City of Boise v. Frazier, 30944.

• Citation: 143 Idaho 1,137 P.3d 388
• Decision Date: 13 April 2006
• Docket Number: No. 30944.,30944.
• Parties: CITY OF BOISE, a municipal corporation of the State of Idaho, Petitioner-Respondent, v. David FRAZIER, an interested party, Respondent-Appellant.
• Court: United States State Supreme Court of Idaho

Page 388

137 P.3d 388

143 Idaho 1

CITY OF BOISE, a municipal corporation of the State of Idaho, Petitioner-Respondent, v. David FRAZIER, an interested party, Respondent-Appellant.

No. 30944.

Supreme Court of Idaho, Boise, May 2005 Term.

April 13, 2006.

Davison, Copple, Copple & Cox, Boise, for appellant. Heather A. Cunningham argued.

Boise City Attorney's Office, Boise, for respondent. Matthew K. Wilde argued.

Skinner, Fawcett & Mauk, Boise, for respondent. Dennis Gibala appeared.

BURDICK, Justice.

David Frazier (Frazier) appeals to the Idaho Supreme Court from a district court decision authorizing the City of Boise (the City) to incur a public liability in order to expand the parking facilities at the Boise Airport. Frazier argues the agreement entered into by the City is in violation of Article VIII, § 3 of the Idaho Constitution requiring a public vote before incurring a debt or liability unless the proposed undertaking is "ordinary and necessary." Additionally, Frazier contends the parking expansion violates the prohibition on public loans or gifts of credit to private entities found in Article VIII, § 4 of the Idaho Constitution because portions of the expanded parking facilities will be leased by private rental car companies. For the reasons set forth below, we reverse the decision of the district court and remand for a determination of Frazier's costs and attorney fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

The City has owned and operated an airport since 1926, and the Boise Airport has been at its current location since 1939. The Boise Airport serves as the principal airport for southwestern Idaho and eastern Oregon. The number of travelers passing through the airport is expected to grow substantially in the coming years.

The City sought judicial confirmation in district court to allow the City to enter into an agreement for the expansion of the airport's parking facilities. The proposed agreement involved the City incurring long term indebtedness to finance the project. Frazier filed a notice of appearance and opposed the City's petition for judicial confirmation. After the parties conducted discovery and a hearing was held, the district court entered findings of fact and conclusions of law and granted the City's petition.

The district court found parking capacity to be an integral part of the operation of a regional airport and the parking facilities at the Boise Airport to be inadequate to meet current or future needs. The district court additionally found that the proposed five level parking facility was not new construction, but instead was an expansion of the existing facility. As a result, the district court determined the expansion project was an "ordinary and necessary" expense that did not require a public vote for its approval, and that leasing parking space to rental car companies would not be an impermissible gift of the City's credit because such leases were consistent with public use of the facility.

Frazier filed a timely appeal that is now before this Court.

II. STANDARD OF REVIEW

This Court defers to the factual findings of the district court unless those findings are clearly erroneous. Bouten Constr. Co. v. H.F. Magnuson Co., 133 Idaho 756, 760, 992 P.2d 751, 755 (1999). This Court exercises free review of the district court's application of the relevant law to the facts. Roberts v. State, 132 Idaho 494, 496, 975 P.2d 782, 784 (1999). Constitutional issues are questions of law over which we also exercise free review. State v. Weber, 140 Idaho 89, 91, 90 P.3d 314, 316 (2004).

III. ANALYSIS

Article VIII, § 3 of the Idaho Constitution generally bars cities from incurring debts or liabilities without first conducting an election to secure voter approval for the proposed expenditure.¹ The section, however, contains a notable exception. No public vote is required if the expenditure is for an "ordinary and necessary" expense "authorized by the general laws of the state ... ." This exception is referred to as the "proviso clause." City of Pocatello v. Peterson, 93 Idaho 774, 778, 473 P.2d 644, 648 (1970).

In the present case, the district court ruled that the parking expansion was an ordinary and necessary expense within the meaning of the constitution. Consequently, the district court concluded the City was lawfully authorized to incur liabilities in order to finance its completion. Frazier argues the expansion is not an "ordinary and necessary" undertaking and therefore the City must obtain the consent of the voting public before entering into the proposed financing agreement.

