947 P.2d at 1002.\\nBecause of our disposition of the state's issue on appeal, it becomes unnecessary for us to reach Deecio's claim that the district court erred by denying his motion to dismiss the state's appeal for lack of appellate jurisdiction. Therefore, we dismiss Deceio's cross-appeal as moot.\\nIV.\\nCONCLUSION\\nWe conclude that the anonymous tip was not sufficiently reliable and, therefore, did not provide a reasonable basis for the officer to stop Deccio's vehicle. We further conclude that the officer's personal observations, coupled with the tip, did not provide a reasonable basis to stop Deceio's vehicle. For these reasons, we uphold the magistrate's determination that the community caretaking function was not applicable in this case. Therefore, the district court's decision, affirming the magistrate's order granting Deccio's motion to suppress, is affirmed. We do not reach Deceio's claim that the district court lacked appellate jurisdiction over the state's appeal and dismiss the cross-appeal as moot.\\nChief Judge SCHWAKTZMAN and Judge Pro Tem KOSONEN, concur.\\n. The state does not argue that the officer had reasonable, articulable suspicion to stop Deccio's vehicle for DUI. Instead, the state relies solely on the community caretaking function to justify the stop.\"}"

idaho/4328580.json

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+"{\"id\": \"4328580\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Shepherd REALE, Defendant-Appellant\", \"name_abbreviation\": \"State v. Reale\", \"decision_date\": \"2014-12-04\", \"docket_number\": \"No. 41892\", \"first_page\": \"20\", \"last_page\": \"29\", \"citations\": \"158 Idaho 20\", \"volume\": \"158\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T01:39:28.666955+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge GRATTON, concurs.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Shepherd REALE, Defendant-Appellant.\", \"head_matter\": \"343 P.3d 49\\nSTATE of Idaho, Plaintiff-Respondent, v. Shepherd REALE, Defendant-Appellant.\\nNo. 41892.\\nCourt of Appeals of Idaho.\\nDec. 4, 2014.\\nReview Denied March 3, 2015.\\nSara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy Appellate Public Defender, Boise, for appellant.\\nHon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.\", \"word_count\": \"4897\", \"char_count\": \"29894\", \"text\": \"MELANSON, Judge.\\nShepherd Reale appeals from his judgment of conviction and unified sentence of fifteen years, with a minimum period of confinement of three years, for sexual abuse of a child under sixteen years of age and from the district court's order of restitution. Specifically, Reale alleges that his sentence is excessive and that the district court abused its discretion by awarding restitution to the victim's mother for lost wages resulting from her taking time off from her nightshift nursing job to sleep before court appearances. For the reasons set forth below, we affirm.\\nI.\\nFACTS AND PROCEDURE\\nReale was charged with lewd conduct with a minor child under sixteen years of age and sexual abuse of a child under sixteen years of age. Pursuant to a plea agreement, Reale pled guilty to sexual abuse of a child under sixteen years of age, I.C. \\u00a7 18-5601(l)(b), and the state dismissed the lewd conduct charge. Reale was sentenced to a unified term of fifteen years, with a minimum period of confinement of three years.\\nThe state sought an order of restitution, including $3,315.68 for the lost wages of the victim's mother. At the restitution hearing, the mother testified that she missed all or part of several twelve-hour shifts working as a night charge nurse, totaling ninety-two hours at an hourly rate of $36.04. She further testified that she took the time off from her 7 p.m. to 7:30 a.m. shift to be rested and ready to attend scheduled counseling sessions and court proceedings, most of which occurred between 9 a.m. and 12 p.m. Reale argued that it was not \\\"foreseeable that someone would miss a 12-hour shift the night before a court hearing in order to be there for that hearing in the morning.\\\" The district court subsequently entered a judgment of restitution, which included an award of $3,315.68 to the victim's mother for lost wages. Reale appeals.\\nII.\\nANALYSIS\\nReale argues that the district court abused its discretion in awarding the victim's mother restitution for her lost wages as a result of missing all or part of several night shifts so that she could be rested and prepared for court proceedings the following day. Reale alternatively argues that, even if time taken off work to rest before court proceedings is compensable as lost wages, the district court abused its discretion in awarding the full amount of the requested restitution, as there was not substantial evidence justifying restitution for the five instances where the mother missed her entire twelve-hour shift prior to attending court proceedings. Reale also contends that the district court abused its discretion by imposing an excessive sentence.\\nA. Excessive Sentence\\nReale contends that his unified sentence of fifteen years, with a minimum period of confinement of three years, is excessive. An appellate review of a sentence is based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct.App.2000). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992); State v. Ozuna, 155 Idaho 697, 704, 316 P.3d 109, 116 (Ct.App.2013). A sentence may represent such an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982); Ozuna, 155 Idaho at 704, 316 P.3d at 116. A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary \\\"to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given ease.\\\" State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct an independent review of the record, having regard for the nature of the offense, the character of the offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct.App.1982). When reviewing the length of a sentence, we consider the defendant's entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).\\nReale argues that the district court failed to give adequate consideration to mitigating factors, resulting in an excessive sentence. The mitigating factors he alleges the district court failed to consider include his low risk of recidivism, history of being sexually abused as a child, physical health issues, and grief over his wife's illness and death. The record does not support Reale's claims.\\nAt sentencing, the district court emphasized that its primary sentencing goal was protecting society, noting the disturbing nature of Reale's conduct with the eight-year-old victim. The district court acknowledged that the psychosexual evaluation in the presentence investigation report concluded that Reale was a low risk to reoffend. However, the district court observed that the evaluation also indicated that Reale did not think he had a problem or needed treatment and failed to accept full responsibility for his conduct. Reale minimized and rationalized his conduct and even went so far as to accuse the victim's parents of being \\\"after him\\\" and \\\"setting him up\\\" for the offense by putting Reale in a situation in which he was able to commit the offense. The evaluator also noted that Reale does not believe he needs treatment for his sexual behavior. Moreover, the district court noted that Reale had committed similar conduct in the past with a ten-year-old girl. Thus, although he had no prior convictions, this was not Reale's first sexual offense. The district court further considered Reale's own experience of having been sexually abused as a child, his health problems, and his emotional difficulties associated with his wife's illness and eventual death. However, the district court was not required to ascribe as much weight and significance to these allegedly mitigating factors as Reale contends. Instead, the district court determined that the nature of the offense, Reale's potential problems with treatment in the community, and Reale's prior similar conduct outweighed the allegedly mitigating factors and necessitated a sentence that would protect society and correspond with the seriousness of the offense.\\nThe issue before this Court is not whether the sentence is one that we would have imposed, but whether the sentence is plainly excessive under any reasonable view of the facts. Toohill, 103 Idaho at 568, 650 P.2d at 710. If reasonable minds might differ as to whether the sentence is excessive, we are not free to substitute our view for that of the district court. Id. Having thoroughly reviewed the record in this case, we cannot say that the sentence is plainly excessive under any reasonable view of the facts. Therefore, the district court did not abuse its discretion, and this Court will not disturb the district court's sentencing decision.\\nB. Restitution Award\\nIdaho Code Section 19-5304(2) authorizes a sentencing court to order a defendant to pay restitution for economic loss to the victim of a crime. 'Wictim'' is defined to include the \\\"immediate family of a minor\\\" who is the actual victim of the defendant's criminal conduct. I.C. \\u00a7 19-5304(l)(e)(i). \\\"Economic loss\\\" includes, among other things, \\\"lost wages, and direct out-of-pocket losses or expenses . resulting from the criminal conduct.\\\" I.C. \\u00a7 19-5304(l)(a). The decision of whether to order restitution, and in what amount, is within the discretion of a trial court, guided by consideration of the factors set forth in I.C. \\u00a7 19-5304(7) and by the policy favoring full compensation to crime victims who suffer economic loss. State v. Richmond, 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct.App.2002); State v. Bybee, 115 Idaho 541, 543, 768 P.2d 804, 806 (Ct.App.1989). Thus, we will not overturn an order of restitution unless an abuse of discretion is shown. Richmond, 137 Idaho at 37, 43 P.3d at 796. When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).