Idaho Supreme Court Update: Originalism in Idaho

On January 5, 2023, the Idaho Supreme Court issued its opinion in Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky v. State of Idaho. In a 3-2 decision, the Court upheld three Idaho laws severely restricting access to abortion. The justices covered a lot of ground in a majority opinion and two dissents spanning 139 pages, but this post will focus on the role of originalism in the Court’s analysis.

The Court grappled with, among other things, whether Article I, Section 1 of the Idaho Constitution guarantees in some form the right to an abortion. The five justices answered that question in three ways, revealing their differences in constitutional interpretation along the way. A careful analysis of those differences informs how advocates should present future state constitutional questions to the Court.

Starting with a point of commonality, the justices all agreed that the Court should start with the text. Article I, Section 1 says: “All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.” That list of inalienable rights does not mention abortion, but the list is also not exhaustive. So the justices were left to determine whether Article I, Section 1 contains an implicit right to abortion. The justices diverged on how to answer that question, which then of course led to different answers. Continue Reading

Idaho Supreme Court Update: Latvala v. Green Enterprises, Inc.

The facts. This case was previously before the Idaho Supreme Court in Latvala v. Green Enterprises, Inc., 168 Idaho 686, 485 P.3d 1129 (2021) (Latvala I). It concerns the scope of a prescriptive easement over a road to reach a land-locked parcel of land. The parcel was originally part of a patented mining claim, and the road was used for that purpose. The Latvalas purchased the parcel and sought an easement to use the road to construct a residence there. Neighboring landowners challenged the easement. In Latvala I, the Court affirmed the trial court’s ruling that the Latvalas had a prescriptive easement over the road but vacated its determination that the road could be used to construct a residence on the parcel.

On remand, the parties disputed whether Latvala I prohibited the Latvalas’ residential use of the parcel (as argued by the neighboring landowners) or only the use of the road to construct a residence (as argued by the Latvalas). The trial court entered an amended judgment agreeing with the Latvalas, and the neighboring landowners appealed.

The issues. Two main issues were on appeal: (1) whether the neighboring landowners’ appeal ran afoul of the finality of Latvala I or the law of the case doctrine, and (2) whether the scope of the prescriptive easement found in Latvala I prohibited the Latvalas from using the parcel for residential purposes.

The result. The Court rejected the Latvalas’ argument that the law of the case doctrine prohibited the neighboring landowners from challenging the amended judgment. The Court held that the landowners were “merely seeking an interpretation of” Latvala I, not a modification. As for the scope of the prescriptive easement, the Court affirmed the district court’s amended judgment, finding it was consistent with the Court’s decision in Latvala I. As a result, the Latvalas cannot use the road to construct a residence, but they can drive along the road to access a residence.

Practice Pointers.

  1. The law of the case doctrine bars the relitigation of issues in a single case and its subsequent progress, both in the trial court and in subsequent appeals. Here the Court considered its decision in Latvala I and found it did not declare that residential use was prohibited. Thus, the neighboring landowners were not seeking to modify the decision or obtain a different holding. They simply questioned whether the trial court’s amended judgment was consistent with Latvala I.
  2. The Court spent several pages dissecting its holding in Latvala I and unpacking Gibbens v. Weisshaupt, 98 Idaho 633, 638, 570 P.2d 870, 875 (1977). Gibbens is the seminal case addressing the scope of a prescriptive easement and subsequent changes in use. Concluding that the Latvalas may use the road to access a residence on the parcel, the Court clarified that courts must focus on whether an expansion of use would result in an increased burden on the servient estate. The focus is not on the subjective intent of the dominant estate each time they use the easement.

Idaho Supreme Court Update: The Importance of Local Counsel

On December 7, 2022, the Idaho Supreme Court issued an opinion in Schiermeier v. State of Idaho. This post will focus not on the merits of that decision, but on the Court’s “necessary discussion regarding the conduct of counsel.”