A. The Development of Article VIII, § 3

Article VIII, § 3 has been part of Idaho's Constitution since the beginning of statehood. The draft version of Article VIII, § 3 that was submitted to the 1889 Idaho Constitutional Convention was modeled after and nearly identical to Article XI, § 18 of the California Constitution of 1879. See 1 PROCEEDINGS AND DEBATES OF THE CONSTITUTIONAL CONVENTION OF IDAHO 1889, 589 (1912) (henceforth 1 PROCEEDINGS); CAL. CONST. of 1879, Art. XI, § 18. The intention was to prevent local government entities from incurring debts without approval from the voters and a clear plan to retire those debts. DONALD CROWLEY & FLORENCE HEFFRON, THE IDAHO STATE CONSTITUTION 170 (1994).

Broadly speaking, Article VIII, § 3 imposes two requirements to be met by local governments before incurring indebtedness. The first requirement is a public election securing two-thirds of the vote, and the second is the collection of an annual tax sufficient to pay the debt within thirty years. The remainder of the section consists of exceptions to those requirements, beginning with the previously mentioned proviso clause and continuing with language added in a series of subsequent amendments not applicable to our analysis.

When the draft version of Article VIII, § 3 was presented to the constitutional convention, it was amended by the delegates to add the words "provided, that this section shall not be construed to apply to the ordinary and necessary expenses authorized by the general laws of the state." See IDAHO CONST. art VIII, § 3; 1 PROCEEDINGS at 584-94. Delegate William Claggett offered the original proviso clause. See 1 PROCEEDINGS at 586. Claggett explained his intent to the other delegates, stating: "[w]e all know that in the practical administration of county government, that there sometimes will be extraordinary expenses, I mean extraordinary expenses in the ordinary administration of affairs." Id. at 588. By way of example, Claggett mentioned the payment of witness fees. Id. Other delegates mentioned juror fees and criminal court expenses, id. at 590, the expense of controlling streams and ditches, id. at 592, and "any emergency" id. at 587.

B. The Proposed Parking Expansion Is Not An "Ordinary And Necessary" Expense Under Article VIII, § 3

In determining whether the proposed parking expansion is ordinary and necessary, we turn first to the question of whether it is "ordinary." This Court has previously held an expense to be ordinary "if in the ordinary course of municipal business, or the maintenance of municipal property, it may be and is likely to become necessary." Hanson v. City of Idaho Falls, 92 Idaho 512, 514, 446 P.2d 634, 636 (1968).

Idaho law provides for local governments to maintain and operate airports. I.C. § 50-321. The City's proposal to expand the Boise airport's parking facilities to keep pace with rising demand is entirely consistent with "the ordinary course of municipal business" in operating City property and is a type of expense that "may be and is likely to become necessary." See Hanson, 92 Idaho at 514, 446 P.2d at 636 (defining "ordinary" in the context of the proviso clause). As a result, the City's proposed project is an "ordinary" expense under the circumstances before us.

The phrase "ordinary and necessary," however, is read in the conjunctive. See Asson v. City of Burley, 105 Idaho 432, 443, 670 P.2d 839, 850 (1983). Therefore, in order for the expenditure at issue to be "ordinary and necessary" it must also qualify as "necessary." See id. The proper definition of "necessary" as it is used in the proviso clause merits especially close scrutiny in this case. We have articulated two definitions of the term as it appears in the clause. Most recently, this Court quoted Black's Law Dictionary for the proposition that "`[n]ecessary' means `indispensible'" [sic]. Peterson, 93 Idaho at 778, 473 P.2d at 648. The difficulty with defining "necessary" as "indispensable" is that the definition is circular and provides little guidance. In particular, such a definition does not assist a court in distinguishing truly necessary expenditures from those that are merely desirable or convenient.

Earlier, in Dunbar v. Board of Commissioners of Canyon County, 5 Idaho 407, 412, 49 P. 409, 411 (1897), we wrote that in order for an expense to qualify as necessary under the proviso clause "there must exist a necessity for making the expenditure at or during such year." (Emphasis added). The meaning of "necessary" in the proviso clause takes on added clarity under the Dunbar test because expenditures qualify as "necessary" only if they are truly urgent. The Dunbar test has the additional benefit of matching closely with the types of expenditures the delegates at the Idaho Constitutional Convention discussed when they debated Article VIII, § 3 of our state constitution. Those expenditures included unavoidable expenses, such as carrying on criminal trials and abating flood damage, that could not be delayed. See 1 PROCEEDINGS at 590-2. We observe that the expenditures contemplated by the delegates involved immediate or emergency expenses, such as those involving public safety, or expenses the government entity in question was legally obligated to perform promptly.

Although our decisions in the years since Dunbar was handed down have been broadly consistent with the Dunbar test,...