\\nTo meet the second and third requirements of this analysis, the trial court must base the amount of restitution upon the preponderance of evidence submitted by the prosecutor, defendant, victim, or presentence investigator. I.C. \\u00a7 19-5304(6); State v. Lombard, 149 Idaho 819, 822, 242 P.3d 189, 192 (Ct.App.2010). Thus, the state must prove, by a preponderance of the evidence, a causal relationship between the defendant's criminal conduct and the damages suffered by the victim. I.C. \\u00a7 19-5304(7); State v. Corbus, 150 Idaho 599, 602, 249 P.3d 398, 401 (2011); State v. Hill, 154 Idaho 206, 212, 296 P.3d 412, 418 (Ct.App.2012). Causation consists of actual cause and true proximate cause. Corbus, 150 Idaho at 602, 249 P.3d at 401; State v. Lampien, 148 Idaho 367, 374, 223 P.3d 750, 757 (2009). Actual cause refers to whether a particular event produced a particular consequence. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374, 223 P.3d at 757. A \\\"but for\\\" test of actual cause is used in circumstances where there is only one cause or where two or more possible causes were not acting concurrently. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374, 223 P.3d at 757. Reale does not dispute that his criminal conduct was the actual cause of the mother's economic loss.\\nProximate cause focuses on the foreseeability of the injury, requiring us to determine whether the injury and manner of occurrence were so highly unusual that we can say, as a matter of law, that a reasonable person, making an inventory of the possibilities of harm that his or her conduct might produce, would not have reasonably expected the injury to occur. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374, 223 P.3d at 757; State v. Houser, 155 Idaho 521, 525, 314 P.3d 203, 207 (Ct.App.2013). The causal chain linking a defendant's criminal conduct to the economic loss suffered by a victim may be severed by an independent act or force constituting an intervening, superseding cause. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374, 223 P.3d at 757; Houser, 155 Idaho at 525, 314 P.3d at 207. In general, an intervening, superseding cause replaces the defendant's act as the proximate cause of the victim's injury. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374-75, 223 P.3d at 757-58; Houser, 155 Idaho at 525, 314 P.3d at 207. However, to relieve a defendant of criminal liability, an intervening, superseding cause must be an unforeseeable and extraordinary occurrence. Corbus, 150 Idaho at 602-03, 249 P.3d at 401-02; Lampien, 148 Idaho at 375, 223 P.3d at 758; Houser, 155 Idaho at 525, 314 P.3d at 207. The defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his or her act. Corbus, 150 Idaho at 602-03, 249 P.3d at 401-02; Lampien, 148 Idaho at 375, 223 P.3d at 758; Houser, 155 Idaho at 525, 314 P.3d at 207.\\nThe determination of the amount of restitution, which includes the issue of causation, is a question of fact for the trial court. Corbus, 150 Idaho at 602, 249 P.3d at 401; State v. Hamilton, 129 Idaho 938, 943, 935 P.2d 201, 206 (Ct.App.1997). The district court's factual findings with regard to restitution will not be disturbed on appeal if supported by substantial evidence. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lombard, 149 Idaho at 822, 242 P.3d at 192. Substantial evidence is such relevant evidence as a reasonable mind might accept to support a conclusion. State v. Straub, 153 Idaho 882, 885, 292 P.3d 273, 276 (2013).\\nReale asserts that there was not substantial evidence establishing that his criminal conduct was the proximate cause of the mother's lost wages, as her choice to sleep before court proceedings instead of working was an intervening, superseding cause that severed the causal chain. Additionally, Reale argues that the mother's time off work did not constitute an economic loss, as the mother did not miss work to attend a court proceeding occurring at the same time.\\nEntitlement to restitution for lost wages does not require that the court proceeding and work hours coincide. Instead, our analysis focuses on determining whether there is a causal link between the defendant's conduct and the economic loss suffered. Under the broad, nonexclusive definition of \\\"economic loss\\\" in I.C. \\u00a7 19-5304(1)(a), ex penses and losses incurred that are analogous to lost wages are compensable through restitution. See State v. Olpin, 140 Idaho 377, 379, 93 P.3d 708, 710 (Ct.App.2004) (holding that a loss of productivity resulting from employees having to take time away from their normal duties to investigate the extent of the defendant's criminal conduct was closely analogous to lost wages and was compensable under the statute's broad definition of economic loss); State v. Russell, 126 Idaho 38, 39, 878 P.2d 212, 213 (Ct.App.1994) (holding that, due to the broad definition of economic loss, time spent in court by a self-employed victim during which that person could have been pursuing his vocation constituted an economic loss by analogy to lost wages). Moreover, necessary expenses or losses that the victim incurred in order to address the consequences of the criminal conduct are also included as economic loss. State v. Gonzales, 144 Idaho 775, 778, 171 P.3d 266, 269 (Ct.App.2007); State v. Parker, 143 Idaho 165, 167, 139 P.3d 767, 769 (Ct.App.2006). Court proceedings are obvious consequences of criminal conduct. Thus, a victim is entitled to lost wages for time off that was reasonably necessary to enable him or her to attend court proceedings, even if that time off does not coincide with the actual court proceeding. See Houser, 155 Idaho at 528-29, 314 P.3d at 210-11 (recognizing that a victim may be compensated for lost wages for travel time to and from court proceedings and time spent waiting for court proceedings to begin).\\nDue to the nature of the mother's job as a night charge nurse, her work hours of 7 p.m. to 7:30 a.m. would never coincide with scheduled court proceedings. Indeed, most of the court proceedings in Reale's case occurred between 9 a.m. and 12 p.m. A defendant may not avoid restitution liability simply due to a victim's irregular work hours that do not coincide with the court's hours of operation. Such a stance would severely undermine the policy favoring full compensation to crime victims who suffer economic loss. Moreover, it would lead to perverse results, such as requiring that the mother in this case choose between attending court proceedings that involve the man charged with molesting her daughter or sleeping, as she could not readily or reasonably do both. Instead, as we recognized in Olpin, Russell, and Houser, individual work circumstances will determine whether specific instances of missed work time constitute economic loss that is compensable as restitution. As noted in Houser, \\\"reasonableness is the touchstone.\\\" Id. at 529, 314 P.3d at 211.\\nIn this case, it would not be reasonable to expect the victim's mother to attend court proceedings with little to no sleep after working a demanding job for twelve hours. On the contrary, as noted by the district court, the time the mother took off of work was reasonably necessary to enable her to attend court proceedings. The mother did her best to avoid taking off more time than necessary, switching shifts when able and taking her time off in four-hour blocks when possible. Only when she was unable to switch shifts did she take the time for which she claimed restitution. Such time off was necessary to allow the mother to adequately and reasonably address the consequences of Reale's criminal conduct by attending the court proceedings resulting therefrom. Moreover, it was reasonably foreseeable that, by molesting the mother's minor daughter, the mother would want, and occasionally need, to attend court proceedings both with and without her minor daughter. It was also reasonably foreseeable that the mother would make reasonable accommodations \\u2014 including time off from work to rest and prepare \\u2014 to be able to adequately attend and participate in those proceedings. As a result, substantial evidence supported the district court's determination that Reale's conduct was the true proximate cause of the mother's lost wages.\\nIn addition, the mother's decision to take the time off work reasonably necessary to allow her to attend the court proceedings was not an intervening, superseding cause, as the mother's missed work time was neither unforeseeable nor extraordinary. Just as it is reasonably foreseeable that a crime victim may want to be present at any proceeding that substantially impacts the case, the victim's relationship with the perpetrator, or any further risk to the victim, it is just as foreseeable that the mother of a child victim would want or need to attend the same court proceedings to provide testimony or to support, assist, and comfort her child in understanding and navigating the unfamiliar and intimidating legal proceedings. See Houser, 155 Idaho at 528, 314 P.3d at 210 (holding that a victim's choice to attend most or all court proceedings was not an intervening, superseding cause that severed the link between the defendant's criminal conduct and the victim's lost wages). Accordingly, the mother's decision to take the time off work reasonably necessary to accommodate her attendance at court proceedings was not an intervening, superseding cause.