City of Coeur D'Alene v. Simpson, 29299.

• Decision Date: 27 April 2006
• Docket Number: No. 29299.,29299.
• Parties: The CITY OF COEUR D'ALENE, an Idaho Municipal Corporation, Plaintiff-Counterdefendant-Respondent, v. Jack W. SIMPSON and Virginia S. Simpson; and Beach Brothers, Inc., an Idaho corporation, Defendants-Counterplaintiffs-Appellants.
• Court: Idaho Supreme Court

136 P.3d 310

142 Idaho 839

The CITY OF COEUR D'ALENE, an Idaho Municipal Corporation, Plaintiff-Counterdefendant-Respondent, v. Jack W. SIMPSON and Virginia S. Simpson; and Beach Brothers, Inc., an Idaho corporation, Defendants-Counterplaintiffs-Appellants.

No. 29299.

Supreme Court of Idaho, Coeur d'Alene, October 2005 Term.

April 27, 2006.

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John F. Magnuson, Coeur d'Alene; Runft Law Offices, PLLC, Boise, Idaho, for appellants. John F. Magnuson argued.

Quane, Smith, Coeur d'Alene, for respondents. Michael L. Haman argued.

SUBSTITUTION OPINION.

THE COURT'S PRIOR OPINION DATED FEBRUARY 8, 2005, IS HEREBY WITHDRAWN.

JONES, Justice.

The Fifth Amendment to the United States Constitution, made applicable to the states via the Fourteenth Amendment, provides that "private property [shall not] be taken for public use, without just compensation." Appellant Beach Brothers, Inc. alleges just such a thing happened to its lakefront property on Lake Coeur d'Alene. The district court disagreed and dismissed Beach Brothers' claims on summary judgment. We reverse and vacate certain of the rulings and remand for further proceedings.

I.

In 1994 Jack and Virginia Simpson purchased two parcels of property from one Donald Wagstaff. The two parcels are separated physically by Lakeshore Drive, which runs roughly east-west, just north of Lake Coeur d'Alene. The parcel north of Lakeshore Drive, referred to as the upland parcel, includes four lots in the Lakeshore Addition to the City. The parcel south of Lakeshore Drive, referred to as the waterward parcel, consists of three tax lots on Sanders Beach. It does not appear these tax lots were part of the Lakeshore Addition. Both parcels share a single street address and, since at least 1928 and until 2001, the parcels were always conveyed together.

By 1997, the Simpsons were apparently fed up with people entering and mistreating the waterward parcel so they installed two sections of chain-link fence near the western and eastern boundaries of the parcel. Upon learning this, the City issued the Simpsons a stop-work order, citing city ordinances that prohibited construction of fences and other structures within 40 feet of the shoreline. These ordinances, called the "Shoreline Regulations," regulate construction and placement of objects on the area south of Lakeshore Drive. The first of these ordinances, No. 676, was enacted in 1928 and prohibited construction of any structure on the property south of Lakeshore Drive. Ordinance No. 1197, passed in 1965, amended Ordinance No. 676 and prohibited structures on Sanders Beach. Then, in 1982, the City passed Ordinance No. 1722, which prohibited all construction within 40 feet of the shoreline of Lake Coeur d'Alene (with certain exceptions that do not apply here).¹

In 1998, after the Simpsons declined to remove the fences, the City sought a permanent injunction requiring the Simpsons to remove them.² The Simpsons answered and counterclaimed. In their answer they contended the Shoreline Regulations violated their rights to due process and equal protection under the State and Federal Constitutions since the ordinances were being applied to them unequally and deprived them of all economically viable use of their property without paying just compensation. The Simpsons also asserted a counterclaim under 42 U.S.C. § 1983 for inverse condemnation. Late in 1999, the City sought summary judgment on both its claims and the counterclaims. In August 2000 the district court issued a memorandum decision on the motion, concluding that the 40-foot setback requirement did not constitute a taking, but that a question of fact remained on whether the ordinances deprived the property of all economically viable use. In that memorandum decision the court also dismissed the Simpsons' equal protection claim.