In Idaho, out-of-state attorneys may practice law only if they associate with local counsel and apply for pro hac vice admission. Idaho Bar Commission Rule 227. Local counsel, at the very least, must familiarize out-of-state counsel with the standards and expectations governing the practice of law in Idaho, and ultimately local counsel “take[s] responsibility for the conduct of out-of-state counsel.” To discharge that duty, local counsel must sign all submissions (certifying that local counsel has read the submission) and appear at all proceedings with out-of-state counsel (unless the requirement has been waived).

In Schiermeier, the petitioner retained an out-of-state attorney. In his briefing and at oral argument, the out-of-state attorney “made repeated ad hominem attacks on the district court judge . . . suggesting that Schiermeier had not and would not receive a fair hearing in the district court and that the district court judge was not intelligent enough to understand the arguments made at trial.” The out-of-state attorney “also made disparaging comments” about his client’s public defender and opposing counsel.

The Court found that the comments “were uncalled for and inappropriate,” so it took “the unusual step of publicly issuing a written warning to” the out-of-state attorney. The Court did not stop there, as it also issued a warning to local counsel—even though he did not make the inappropriate comments. The Court emphasized that it “require[s] association with local counsel to ensure that out-of-state attorneys are familiar with the standards and expectations governing an Idaho counsel’s behavior and that local counsel will then take responsibility for the conduct of out-of-state counsel who operate within [Idaho’s] court system.”

Practice Pointers.

  1. Hiring local counsel is not a mere formality. Idaho courts expect local counsel to play an active role in litigation, even if an out-of-state attorney takes the lead. There can be serious consequences if an out-of-state attorney does not know how to practice in Idaho.
  2. Serving as local counsel is not a mere formality. Thankfully, Idaho is an unusually collegial place to practice law—as symbolized by the Court’s unique practice of shaking hands with counsel after oral argument. The expectation of collegiality applies equally to out-of-state attorneys, and it is local counsel’s responsibility to ensure those standards are met. Local counsel can be held responsible for an out-of-state attorney’s shortcomings.
  3. This is not the first time in recent history that the Court has emphasized the importance of local counsel. At an oral argument in 2020, the Chief Justice chastised out-of-state and local counsel for failing to follow Idaho’s rules. The Chief Justice noted that Idaho has high standards for counsel, and there is an even higher standard for local counsel to make sure Idaho’s standards are followed. The full discussion can be found here.
  4. In the past, the Idaho Supreme Court has been relaxed about requiring local counsel to appear at oral arguments. More recently, the Court has changed tack—perhaps because of its recent emphasis on the serious obligations of serving as local counsel.

Idaho Supreme Court Update: Blaskiewicz v. Spine Institute of Idaho, P.A.

The facts. Donald Blaskiewicz, M.D., a highly trained neurosurgeon, was employed by the Spine Institute of Idaho, P.A. (“Spine Institute”) pursuant to a Professional Services Agreement (“PSA”). The PSA contained a non-compete clause that prohibited him from practicing medicine within 50 miles of the Spine Institute’s office for 18 months. Pursuant to the PSA, Blaskiewicz could avoid the non-compete by either paying the Spine Institute $350,000 or obtaining permission from the Spine Institute to practice medicine in the proscribed area. The district court concluded that the non-compete clause was against public policy and void as a matter of law. The Spine Institute appealed.

The issues. Three issues were on appeal: (1) whether the appeal was moot; (2) whether the district court had jurisdiction despite an arbitration provision; and (3) whether the district court erred in finding that the non-compete was unenforceable.

The result. In a unanimous decision, the Court held that the district court had jurisdiction to decide whether the non-compete agreement was enforceable regardless of the existence of an arbitration provision. The Court further held that the district court erred in granting summary judgment in favor of Blaskiewicz because the district court largely ignored relevant Idaho statutes and failed to analyze certain rebuttable presumptions under Idaho Code § 44-2704.

Practice Pointers.