\\nFinally, Reale contends that, even if the mother's lost wages are compensable under the restitution statute as economic loss, there was not substantial evidence to support the full award. This, he claims, is because it was not reasonably necessary for the mother to take her entire twelve-hour shift off work on the five occasions when she was unable to switch shifts. Reale also alleges that the actions of the third parties who refused to switch shifts with the mother constituted intervening, superseding causes that severed the causal chain between his conduct and the mother's lost wages.\\nIn the absence of supporting evidence, a court may not presume that loss of an entire work day is justified for every attendance at a hearing regardless of its duration or time of day. Houser, 155 Idaho at 529, 314 P.3d at 211. However, some work circumstances, if supported by evidence, justify missing entire work days to enable a victim to attend court proceedings. See id. at 529, 314 P.3d at 211 (discussing that in some types of employment, a period of temporary absence might require the employer to have an alternate employee come to the workplace and cover that portion of the work, making it preferable to have the employee miss a full day as opposed to a partial day). In the unusual circumstances presented in this case, it was not unforeseeable that the mother would occasionally be unable to switch shifts, resulting in her having to miss an entire shift. Any working person knows the difficulties attendant with scheduling changes, which are only amplified in demanding and irregular hour jobs such as the mother's. There was also substantial evidence indicating that taking full days off was reasonably necessary when they occurred. The district court noted that the mother \\\"did her best to find coverage for her blocks of time to avoid taking off more time than necessary to be prepared and attentive in court.\\\" This was supported by the mother's testimony that she made every effort to find people to switch shifts and that doing so was difficult, as there were very few people available to fill her position. What constitutes reasonable justification for missing an entire shift changes when dealing with irregular work hours that do not coincide with court proceedings. In the current case, regardless of whether the mother was able to switch shifts or not, her reason for missing work remained constant \\u2014 replacing the sleep time that would be missed by going to the court proceedings in order to be well rested and prepared for those proceedings. This reason, in light of the mother's efforts to avoid missing full shifts, justifies the five instances where missing her full work shift was unavoidable. Accordingly, the mother's inability to switch shifts, resulting in her having to take off full shifts in five instances, was neither unreasonable nor an unforeseeable and extraordinary occurrence constituting an intervening, superseding cause.\\nWe hold that substantial evidence supported the district court's decision to award restitution as well as the amount awarded. As a result, we will not disturb the district court's award of restitution.\\nIII.\\nCONCLUSION\\nReale has failed to show that his sentence was excessive. Additionally, substantial evidence supported the district court's finding that Reale's criminal conduct was the proximate cause of the mother's lost wages. Accordingly, Reale's judgment of conviction and sentence for sexual abuse of a child under sixteen years of age and the order of restitution are affirmed.\\nJudge GRATTON, concurs.\"}"

idaho/4377934.json

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+"{\"id\": \"4377934\", \"name\": \"STATE, Respondent, v. ALBERT SMITH, Appellant\", \"name_abbreviation\": \"State v. Smith\", \"decision_date\": \"1927-05-18\", \"docket_number\": \"No. 4964\", \"first_page\": \"298\", \"last_page\": \"299\", \"citations\": \"44 Idaho 298\", \"volume\": \"44\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:54:57.204419+00:00\", \"provenance\": \"CAP\", \"judges\": \"Budge, Givens and T. Bailey Lee, JJ., concur.\", \"parties\": \"STATE, Respondent, v. ALBERT SMITH, Appellant.\", \"head_matter\": \"(No. 4964.\\nMay 18, 1927.)\\nSTATE, Respondent, v. ALBERT SMITH, Appellant.\\n[256 Pac. 1118.]\\nDonald B. Good and Thomas & Andersen, for Appellant.\\nFrank L. Stephan, Attorney General, and John W. Cramer, Assistant Attorney General, for Bespondent.\", \"word_count\": \"103\", \"char_count\": \"663\", \"text\": \"TAYLOR, J.\\nDefendant appeals from a judgment of conviction of the unlawful possession of intoxicating liquor, and from an order denying a new trial.\\nWe have thoroughly examined the record, and reach the conclusion that there is substantial evidence to support the verdict, and there appears no error affecting a substantial right of the appellant.\\nThe judgment is affirmed.\\nBudge, Givens and T. Bailey Lee, JJ., concur.\"}"

idaho/4378964.json

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+"{\"id\": \"4378964\", \"name\": \"GEM STATE LUMBER COMPANY, a Corporation, Appellant, v. SCHOOL DISTRICT No. 8, IN CARIBOU COUNTY, IDAHO, F. L. SHUFELDT and JOHN STAATS, Respondents\", \"name_abbreviation\": \"Gem State Lumber Co. v. School District No. 8\", \"decision_date\": \"1927-05-26\", \"docket_number\": \"No. 4651\", \"first_page\": \"359\", \"last_page\": \"363\", \"citations\": \"44 Idaho 359\", \"volume\": \"44\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:54:57.204419+00:00\", \"provenance\": \"CAP\", \"judges\": \"Wm. E. Lee, C. J., and Budge, Givens and Taylor, JJi, concur.\", \"parties\": \"GEM STATE LUMBER COMPANY, a Corporation, Appellant, v. SCHOOL DISTRICT No. 8, IN CARIBOU COUNTY, IDAHO, F. L. SHUFELDT and JOHN STAATS, Respondents.\", \"head_matter\": \"(No. 4651.\\nMay 26, 1927.)\\nGEM STATE LUMBER COMPANY, a Corporation, Appellant, v. SCHOOL DISTRICT No. 8, IN CARIBOU COUNTY, IDAHO, F. L. SHUFELDT and JOHN STAATS, Respondents.\\n[256 Pac. 949.]\\nAlbert A. Mattson and Merrill & Merrill, for Appellant.\\nC. E. Melvin, for Respondents.\", \"word_count\": \"614\", \"char_count\": \"3754\", \"text\": \"T. BAILEY LEE, J.\\nThe defendant, Shufeldt, contracted with defendant School District to erect a schoolhouse for the approximate sum of $2,600. At the request of said contractor, plaintiff, Gem State Lumber Company, furnished certain materials which were all actually used in the construction and improvement of said building. The first of such materials were furnished on July 3, 1922, and the remainder thereafter as ordered until the last were delivered on December 19, 1922. They were charged to the contractor on a running account totaling in value $1,785.30. A balance of $585.30 remaining unpaid, plaintiff filed its lien therefor on December 22, 1922. Suit to foreclose was brought joining said defendants and one John Staats, alleged to be a joint contractor with Shufeldt.\\nThe defendant School District submitted proof to the effect that the schoolhouse was completed on October 4, 1922, and accepted on October 7th; that thereafter Shufeldt entered into a second and independent contract to build a protective shanty over the basement steps, build in certain blackboards and cabinets and varnish the floors; which latter work was done, and materials furnished between October 4th and December 19th, after the completion of the first contract.\\nThe district contended that plaintiff's lien of December 22d having been filed more than sixty days after October 7th was void. The court so found, and judgment without attorney's fees was rendered in favor of plaintiff and against defendant Shufeldt, but denying relief as against defendants School District and Staats. Plaintiff has appealed, contending that it had no notice of the completion of the building on October 4th, or of the separate contracts; and the evidence discloses no such notice, actual or constructive. On the contrary, the evidence is clear that the materials were furnished under successive orders from the contractor, and carried to the school site several miles into the country. No unreasonable interval elapsed between orders, and the nature of the materials furnished after October 4th could only have been considered by plaintiff as proper items in the running account.\\nA similar situation was discussed at length by this court in Valley Lumber Co. v. Driessel, 13 Ida. 662, 13 Ann. Cas. 63, 93 Pac. 765, 15 L. R. A., N. S., 299. That case is decisive of the case at bar; and the rule may be generally stated that where a defendant seeks to defeat plaintiff's right to recover in an action to foreclose a mechanic's lien by showing that the material was furnished on two separate and distinct contracts, and that the lien was not filed in time to secure the claim for the material furnished on the first contract, the burden of proof is on the defendant to show either that the plaintiff had actual notice that the material was furnished and used on two separate contracts, or else show such circumstances as would impute to plaintiff constructive notice, and put him on his inquiry to ascertain that two or more contracts did in fact exist.\\nThe judgment as to defendants Shufeldt and Staats is affirmed, but reversed as to defendant School District, and remanded with instructions to the trial court to enter judgment in favor of appellant against the defendant School District in conformity with the prayer of the complaint, together with a proper attorney's fee. Costs awarded appellant to be taxed against respondent district.\\nWm. E. Lee, C. J., and Budge, Givens and Taylor, JJi, concur.\"}"

idaho/4381300.json