That, however, did not end the litigation. In 2001, Jack Simpson formed Beach Brothers as an Idaho corporation and named the Simpsons' adult sons as sole shareholders. Jack and Virginia then quitclaimed the waterward parcel to Beach Brothers.³ The City amended its complaint, adding Beach Brothers as a defendant. The Simpsons and Beach Brothers filed an amended answer and counterclaim. The City again moved for summary judgment. In October 2002 the district court issued a memorandum decision wherein it found the City was entitled to injunctive relief as to the fences that were within the 40-foot area where structures were not allowed. No taking had occurred because, the court wrote, when considering both parcels together, they retained value. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). Additionally, the court ruled no taking had occurred under Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), because the ordinances served the legitimate public purpose of preserving the shoreline's aesthetic features. And while the court found it unclear whether Beach Brothers was asserting a taking by physical occupation, see Kaiser Aetna v. United States, 444 U.S. 164, 179-80, 100 S.Ct. 383, 392, 62 L.Ed.2d 332, 345-46 (1979), it ruled there were no facts to support such a claim. The court also dismissed the Simpsons' and Beach Brothers' equal protection and due process counterclaims. An order requiring the removal of the fences issued two months later. This appeal followed.

II.

After the City filed its first motion for summary judgment, the Simpsons moved to disqualify the district judge under Idaho R. Civ. P. 40(d)(2). They asserted (1) that the judge was disqualified by virtue of his prior representation of the City of Coeur d'Alene while in private practice, and (2) that the judge had on his property a fence which violated City ordinances regarding visual obstructions near intersections, creating an appearance of impropriety. Rule 40 provides that any party to an action may disqualify a judge when the judge has an interest in the case, Idaho R. Civ. P. 40(d)(2)(A)1, or when the judge "has been attorney or counsel for any party in the action or proceeding," Idaho R. Civ. P. 40(d)(2)(A)3. The Idaho Code of Judicial Conduct requires a judge to disqualify himself in a case where he served as a lawyer in the matter in controversy. Idaho Code Jud. Conduct, Canon 3E(1)(b). In a written decision, the district court denied the motion "[b]ased upon the reasons set forth in the record of proceedings held January 4, 2000 . . . ." Orders on motions to disqualify are evaluated according to abuse-of-discretion rules. Samuel v. Hepworth, Nungester & Lezamiz, Inc., 134 Idaho 84, 88, 996 P.2d 303, 307 (2000).

For a number of reasons, we affirm the district court's ruling. First, the "reasons set forth in the record of proceedings held January 4, 2000" are unknown. The transcript of said proceedings would doubtless let us in on the reasons for the judge's ruling. Alas, they are not in the record and Beach Brothers did not request a transcript of those proceedings in its notice of appeal. The appellant, of course, bears responsibility to furnish the Court with a record sufficient to substantiate the claim. Belk v. Martin, 136 Idaho 652, 660, 39 P.3d 592, 600 (2001). Without the transcript, we will not presume error, State v. Murphy, 133 Idaho 489, 491, 988 P.2d 715, 717 (Ct.App.1999), and we are unable to evaluate the claim.

Second, even assuming Beach Brothers' claims are true, we see nothing inherently flawed in the judge's decision. It appears from the record that in his former life as a practicing attorney the judge did represent the City in a proceeding regarding the validity and enforcement of the Shoreline Regulations. (The company does not contend that the judge represented the City in this proceeding.) Eager to point out that it is not questioning the judge's integrity, Beach Brothers argues that this causes an appearance of impropriety and must be avoided. The problem with Beach Brothers' argument is that its logical and necessary application equates to a rule that would force many members of the judiciary out of cases where their former employers were parties, regardless of whether the judge was a lawyer in the particular proceeding. For example, under Beach Brothers' theory, a judge who had served as county prosecutor would be disqualified from presiding over any case in which the county was a party, simply by virtue of his prior employment. A former state attorney general, serving on this Court, would be disqualified from any appeal involving the State. A per-se rule with this result is unnecessary and patently unworkable. Rule 40(d)(2)(A)3 must be read together with Canon 3 E(1)(b) of the Code of Judicial Conduct, requiring disqualification only where the judge has served the former client in the matter in controversy. Accordingly, the fact that the judge once represented the City⁴—even regarding the validity and enforcement of the ordinances at issue in this case—is not, by itself, a viable ground on which to base a motion to disqualify.

Third, the judge's name is stamped prominently on the front page of the complaint. Presumably, counsel knew of the identity of the judge upon filing the action and was aware of the fact that the judge had formerly represented the City. That would have been the opportune time to have filed a disqualification under Rule 40(d)(1), if this was a matter of such great concern. It is unknown why that avenue was not pursued.

And finally, Beach Brothers' argument that the district judge's allegedly non-conforming fence creates an appearance of impropriety is a bit far afield. Beach Brothers failed to offer a plausible argument as to how the fence gives the district judge an interest in the case, and it is equally bewildering how the judge's fence would possibly call into question his ability to fairly and impartially decide issues in the case. We see nothing about the judge's fence that,...