  1.  Ensure that your appellate record contains all of the briefing on the pertinent motion from below. The Spine Institute failed to include its memorandum opposing summary judgment in the appellate record. While the omission did not affect the outcome of the appeal, the Court found it important enough to point out in the opinion.
  2.  An award of attorney fees might keep an issue from becoming moot. Here, although the 18-month term of the non-compete had run, the appeal was not moot because the Court’s decision could affect the validity of the trial court’s award of attorney fees to Blaskiewicz pursuant to Idaho Code § 12-120(3).
  3.  For disputes involving non-compete agreements, check for controlling statutes. For example, for Idaho non-competes involving key employees, practitioners should focus on and analyze the rebuttable presumptions in Idaho Code § 44-2704. Given the trend moving towards finding non-compete clauses invalid, state statutes are important in defending against and enforcing non-compete agreements.

Please click here to read the opinion

Idaho Supreme Court Update: Grace at Twin Falls, LLC v. Jeppesen

The facts. An assisted living facility partnered with a preferred pharmacy to offset software costs related to the tracking and delivery of residents’ prescription medications. The facility charged residents an extra $10 each month if they did not choose the preferred pharmacy. The lower court held that the arrangement violated the Idaho Residential Care or Assisted Living Act, which guarantees residents the “right to select the pharmacy or pharmacist of their choice.” The facility appealed.

The issues. Two issues were on appeal: (1) whether the Idaho Residential Care or Assisted Living Act prohibits the facility from charging residents $10 more per month if they did not select the preferred pharmacy, and (2) whether either party could recover attorney’s fees.

The result. In a unanimous decision, the Court held that the $10 per month surcharge violated the “plan and unambiguous” text of the Idaho Residential Care or Assisted Living Act. As for attorney’s fees, the Court considered the request for fees under Idaho Code § 12-117(1) because the case involved “as adverse parties a state agency or a political subdivision and a person.” Under that statute, the Court must award attorney’s fees if it finds “that the nonprevailing party acted without a reasonable basis in fact or law.” The Idaho Department of Health and Welfare cited Rangen, Inc. v. Idaho Department of Water Resources, 159 Idaho 798 (2016), to argue that it was entitled to fees because the facility relied on the same arguments asserted below without adding new or persuasive authority. The Court declined to award fees, holding that after the Department filed its brief, the Court abrogated the Rangen standard in 3G AG LLC v. Idaho Department of Water Resources, 170 Idaho 251 (2022).

Practice Pointers.

  1. If your client is adverse to a state agency or political subdivision, don’t forget about attorney’s fees. The prevailing party is entitled to fees if the nonprevailing party acts without a reasonable basis in fact or law, which presents either an additional benefit or risk. 
  2. Stick by your guns if you think you have a reasonable argument that the trial court rejected. After 3G AG LLC v. Idaho Department of Water Resources, 170 Idaho 251 (2022), an appellant does not act unreasonably under Idaho Code § 12-117 simply because it repeats on appeal a reasonable argument that was rejected below.

Please click here to read the opinion

Idaho Supreme Court Update: Sheehan v. Sun Valley Company

The facts. The Idaho Department of Labor found that Nathaniel Sheehan was ineligible for unemployment insurance benefits and ordered him to repay benefits that he had received. During Sheehan’s initial protest, the Department advised Sheehan that it would email updates to him, but the Department instead mailed a notice of telephonic hearing to Sheehan’s P.O. box. The Department dismissed Sheehan’s protest after he failed to appear at the hearing, and Sheehan’s subsequent appeals were dismissed as he continued to miss filing deadlines.

The issues. The issue on appeal was whether the Idaho Industrial Commission properly declined to consider Sheehan’s untimely appeals.