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+"{\"id\": \"4381300\", \"name\": \"W. A. THOMAS and E. C. THOMAS, Doing Business Under the Firm Name and Style of THOMAS COMPANY, Appellants, v. CHARLES YOUNG and PAULINE YOUNG, Husband and Wife, Respondents\", \"name_abbreviation\": \"Thomas v. Young\", \"decision_date\": \"1926-03-01\", \"docket_number\": \"\", \"first_page\": \"240\", \"last_page\": \"245\", \"citations\": \"42 Idaho 240\", \"volume\": \"42\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T00:57:04.028577+00:00\", \"provenance\": \"CAP\", \"judges\": \"William A. Lee, C. J., and Wm. E. Lee and Givens, JJ., concur.\", \"parties\": \"W. A. THOMAS and E. C. THOMAS, Doing Business Under the Firm Name and Style of THOMAS COMPANY, Appellants, v. CHARLES YOUNG and PAULINE YOUNG, Husband and Wife, Respondents.\", \"head_matter\": \"(March 1, 1926.)\\nW. A. THOMAS and E. C. THOMAS, Doing Business Under the Firm Name and Style of THOMAS COMPANY, Appellants, v. CHARLES YOUNG and PAULINE YOUNG, Husband and Wife, Respondents.\\n[245 Pac. 75.]\\nJ. Ward Arney, for Appellants.\\nEzra R. Whitla, for Respondents.\", \"word_count\": \"1214\", \"char_count\": \"7009\", \"text\": \"FEATHERSTONE, District Judge.\\nThe plaintiffs filed their complaint in the court below, to which complaint defendants interposed a demurrer, which was sustained and from the order sustaining the demurrer plaintiffs appeal.\\nIn the complaint plaintiffs set out in full the contract under which they claim said commission, which is as follows:\\n\\\"Contract.\\n\\\"Coeur d'Alene, Ida. 3/26/1924.\\n\\\"To Thomas Co. Coeur d'Alene, Idaho.\\n\\\"For and in consideration of one Dollar ($1) the receipt of which is acknowledged I hereby appoint you agent to make sale of the real property herein described as Tax No. 854 Recorded 19 Page 157 Book Deeds, a triangular lot Cor. Sherman & Second Ave., Coeur d'Alene, Idaho, for the price of $6500 upon the following terms $1500 cash, $5000 secured by mortgage thereon for 3 years at 7 per cent, and you are hereby authorized to accept a deposit to be applied on the purchase price, and to execute a binding contract for sale on my behalf.\\n\\\"In case the above-described property is sold or disposed of within the time specified, I agree to make the purchaser a good and sufficient warranty deed to the same and to furnish a complete abstract of title, if required; and it is further agreed that you shall have and may retain from the proceeds arising from such sale 5 per cent commission on the above price; and 5 per cent of all the consideration for which said property is sold over and above price above specified.\\n\\\"This contract to continue thereafter until terminated by my giving unto you as agent 10 days notice in writing.\\n\\\"Signed \\u2014 'CHAS. YOUNG.\\n\\\"BUSINESS LOT.\\nOwner Chas. Young.\\nAddress Coeur d'Alene, Ida.\\nPrice $6500 Cash $1500 Mortgage $5000 at 7 per cent.\\nStreet Sherman Between 2 & 1st or Elec.\\nFront 22-2nd-150 feet on Sherman.\\nLot Tax No. 854 Addition Coeur d'Alene & King.\\nPaved Yes.\\nSidewalk yes Kind Concrete.\\\"\\nPlaintiffs allege that they fully complied with the terms of the contract and while it was in full force and effect and on or about July 15, 1924, they procured a purchaser for said property who was willing, able and ready to purchase said property under the terms of the contract, and further allege, \\\"That defendants after being advised that plaintiffs had found such purchaser ready and willing to buy as aforesaid, wilfully and fraudulently endeavored to evade and repudiate the liability for said commissions.\\\"\\nDefendants demurred on the grounds \\\"That said complaint does not state facts sufficient to constitute a cause of action, in this:\\n\\\"(a) That it is not alleged, stated or shown as against the defendant, Pauline Young, that she made or entered into any contract whatsoever with the plaintiffs to sell the property described in said complaint, either verbal or in writing, or in any manner, or at all, or that she ever authorized or empowered them in any manner whatsoever to sell said property.\\n\\\"(b) That under the laws of the State of Idaho, no contract for the sale of community property, or any interest therein, is valid unless in writing and signed by both the husband and wife, and the contract set out in the complaint does not pretend to have been signed by the defendant, Pauline Young, and is therefore invalid for any purpose.\\n\\\"(c) That said complaint does not allege, state or show that the plaintiffs notified the defendants that they had a purchaser who was ready, willing and able to purchase the property on the alleged terms; or that said complaint does not allege, state or show that the plaintiffs notified the defendants, or either of them, that they had a purchaser who was ready, willing and able to buy on the alleged terms, or that the purchaser which they alleged to have found offered to take said property on the terms alleged, or to make payment thereof in the sum of $1500 cash, or to make a good and sufficient mortgage for three years at seven per cent to secure the balance, and said complaint does not allege that the plaintiffs or any purchaser secured by them, ever offered to purchase said property on the conditions or the terms named.\\\"\\nAnd other grounds which were not passed upon by the trial court.\\nThe court below sustained the demurrer as to the defendant, Pauline Young, on the grounds set forth in subdivision (a), paragraph 1; and as to both defendants on the ground set forth in subdivision (b) of paragraph 1.\\nWe hold that the ruling of the trial judge that the complaint failed to state a cause of action against the defendant, Pauline Young, was correct. This court has heretofore held that an action can only be prosecuted against a married woman where it is her own contract or for the use and benefit of her separate estate (McFarland v. Johnson, 22 Ida. 694, 127 Pac. 911; Jaeckel v. Pease, 6 Ida. 131, 53 Pac. 399; Bank of Commerce v. Baldwin, 12 Ida. 202, 85 Pac. 497), and there is no contention here that she signed the contract or authorized anyone else to sign for her.\\nThere is no dispute that the defendant Charles Young entered into a written contract with the plaintiffs to pay them certain commissions for securing a purchaser for the property in question, and we are of the opinion that the court below erred in holding that the complaint failed to state a cause of action as to Charles Young by reason of the fact that the property in question was community property. He might have been unable to comply with his part of the contract but that would not release him from his liability to pay plaintiffs for their services if they had fully complied with the terms of the contract. However, before the plaintiffs are entitled to recover the commissions claimed for finding a purchaser, they must either obtain a contract from a proposed purchaser able to buy, whereby he is legally bound to buy on the authorized terms or they must produce to the principal a proposed purchaser who is able, willing and ready to buy upon the terms authorized. It is not necessary that the principal and the purchaser actually be brought face to face, but the principal must be notified that such purchaser has been found, and afforded a full opportunity to make a binding contract for the sale of the land on the authorized terms. If the real estate broker complies with either of the conditions stated he is entitled, unless he has stipulated to the contrary, to his commissions although no sale is finally consummated. In this particular the complaint stated a cause of action against Charles Young and the trial court erred in sustaining a demurrer in his behalf.\\nThe judgment in favor of Pauline Young is affirmed and reversed as to Charles Young, and the cause remanded with instructions to proceed in accordance with this ouinion. Costs awarded to appellants.\\nWilliam A. Lee, C. J., and Wm. E. Lee and Givens, JJ., concur.\"}"

idaho/4386205.json

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+"{\"id\": \"4386205\", \"name\": \"BIRD N. HAWLEY, Plaintiff, v. C. A. BOTTOLFSEN, as Governor of Idaho, GEORGE H. CURTIS, as Secretary of State of the State of Idaho, IDAHO WILD LIFE FEDERATION, INC., a Corporation, and G. W. GREBE, Defendants\", \"name_abbreviation\": \"Hawley v. Bottolfsen\", \"decision_date\": \"1940-01-16\", \"docket_number\": \"No. 6727\", \"first_page\": \"101\", \"last_page\": \"108\", \"citations\": \"61 Idaho 101\", \"volume\": \"61\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:17:31.858043+00:00\", \"provenance\": \"CAP\", \"judges\": \"Ailshie, C. J., Givens, J., and Porter and Stevens, District Judges, concur.\", \"parties\": \"BIRD N. HAWLEY, Plaintiff, v. C. A. BOTTOLFSEN, as Governor of Idaho, GEORGE H. CURTIS, as Secretary of State of the State of Idaho, IDAHO WILD LIFE FEDERATION, INC., a Corporation, and G. W. GREBE, Defendants.\", \"head_matter\": \"(No. 6727.\\nJanuary 16, 1940.)\\nBIRD N. HAWLEY, Plaintiff, v. C. A. BOTTOLFSEN, as Governor of Idaho, GEORGE H. CURTIS, as Secretary of State of the State of Idaho, IDAHO WILD LIFE FEDERATION, INC., a Corporation, and G. W. GREBE, Defendants.\\n[98 Pac. (2d) 634.]\\nRalph R. Breshears, for Plaintiff.\\nEdwin Snow, for Defendants.\", \"word_count\": \"2075\", \"char_count\": \"12038\", \"text\": \"BUDGE, J.\\nThe Idaho. Fish and Game Commission Act adopted by vote November 8, 1938, provided for the appointment by the Governor of five commissioners. (Initiative Act, Idaho Sess. Laws, 1939, pp. 1 to 16 ine.) December 10, 1938, Charles C. Gossett, acting Governor appointed the members of the commission pursuant to the act, Bird N. Hawley being appointed, and later qualifying, as commissioner from district number three for the term ending December 9, 1942.\\nOn or about May 4, 1939, the Idaho Wild Life Federation, Inc., filed with C. A. Bottolfsen, as Governor of Idaho, charges in writing against Bird N. Hawley, charging him with inefficiency, negleet of duty, and misconduct in office as commissioner of the Idaho Fish and Game Commission and an answer was filed denying the charges. A public hearing was had upon the charges before Honorable C. A. Bottolfsen, Governor of Idaho, in his office on May 16 and 17 and June 8, 1939, resulting in findings and a decision by the Governor by which Bird N. Hawley was removed from office as commissioner of the Idaho Fish and Game Commission.\\nOn June 8, 1939, G. W. Grebe was appointed by Governor Bottolfsen as Commissioner of the Idaho Fish and Game Commission from district number three.\\nJune 26, 1939, the plaintiff Bird N. Hawley made application to this court for a writ of review, which writ issued July 7, 1939, seeking review and annulment of the Governor's order of removal upon the grounds that his action was irregular, arbitrary, capricious, and in excess of his jurisdiction, and that by removing plaintiff from office he exceeded the jurisdiction and power and authority of the Governor of the state of Idaho, and praying that this court review the record of said proceedings, declare and adjudge the acts of the Governor removing plaintiff from office and appointing G. W. Grebe as commissioner null and void and of no force or effect.\\nThe proceedings herein were held under the authority conferred upon the Governor by section 5, article 4 of the Constitution, providing:\\n' ' The supreme executive power of the state is vested in the governor, who shall see that the laws are faithfully executed. ' ' and the provisions of subdivision (e) of section 1 of the initiative measure known as the Fish and Game Commission Act (Sess. Laws, 1939, p. 5) as follows:\\n\\\"(e) Removal of Commissioners. The Governor may remove a commissioner for inefficiency, neglect of duty, misconduct in office, or upon his removal from the District from which he was appointed, delivering to him a copy of the charges and affording him an opportunity of being publicly heard in person or by counsel, in his own defense, upon not less than ten days' notice. Such hearing to be held publicly in the office of the Governor at Boise, Idaho.\\n\\\"If such commissioner shall be removed, the Governor shall file in the office of the Secretary of State a complete statement of all charges made against such commissioner, and his findings thereon, together with a complete record of the proceedings. ' '\\nIt appears from the record and is conceded that written charges against plaintiff were filed with the Governor; that a copy of the charges was delivered to plaintiff; that plaintiff was afforded an opportunity of being publicly heard, both in person and by his counsel, in his own defense, upon not less than ten days' notice; that such hearing was held in the office of the Governor at Boise, Idaho, and that the Gov ernor filed in the office of the Secretary of State a complete statement of all charges made against plaintiff, and his findings thereon, together with a complete record of the proceedings.\\nThe grounds set forth in the petition praying review and annulment were to the effect, (1) that the charges upon which the Governor acted are not legal cause for plaintiff's removal, and (2) that there was no evidence adduced to sustain the charges upon which the order of removal is based.\\nPursuant to the writ issued by the court, return was made by the Secretary of State and the entire record transmitted to this court, and a motion to quash the writ was then filed. Defendants' position that the scope of the inquiry in this proceeding is limited to the question of whether the Governor regularly pursued the authority and discretion imposed upon him by law, reducing the controversy to two questions: First \\u2014 Do the charges as filed constitute charges of inefficiency, neglect of duty, or misconduct in office? \\u2014 and, second \\u2014 \\\"Was any evidence adduced to support the charges sustained by the order of removal? \\u2014 appears to be correct in view of the authorities hereinafter referred to.\\nThe function of the writ of review is stated in section 13-208, I. C. A., as follows:\\n\\\"The review upon this writ can not be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.''\\nThe foregoing statute has been before this court on numerous occasions and the pronouncements have been consistently in harmony with the foregoing statute and to the effect that the sole business of this court is to inquire into the single question of jurisdiction. That is, as long as the action of the Governor in removing an officer is within the limits of the power conferred upon him, that is, if he acted within his jurisdiction, the courts will not interfere to arrest his action or to review the proceedings, except to determine the question of jurisdiction. The Governor, so far as the courts are concerned, is the exclusive judge of the sufficiency of the proof of the charges, and the court will not review the- facts upon which he acted except for the purpose of ascertaining if there is any evidence which supports his findings and order. In State Insurance Fund v. Hunt, 52 Ida. 639, 17 Pac. (2d) 354, the rule is stated:\\n\\\"Upon application for a writ of review, the sole business of this court is to inquire into the single question of jurisdiction. (C. S. see. 7249 (Now sec. 13-208 I. C. A.), Beus v. Terrell, 46 Ida. 635, 269 Pac. 593; Mays v. District Court, 40 Ida. 798, 237 Pac. 700.)\\\"\\nIn Beus v. Terrell, 46 Ida. 635, 269 Pac. 593, we held:\\n\\\"As set out in C. S. sec. 7249 quoted supra, the review in such cases is limited to the sole question of whether or not the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer. ' '\\nIn Lansdon v. State Board of Canvassers, 18 Ida. 596, 111 Pac. 133, this court said:\\n\\\"A writ of review brings up the record of the tribunal, board or body whose acts are to be examined, and is issued for the purpose of reviewing the law applicable to the case, instead of examining the facts of the case, except in so far as an examination of the facts is necessary in the determination of the single question of jurisdiction. The purpose of the review is to determine primarily the law applicable to the case rather than the facts of the case.\\\" (Emphasis inserted.)\\nIn McConnell v. State Board of Equalization, 11 Ida. 652, 83 Pac. 494, the rule is quite clearly stated:\\n\\\"Under a writ of review, errors and mistakes of judgment of a board as to the value of property that it is authorized to assess cannot be reviewed; neither can such writ be invoked for the purpose of reviewing the facts upon which the inferior tribunal, board or officer acted except for the purpose of ascertaining the fact of jurisdiction.\\n\\\"The provisions of such writ is limited to a review of questions of law involved in the matter, and the court must confine its inquiry to the question as to whether or not the action complained of was beyond and in excess of the jurisdiction conferred on the tribunal, board or officer.\\\" (Emphasis inserted.)\\nIn Sweeny v. Mayhew, 6 Ida. 455, 56 Pac. 85, it is said:\\n\\\"As to how far the evidence may be considered in a proceeding of this kind, the rule is correctly and succinctly stated in 4 Encyclopedia of Pleading and Practice commencing at page 262, as follows: 'An exception to the rule that the sufficiency of the evidence will not be reviewed is made when the question is whether jurisdictional facts were or were not proved. This exception arises out of the most important office and function of the writ \\u2014 the keeping of inferior courts and tribunals within proper bounds. \\u2022 If the decision of the inferior tribunal as to the sufficiency of the evidence to establish jurisdictional facts were not reviewable, the writ of certiorari would be of no avail as a remedy against an assumption of jurisdiction. And, for the purpose of enabling the reviewing court to determine whether jurisdictional facts were established, it will require a return to be made of the evidence upon which such facts are based. ' ' '\\nIn Northwest Light etc. Co. v. Alexander, 29 Ida. 557, 160 Pac. 1106, the court said:\\n\\\"We think the rule to be well settled that where state elective officers are invested with certain discretion, involving the exercise of judgment in the performance of their official duties, no court has the right by writ of certiorari to interpose its judgment or influence their action. To do so would be usurpation.\\\"\\nThe rule appears to be briefly summed up in People v. Coffey, 237 Mich. 591, 213 N. W. 460, 52 A. L. R. 1, wherein it is stated:\\n' ' The governor holds an exalted office. To him and to him alone the soverign people have committed the power and right to determine the facts in the proceeding before us. His decision of disputed questions of fact is final. His finding of fact, if it has evidence to support it, is conclusive on this court. It would be unbecoming in us to impugn his motives and unseemly and unlawful to invade his discretion.\\\" (Emphasis inserted.)\\nSee, also, First Nat. Bank of Weiser v. Washington County, 17 Ida. 306, 105 Pac. 1053; Utah Association of Credit Men v. Budge, 16 Ida. 751, 102 Pac. 390, 691; State v. McGarry, 21 Wis. 496; Harrington v. Smith, 114 Kan. 262, 217 Pac. 270; State v. Sanchez, 32 N. M. 265, 255 Pac. 1077, 1087; Cameron v. Parker, 2 Okl. 277, 38 Pac. 14.\\nWe believe the sound doctrine which may be gathered from the foregoing and other authorities is that where the record of the evidence is part of the record furnished on writ of review, this court will examine the evidence to determine whether the Governor has regularly pursued his jurisdiction only to the extent of ascertaining whether evidence was adduced, which, in the mind of a reasonable person, if uncontradicted would support a legal cause of removal charged.\\nPlaintiff urges that the charges upon which the Governor acted are not legal cause for removal, are not sufficient in law, are too general and are imperfectly stated. The manner of pleading was not questioned in any way at any time until the proceedings reached this court on review.\\nExamination of the record discloses that the charges filed state grounds of removal specified in subdivision (e) of section 1, Fish and Game Commission Act (Sess. Laws 1939, p. 5) all relating to the duties of a commissioner of the Idaho Fish and Game Commission and to the conduct of the plaintiff in such office. Among the grounds specified in subdivision (e) section 1 of the Fish and Game Commission Act the general course of conduct termed \\\"inefficiency\\\" and \\\"misconduct in office\\\" on the part of plaintiff in matters connected with his official duties as commissioner were both generally charged and certain acts particularly set forth, and the record discloses that there is evidence therein which may reasonably be said to support such charges. It follows therefore that the proceedings below must be affirmed. It is so ordered.\\nAilshie, C. J., Givens, J., and Porter and Stevens, District Judges, concur.\"}"