The result. The Idaho Supreme Court unanimously affirmed the decision below. The Court recognized that “Sheehan presents a poignant story rife with compelling circumstances” and expressed “concern” about “the conflicting communications by IDOL.” The Court noted that it could dismiss the appeal for failure to comply with Idaho Appellate Rule 35(a)(6) because Sheehan’s brief “offer[ed] no legal authority or any cogent argument.” But even looking past those shortcomings, the Court held that the Industrial Commission did not abuse its discretion because Sheehan “persistently missed other filing deadlines” that had no connection to the Department’s miscommunications about whether it would email or mail updates on Sheehan’s original protest.

Practice Pointers.

  1.  It is critical to adhere to deadlines to file a notice of appeal. Even if a litigant has “a poignant story rife with compelling circumstances,” the Court will dismiss an untimely appeal.
  2.  Appellate briefing is extremely important—don’t wait for oral argument to present your legal arguments. Idaho Appellate Rule 35(a)(6) requires an appellant’s opening brief to “contain the contentions of the appellant with respect to the issues presented on appeal, the reasons therefor, with citations to the authorities, statutes and parts of the transcript and record relied upon.” The Court can dismiss an appeal if the opening brief fails to adequately present the appellant’s legal arguments. The Court recently raised a similar point in Gray v. Gray.

Please click here to read the opinion

Idaho Supreme Court Update: Gray v. Gray

The facts. Mom and Dad were married, had a child, and divorced. As part of the divorce, the parties reached a visitation arrangement that gave Mom primary custody of the child and Dad visitation. Mom later relocated to Costa Rica with the child. Mom made the decision to relocate unilaterally, without informing Dad and without leave of court. Dad moved to modify the custody arrangement. After shifting the burden to Mom, the magistrate court granted the motion and required Mom to return the child to the United States. Mom appealed.

The issues. Mom raised three main errors on appeal: (1) the magistrate court applied the wrong burden of proof; (2) the magistrate court abused its discretion in concluding the modification of custody was in the child’s best interests; and (3) the burden of proof violated due process.

The result. The Idaho Supreme Court affirmed and denied Dad’s request for attorney fees on appeal under Idaho Code § 12-121.

Practice Pointers.

  1. The Court included a lengthy discussion on the burden of proof in custody modification cases, addressing its history and the burden-shifting framework created by Roberts v. Roberts, 138 Idaho 401, 64 P.3d 327 (2003). Ultimately the Court held that Roberts’ burden-shifting analysis applied because Mom frustrated the custody arrangement to such a degree that violated the arrangement.
  2. The Court refused to consider Mom’s due process argument, which was raised for the first time in her reply brief. An assignment of error is deemed waived if there is no argument contained in the appellant’s brief. The same is true when it is raised for the first time in the appellant’s reply brief.
  3. Even though Mom’s appeal merely second-guessed the magistrate court’s findings, the Court denied Dad attorney fees on appeal under Idaho Code § 12-121. The Court reasoned that the case raised a unique question of law concerning the burden of proof in a discrete category of cases and that the appeal materially advanced the law.

Please click here to read the opinion

Idaho Supreme Court Update: Carver v. Hornish

The facts. A father allegedly consented to a sham marriage for his minor daughter to evade the magistrate court’s jurisdiction over a custody dispute with his ex-wife. The mother requested expedited relief to stop the sham marriage, but the magistrate court did not enter an order stopping the father from consenting to the marriage until after the marriage had occurred. The mother asked the magistrate court to apply its order retroactively and nullify the marriage, but the magistrate court declined to do so, finding that the marriage would be voidable—not void ab initio. The mother appealed.

The issues. Two issues were on appeal: (1) whether the doctrine of nunc pro tunc allowed the magistrate court to apply retroactively an order granting an emergency motion that it did not see until eight days after the motion was filed, and (2) whether an Idaho law allowing only one parent to consent to the marriage of a minor child is constitutional.