idaho/4404098.json

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+"{\"id\": \"4404098\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Anthony Carmen GALAVIZ, Defendant-Appellant\", \"name_abbreviation\": \"State v. Galaviz\", \"decision_date\": \"1983-02-08\", \"docket_number\": \"No. 14062\", \"first_page\": \"328\", \"last_page\": \"332\", \"citations\": \"104 Idaho 328\", \"volume\": \"104\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:13:41.634348+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALTERS, C.J., and BURNETT, J., concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Anthony Carmen GALAVIZ, Defendant-Appellant.\", \"head_matter\": \"658 P.2d 999\\nSTATE of Idaho, Plaintiff-Respondent, v. Anthony Carmen GALAVIZ, Defendant-Appellant.\\nNo. 14062.\\nCourt of Appeals of Idaho.\\nFeb. 8, 1983.\\nDouglas R. Whipple of Herman E. Bedke, Burley, for defendant-appellant.\\nDavid H. Leroy, Atty. Gen. by Lynn E. Thomas, Sol. Gen., and Lance D. Churchill, Deputy Atty. Gen., for plaintiff-respondent.\", \"word_count\": \"2478\", \"char_count\": \"15032\", \"text\": \"SWANSTROM, Judge.\\nAnthony Carmen Galaviz and a companion committed two armed robberies in the city of Burley on July 23, 1978. Apprehended that day with a pistol and the stolen money in his possession, Galaviz later pled guilty to both counts of robbery. After reviewing the presentence report, which indicated that Galaviz, then twenty-two years of age, had a prior juvenile and misdemeanor record, the district court sentenced him to two five-year concurrent terms for the robberies on September 1, 1978. In addition, pursuant to I.C. \\u00a7 19-2520, the court imposed a three-year term, to be served consecutively, for Galaviz's use of a firearm during the crimes.\\nNearly two years later, Galaviz filed a motion in the district court under Idaho Criminal Rule 35 to correct what he claimed was an illegal sentence. Galaviz based his claim on the Double Jeopardy Clause of the Fifth Amendment, asserting that the court illegally had exacted multiple penalties by imposing the two five-year terms for armed robbery and the additional sentence for the use of a firearm. Galaviz also asserted that the imposition of an enhanced sentence under I.C. \\u00a7 19-2520 violated I.C. \\u00a7 18-301. Finally, Galaviz challenged his sentence on due process grounds, contending that the information charging him with armed robbery did not give proper notice of the state's intention to rely on I.C. \\u00a7 19-2520 for enhancement of his sentence. Galaviz contended that the lack of notice deprived him of the basis for making a knowing and intelligent decision to plead guilty to the charges.\\nThe district judge conducted a hearing and considered each of the issues raised by Galaviz. After the court entered its order denying Galaviz's motion, this appeal was taken and the same issues are raised again. We affirm the order of the district court.\\nI\\nThe Fifth Amendment's Double Jeopardy Clause applies to the states through the Fourteenth Amendment. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The guarantee against double jeopardy encompasses three distinct constitutional protections. \\\"It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishment for the same offense.\\\" North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). Galaviz contends that by imposing an \\\"additional\\\" sentence for his use of a firearm the district court violated the third of these guarantees.\\nGalaviz predicates this argument upon the language of the judgment of conviction. After imposing a five-year term for each count of robbery, the judgment continues:\\nIT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant receive an additional three (3) years pursuant to I.C. \\u00a7 19-2520 for the use of a firearm in the commission of the aforesaid crimes, said term to run consecutive to Counts I & II.\\nGalaviz argues that the use of the word \\\"additional\\\", in this paragraph shows that he was illegally sentenced twice for the same underlying offense.\\nOur Supreme Court has noted that I.C. \\u00a7 19-2520 does not define or create a separate offense, but is merely a sentence enhancing statute that comes into play after a defendant is convicted of one of the enu merated offenses. State v. Cardona, 102 Idaho 668, 670, 637 P.2d 1164, 1166 (1981). In recent years many state and federal courts have had occasion to address constitutional challenges to statutes which, like I.C. \\u00a7 19-2520, provide for enhanced sentences for felonies committed with the aid of firearms or other deadly weapons. In each case such statutes have survived arguments that the imposition of enhanced penalties violates the constitutional prohibition against multiple punishments. See e.g., May v. Sumner, 622 F.2d 997 (9th Cir.1980); Cordova v. Romero, 614 F.2d 1267 (10th Cir.1980); State v. Bly, 127 Ariz. 370, 621 P.2d 279 (1980); People v. Henry, 14 Cal.App.3d 89, 91 Cal.Rptr. 841 (1970); State v. Davison, 614 P.2d 489 (Mont.1980); Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975); State v. Gabaldon, 92 N.M. 230, 585 P.2d 1352 (N.M.App.1978); State v. Foster, 91 Wash.2d 466, 589 P.2d 789 (1979).\\nThe rationale the courts generally have adopted, in upholding enhanced penalty statutes, is that the statutes do not provide for multiple penalties but rather provide for a single more severe penalty when an offense is committed with a deadly weapon. In May v. Sumner, supra, for example, the appellant's punishment on each of two counts of robbery was enhanced pursuant to Cal.Pen.Code \\u00a7 12022.5 because the jury found that he had used a firearm during the commission of both crimes. Rejecting a double jeopardy attack on the statute, the court concluded:\\nThe double jeopardy clause does not limit the legislature's power to impose sentences for a given crime. It is uncontested that the California legislature could have created a single offense which provided one sentence for simple robbery, a greater sentence for robbery with a deadly weapon, and a still greater sentence if the deadly weapon were a firearm. California chose to accomplish this result by two statutes instead of one. To strike down the scheme adopted by California in this case would \\\"operate not as a substantive or penological restriction, but as a literary critique of the legislature.\\\" Cordova v. Romero, supra at 1269, quoting Note, Twice in Jeopardy, 75 Yale L.J. 262, 302 (1965).\\n622 F.2d at 999.\\nThe U.S. Supreme Court recently has laid to rest any doubt about the result reached in the cases cited above. In Missouri v. Hunter, - U.S. -, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Supreme Court reversed a decision by the Missouri Supreme Court, which had held that Hunter could not be convicted in the same trial of both robbery in the first degree and armed criminal action, where the same acts of the defendant had been used to convict him of each charge. The U.S. Supreme Court upheld Missouri statutes which provided cumulative punishment for two separate crimes arising out of the same criminal conduct. The Court held that where the cumulative punishment is within the legislature's intent, it does not violate the Double Jeopardy Clause of the Fifth Amendment. At page 678 of 103 S.Ct., the Supreme Court said:\\nWith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.\\nAt page 678 of 103 S.Ct., the Court summarized its holding as follows:\\nWhere, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the \\\"same\\\" conduct under Blockburger [v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306] a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.\\nThe Idaho legislature has chosen to fix different penalties for the crime of robbery \\u2014 a lesser penalty where the crime is committed without the use of a deadly weapon, and a greater one where a deadly weapon is involved. The legislature has adopted two statutes rather than one to accomplish this result.\\nThe Idaho legislature clearly has intended to authorize the courts, under I.C. \\u00a7 19-2520, to impose additional punishment for robbery where that crime is accomplished with use of a firearm. The penalty actually imposed upon Galaviz was well within the limits intended by the legislature. Consequently we hold that the sentence in this case did not violate the Double Jeopardy Clause of the Fifth Amendment.\\nII\\nWe next consider Galaviz's contention that imposing a five-year sentence for robbery under I.C. \\u00a7 18-6503 and an additional, consecutive three-year term under \\u00a7 19-2520 violated \\u00a7 18-301 of the Code.\\nIn State v. Horn, 101 Idaho 192, 197, 610 P.2d 551, 556 (1980), our Supreme Court said:\\nIdaho's multiple punishment statute, I.C. \\u00a7 18-301, exceeds the scope of the constitutional constraints on double jeopardy. Under \\u00a7 18-301 a defendant cannot be punished twice for the same act, rather than the same crime. If defendant's single action creates liability under two criminal statutes, defendant can only be punished under one statute. See State v. Brusseau, 96 Idaho 558, 532 P.2d 563 (1975). [Emphasis original.]\\nIt is important to note, however, that this statement by the court was part of a discussion as to whether the defendant Horn could be convicted for two crimes, robbery and kidnapping, arising out of one criminal episode. Although Horn had been convicted of each crime, the district judge imposed a sentence only for robbery. On appeal the Supreme Court upheld both convictions and the sentence.\\nIn our view, I.C. \\u00a7 18-301 prohibits double punishment where a single act results in the commission of two or more crimes as defined by the legislature. Here there was only one crime \\u2014 the robbery. As noted above, the legislature did not define or create any separate offense by enacting I.C. \\u00a7 19-2520; it simply provided enhanced punishment where certain existing crimes were committed by use of firearms.\\nMoreover, to the extent that there is any conflict between \\u00a7 18-301 and \\u00a7 19-2520, the latter statute is a more recent, special enactment. It specifically applies to the particular circumstances of this case. As such, under well-established principles of statutory construction, it must be controlling over the older and more general statute. See Owen v. Burcham, 100 Idaho 441, 599 P.2d 1012 (1979); State v. Roderick, 85 Idaho 80, 375 P.2d 1005 (1962). See also People v. Henry, 14 Cal.App.3d 89, 91 Cal.Rptr. 841 (1970). We hold that \\u00a7 18-301 is not a bar to the imposition of the enhanced sentence in this case.\\nIll\\nFinally, we turn to the contention that the prosecutor's information in this case failed to inform Galaviz of the state's intention to seek enhanced punishment under I.C. \\u00a7 19-2520. Our Supreme Court has stated that a criminal information must \\\"properly inform an accused of the exact nature of the charge against him, so that (1) the accused has the means to prepare a proper defense, and (2) he can protect himself against subsequent prosecution based on the commission of the same acts.\\\" State v. McKeehan, 91 Idaho 808, 814, 430 P.2d 886, 892 (1967). Not only is this specificity requirement statutory, but it is also rooted deeply in constitutional guarantees. See State v. Gumm, 99 Idaho 549, 551, 585 P.2d 959, 961 (1978). The Fourteenth Amendment to the United States Constitution requires that an accused be given notice of the specific charge against him and be given \\\"a chance to be heard in a trial of the issues raised by that charge.\\\" Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948).\\nThe information filed against Galaviz contains two counts, both of which clearly and unequivocally accuse him of the crime of robbery, and set forth the essential facts of the crimes. Both counts also specify that Galaviz used a pistol in commission of the crimes. As earlier noted, I.C. \\u00a7 19-2520 does not define a separate substantive offense. It is intended only to provide for an enhanced penalty after the accused has been convicted of the underlying offense. Because the statute does not create a substantive offense, it was not necessary for the information to refer specifically to the statute.\\nIn State v. Angus, 581 P.2d 992 (Utah 1978), the Utah Supreme Court addressed an argument similar to the one Galaviz has made here.\\nWe have no disagreement with the proposition that fairness and due process of law require that the information against [the accused] be sufficient to clearly state the charge and bring him within the statutory penalty therefor. But his argument that the information must specifically set forth that the enhancement of penalty would be imposed if he was convicted is without merit. The punishment for a crime is not and has never been considered a part of the pleading charging a crime. The information is sufficient if it alleges either: (1) that the defendant is being charged under the enhancement statute, or (2) that a firearm was used in the commission of the offense charged in the information. The trial by jury is to determine the guilt or innocence of the defendant. After conviction, the penalty to be imposed is an entirely separate proposition to be determined by the court as a matter of law on the basis of the penalty prescribed by the statutes.\\n581 P.2d at 995; accord, State v. Davison, 614 P.2d 489, 497 (Mont.1980).\\nWe agree with the view expressed by the courts in Angus and Davison. Moreover, in this case, the district judge specifically found that, at Galaviz's arraignment and before the guilty plea was entered, Galaviz had been advised by his own attorney, as well as by the court, that the penalty enhancement statute would apply. When the defendant's plea was taken, the judge again discussed I.C. \\u00a7 19-2520 with Galaviz to determine that he understood the possible consequences of his plea. We uphold the judge's conclusion that Galaviz was fully aware of the enhanced penalty provisions of I.C. \\u00a7 19-2520 before he entered his guilty plea, and that Galaviz made a knowing and intelligent decision to plead guilty.\\nThe judgment of conviction and sentences are affirmed.\\nWALTERS, C.J., and BURNETT, J., concur.\\n. Idaho Code \\u00a7 19-2520 provides in part:\\nAny person convicted of a violation of . . [enumerated felonies], or 18-6501 (robbery defined), Idaho Code, who carried, displayed, used, threatened, or attempted to use a firearm or other deadly weapon while committing the crime, shall, in addition to the sentence imposed for the commission of the crime, be imprisoned in the state prison for not less than three (3) nor more than fifteen (15) years. Such additional sentence shall run consecutively to any other sentence imposed for the above cited crimes.\\nAt the time relevant to Galaviz's convictions, this statute applied to felonies involving firearms only, not other deadly weapons.\\n. Idaho Code \\u00a7 18-301 states:\\nAn act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.\"}"

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+"{\"id\": \"4408040\", \"name\": \"MAGIC VALLEY POTATO SHIPPERS, Plaintiff-Appellant, v. CONTINENTAL INSURANCE and Merrill Paslay Agency, Defendants-Respondents\", \"name_abbreviation\": \"Magic Valley Potato Shippers v. Continental Insurance\", \"decision_date\": \"1987-06-16\", \"docket_number\": \"No. 16622\", \"first_page\": \"1073\", \"last_page\": \"1077\", \"citations\": \"112 Idaho 1073\", \"volume\": \"112\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T02:38:05.230851+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHEPAED, C.J., and DONALDSON, BISTLINE and HUNTLEY, JJ., concur.\", \"parties\": \"MAGIC VALLEY POTATO SHIPPERS, Plaintiff-Appellant, v. CONTINENTAL INSURANCE and Merrill Paslay Agency, Defendants-Respondents.\", \"head_matter\": \"739 P.2d 372\\nMAGIC VALLEY POTATO SHIPPERS, Plaintiff-Appellant, v. CONTINENTAL INSURANCE and Merrill Paslay Agency, Defendants-Respondents.\\nNo. 16622.\\nSupreme Court of Idaho.\\nJune 16, 1987.\\nHarry C. DeHaan, Twin Falls, for plaintiff-appellant.\\nQuane, Smith, Howard & Hull, Boise, for defendant-respondent Continental Ins., David E. Day argued.\\nHarwood & McColl, Boise, for defendant-respondent Paslay Agency, Bart W. Harwood argued.\", \"word_count\": \"2187\", \"char_count\": \"13605\", \"text\": \"BAKES, Justice.\\nThis is an appeal by Magic Valley Potato Shippers (MVP) from summary judgment orders entered in favor of respondents Continental Insurance (Continental) and the Merrill Paslay Agency (Paslay). After reviewing the facts in a light most favorable to MVP, the party opposing the motion, Jones v. Jones, 100 Idaho 510, 601 P.2d 1 (1979), we have concluded that the district court did not err in granting summary judgment to Continental Insurance and the Merrill Paslay Agency. Meridian Bowling Lanes, Inc. v. Meridian Athletic Ass'n, 105 Idaho 509, 670 P.2d 1294 (1983).\\nThe factual record produced in this case is based on affidavits submitted by the parties. Those affidavits demonstrate that MVP entered into a contract with Harper to purchase a quantity of potatoes which were stored in Harper's storage facility. MVP initiated performance under the contract by picking up approximately $25,000 worth of Harper's potatoes; however, MVP failed to pay for those potatoes. MVP notified Harper that it would not pick up the balance of the potatoes covered by the contract alleging the potatoes were nonconforming. Due to MVP's failure to perform under the sales contract, the potatoes which were not picked up deteriorated and could not be resold, and Harper was unable to pay its bank loans and lost its farm property to the bank. As a result, Harper sued MVP for breach of contract in failing to (1) pay for the $25,000 worth of potatoes which they did pick up; (2) breach of contract for the balance of the potatoes which they had contracted to buy but refused to pick up; (3) consequential damages; (4) lost income; and (5) punitive damages.