The result. In a 3-2 decision, the Idaho Supreme Court affirmed. The Court declined to address the merits of the nunc pro tunc issue because even if the order applied retroactively, the marriage would be voidable—not void ab initio. Thus, the magistrate court would still lack jurisdiction overt the custody proceedings. The Court also declined to decide whether an Idaho law permitting only one parent to consent to a minor child’s marriage is unconstitutional because the mother presented a “cursory” argument in her opening brief and her attorney “did not provide any substantive response to the Court’s questions on the issue during oral arguments.”

Practice Pointers.

  1. Even in cases with extreme fact patterns like the alleged sham marriage of a minor child, the Court will strictly apply preservation rules—even more so if an appellant fails to provide substantive arguments in its opening brief and at oral argument.
  2. An appellant must remember to request relief that will change the outcome below. The Court declined to address the nunc pro tunc argument because the magistrate court would still lack jurisdiction even if the mother’s argument was correct.
  3. Unless a judge instructs otherwise, it is a best practice to submit to chambers courtesy copies of time-sensitive filings. This appeal may have been avoided if counsel had sent a courtesy copy of the motion requesting that the magistrate court stop the father from consenting to the marriage.

Please click here to read the opinion

In Reversal, Minnesota Supreme Court Finds State Law Does Not Preempt Proposed City Charter Amendment On Municipal Waste Collection System

In Jennissen v. City of Bloomington, 913 N.W.2d 456 (2018), the Minnesota Supreme Court recently held that Minn. Stat. § 115A.94 (2016) does not preempt local ordinances concerning municipal waste collection systems, finding that the Legislature did not intend to occupy the field but instead left room for supplemental municipal regulation.  In reversing decisions by the Hennepin County District Court and the Minnesota Court of Appeals, the Minnesota Supreme Court specifically found that Minn. Stat. § 115A.94 does not preempt Bloomington residents’ passage of a charter amendment that would prevent the City of Bloomington from implementing an organized waste collection ordinance without prior voter approval. On remand, the Court of Appeals held that the residents’ proposed charter amendment was an improper referendum.  The Minnesota Supreme Court granted review on January 15, 2019. Continue Reading

Minnesota Supreme Court Clarifies The Disproportionate Forfeiture Doctrine

The Minnesota Supreme Court recently clarified the application of the doctrine against disproportionate forfeiture under Minnesota contract law in Capistrant v. Lifetouch Nat’l Sch. Studios, Inc., 916 N.W.2d 23 (Minn. 2018).  Minnesota courts (and other jurisdictions) have long relied on the disproportionate forfeiture doctrine as a way to prevent inequitable penalties in contracts, although the doctrine is not uniformly interpreted.  In Capistrant, while the court confronted the specific question of “whether a former employee’s delay in returning his employer’s property excuses the employer from paying a commission otherwise due to the employee,” its interpretation of the disproportionate forfeiture doctrine may have wider application.

Factual background

Capistrant worked as a photography and sales representative for Lifetouch, a photography services company that contracts with schools and other organizations.  After he retired, Capistrant filed this action seeking to recover unpaid commissions based on his employment contract.  The parties entered that contract in 1986, when Capistrant managed certain territory for Lifetouch and was compensated entirely with commissions, including “residual commissions” owed after his employment with Lifetouch ended.  The contract also contained a term by which Lifetouch could terminate its obligation to make any unpaid payments of residual commissions to Capistrant if “at any time” Capistrant “breached” certain provisions.  Included among those provisions was a “restriction against competition” wherein Capistrant was required, in one part, to “immediately deliver to Lifetouch all of Lifetouch’s property” at the end of his employment.  The Minnesota Supreme Court referred to this as the “return-of-property” clause.

During the discovery period, Capistrant revealed that he had retained a large number of Lifetouch’s proprietary documents in violation of the return-of-property clause.  Capistrant quickly returned the documents to Lifetouch and its forensic expert determined Capistrant had not disseminated the documents to outside sources.  Regardless, Lifetouch argued Capistrant’s failure to comply with the return-of-property clause excused it from paying him residual commissions.  Continue Reading