\\nMVP owned two insurance policies issued by Continental and sold by Paslay. The primary policy was a comprehensive business liability policy and the second was a comprehensive umbrella liability policy. MVP tendered the defense of the action to defendant respondent Continental pursuant to the liability policies. Continental refused to defend the suit, asserting several defenses, including that the Harper v. MVP lawsuit was an action arising from contractual liability and was specifically excluded under the policy coverage. MVP defended the suit by Harper and lost. Harper recovered $220,000 in compensatory damages, $130,000 in punitive damages, and $1,500 in costs and $48,000 in attorney fees.\\nMVP then brought suit against Continental and Paslay claiming (1) MVP was covered by the Continental policies; (2) that Continental had a duty to defend the suit and was therefore liable for attorney fees incurred; (3) Continental's refusal to defend the suit had resulted in the accumulation of additional damages for which Continental was liable; and (4) if Continental is not liable, then Paslay is liable to MVP based on Paslay's representations as to the extent of Continental's policy coverage.\\nThe claim against Paslay was based on the following allegations: Paslay acted as MVP's insurance agent for a number of years. MVP had previously purchased liability insurance through Paslay from the National Farmers Union Property & Casualty Company (NFU). In 1984, MVP, at Paslay's suggestion, replaced the NFU policies with the policies from Continental. At this time Paslay represented that the Continental policy's coverage was as extensive as the NFU policies they replaced. MVP claims that the NFU policy would have covered MVP's liabilities in the Harper suit, and thus Paslay misrepresented the extent of the Continental policy. Paslay defended by claiming that the Continental policy was as comprehensive as the NFU policy. The respondents filed motions for summary judgment.\\nOral arguments and affidavits were presented to the court for its consideration. After reviewing the record and hearing oral argument the district court granted summary judgment to Continental stating that \\\"the original case [Harper v. MVP] in this matter giving rise to this particular case was a case dealing with contract issues, and that the insurance policy issued by Continental has a specific exclusion for contractual liability, and therefore find that the summary judgment motion filed by Continental is well-founded and will issue that summary judgment.\\\" The district court also granted summary judgment to Paslay stating that \\\"I find that the [Continental] policy was as extensive as the previous [NFU] policy.\\\"\\nI\\nThe relevant portions of the primary Continental policy state:\\n\\\"COVERAGE B \\u2014 PROPERTY DAMAGE LIABILITY\\n\\\"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of\\n\\\"B. property damage \\\"to which this insurance applies, caused by an occurrence____\\n\\\"Exclusions\\n\\\"This insurance does not apply:\\n\\\"(a) to liability assumed by the Insured under any contract or agreement .;\\n\\\"(k) to property damage to\\n\\\"(3) property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control;\\n\\\"(m) to loss of use of tangible property which has not been physically injured or destroyed resulting from \\\"(1) a delay in or lack of performance by or on behalf of the named insured of any contract or agreement, .\\n\\\"VI. DEFINITIONS\\n\\\"When used in this endorsement (including endorsements forming a part hereof):\\n\\\" 'occurrence' means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured;\\n\\\" 'property damage' means (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.\\\" (Emphasis added.)\\nMVP's claim against Continental can only be viable if the Harper v. MVP lawsuit involved \\\"property damages\\\" caused by an \\\"occurrence.\\\" Further, from its clear wording, the insurance policy excludes coverage to MVP of \\\"liability assumed by the insured under any contract or agreement____\\\" MVP argues that, because it failed to pick up the potatoes identified in the contract, those potatoes spoiled and that this resulted in property damage to Harper which was, at least in part, the underlying basis for the Harper v. MVP lawsuit.\\nA review of the record does not support MVP's claim that at least part of the underlying Harper/MVP lawsuit involved property damage. The amended complaint filed in the Harper/MVP suit shows that Count I was for breach of contract for failure of MVP to pay for the potatoes picked up by MVP. Count II was for breach of contract seeking damages for the potatoes covered by the contract which MVP had failed to pick up. Counts III and IV sought consequential and economic damages resulting from financial losses suffered by Harper directly attributable to MVP's breach of the contract. Count V sought punitive damages to punish and deter MVP for its intentional breach of the contract. The instructions given in the Harper v. MVP case described Harper's claims against MVP as follows:\\n\\\"In this case the plaintiff, E.S. Harper Co., Inc., claims that these are the facts: \\\"'That the E.S. Harper Company contracted with the Magic Valley Potato Shippers to sell their potatoes for a minimum guaranteed price of $8.00 less some tare. That the Magic Valley Potato Shippers refused to pick up the Harper's potatoes when asked to and continued to delay until it was so late, very few of the Harper potatoes could be salvaged and resold.\\n\\\" 'Thus, the plaintiff seeks to recover from the defendant: the payment for the amount of potatoes that Harper's had in storage for Magic Valley Potato Shippers under their contract at the minimum price of $8.00 less tare. For the loss of Harper's equity in their farm which the bank took back due to the Harper's inability to make payments on their loan. Plus, the loss of income for Ed Harper and Flo Harper. And last, for punitive damage to prevent the Magic Valley Potato Shippers from treating other farmers in a similar manner.' \\\"\\nBoth the amended complaint and the district court's instructions to the jury indicate that the Harper v. MVP lawsuit was an action for breach of contract, and did not involve any claim for damages in tort. MVP has failed to demonstrate that damage to property was at issue in the underlying suit. The Harper v. MVP lawsuit was a contract action, and there was no allegation of either \\\"property damage\\\" or an \\\"occurrence\\\" within the meaning of the policy. Additionally, the liability in Harper v. MVP was \\\"assumed by [MVP] under [its] contract\\\" with Harper, and thus the contract exclusion was applicable. There were no genuine issues of material fact on the policy coverage issues and, accordingly, the district court's granting of summary judgment for Continental Insurance is affirmed.\\nII\\nMVP's complaint against Paslay alleged that he represented to MVP that the Continental insurance policy coverage was as extensive or more extensive than the NFU policy coverage. A party alleging fraudulent misrepresentation has the burden of proving all elements by clear and convincing evidence. Faw v. Greenwood, 101 Idaho 387, 613 P.2d 1338 (1980). After reviewing the evidence in a light most favorable to MVP, it is clear that MVP has failed to carry this burden.\\nWe find after comparing comprehensive business policies from Continental Insurance and comprehensive business policies from National Farmers Union Property & Casualty Company, it is evident that the two policies are virtually identical. With regard to the comprehensive umbrella liability policies, MVP failed to introduce its last National Farmers Union Property & Casualty Company policy into the record, and the record does not contain a copy of the Continental Comprehensive Umbrella Policy. Thus, we cannot compare those policies. It is evident that MVP has failed to carry its burden of proving all elements of its claim of misrepresentation by clear and convincing evidence. The granting of summary judgment by the district court is affirmed.\\nCosts to respondent. No attorney fees.\\nSHEPAED, C.J., and DONALDSON, BISTLINE and HUNTLEY, JJ., concur.\\n. It should also be noted that MVP's claim against Continental does not extend to the comprehensive umbrella liability policy because the claim must reach a total of $500,000 before it will be covered by that policy. Harper recovered less than $500,000 in damages from MVP.\\n. The primary general liability policies which are at issue are set out below. Both exclude liability coverage derived from contract actions. The primary Farmers policy provides liability coverage as follows:\\n\\\"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of\\nA. bodily injury, or\\nB. property damage\\nto which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or defend any suit after the applicable limit of the company's liability has been exhausted by payment of judgments or settlements.\\\"\\nIt specifically excludes coverage for liability:\\n\\\"assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured's products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner.\\\"\\nThe primary Continental policy procured for appellant by Paslay in 1984 provides liability coverage as follows:\\n\\\"I. COVERAGE A \\u2014 BODILY INJURY LIABILITY\\n\\\"COVERAGE B \\u2014 PROPERTY DAMAGE LIABILITY\\n'The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of\\nA. bodily injury or\\nB. property damage\\nto which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company's liability has been exhausted by payment of judgments or settlments.\\\"\\nIt specifically excludes coverage for liability:\\n\\\"assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured's products or a warranty that work performed by or on behalf of the named insured will be done in a workmenlike manner.\\\"\"}"