Federated Publications v. Business Review
| Decision Date | 26 August 2008 |
| Docket Number | No. 34343.,34343. |
| Parties | FEDERATED PUBLICATIONS, INC., a Delaware corporation, dba The Idaho Statesman, Plaintiff-Respondent, v. IDAHO BUSINESS REVIEW, INC., an Idaho corporation, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Holland & Hart, LLP, Boise, for appellant. B. Newal Squyres argued.
Evans Keane, LLP, Boise, for respondent. David W. Gratton argued.
Givens Pursley, LLP, Boise, amicus curiae.
This case involves a request by Federated Publications, Inc. (The Statesman)1 for a declaration from the Court that Idaho Code Section 60-106 applies to all legal notices, advertisements or publications of any kind required or provided by the laws of the state of Idaho, including both government and private notice, and that such notice must be published in the newspaper having the largest paid circulation within the boundaries of the governmental entity wherein the notice is required to be published.
This case also involves the interpretation of Idaho Code § 60-106, as well as the title of the 1994 bill amending Idaho Code § 60-106. The Idaho Business Review (IBR) contends that the district court erred when it held that its interpretation of the amendment did not violate the subject-in-title requirement of Article III § 16 of Idaho's Constitution.
Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.
The relevant language of Chapter 192 (S.B. No. 1336) of the 1994 Idaho Session Laws amending Idaho Code § 60-106 reads as follows:
AN ACT
RELATING TO PRINTING OF LEGAL NOTICE; AMENDING SECTION 60-106, IDAHO CODE, TO FURTHER DEFINE A NEWSPAPER OF GENERAL CIRCULATION FOR PURPOSES OF PUBLICATION OF NOTICE BY GOVERNMENTAL ENTITIES AND TO MAKE TECHNICAL CORRECTIONS. . . .
No legal notice, advertisement or publication of any kind required or provided by the laws of the state of Idaho, to be published in a newspaper, shall be published or have any force or effect, as such, unless the same be published in a newspaper of general interest published in the state of Idaho . . .; provided that, notwithstanding any other provision of Idaho laws, the term "newspaper of (or having) general circulation," wherever used in Idaho Code as a qualification of newspapers required to be used for the publication of notice, shall mean a "newspaper," as defined in this section, that is published within the boundaries of the governmental entity wherein the notice is required to be published and which newspaper has the largest paid circulation among all newspapers published in that governmental entity as verified by the sworn statement of average total paid or requested circulation for the preceding twelve (12) months that was filed on the annual statement of ownership, management and circulation with the U.S. postal service on the date immediately preceding the date of the required publication of notice; excepting that, where no newspaper is published within the governmental entity required to publish a notice, the term "newspaper of (or having) general circulation" shall mean the newspaper with the largest paid circulation published within any county in which the governmental entity is located, or the newspaper published nearest to the boundaries of the governmental entity . . . .
The previous version of Idaho Code § 60-106 required notice to be published in a newspaper of general circulation in a particular county, but did not define "general circulation," whereas the amended version required notice to be published in a newspaper of general interest and defined "newspaper of (or having) general circulation" as a newspaper with the largest paid circulation that is published within the boundaries of the governmental entity where the relevant notice must be published. Under the amended version defining "newspaper of (or having) general circulation," if no newspaper is published within the governmental entity required to publish a notice, the term refers to the newspaper with the largest paid circulation published within any county in which the governmental entity is located or the newspaper published closest to the governmental entity's boundaries. The statute does not define "newspaper of general interest."
The title of an amendatory act generally will not violate Article III § 16 of Idaho's Constitution if the title "refers by number to the section to be amended, provided the title of the original act is sufficient under the rule dealing with the original measures,2 and provided the amendment is germane to the subject of the original act." Hammond v. Bingham, 83 Idaho 314, 320, 362 P.2d 1078, 1081 (1961). However, if a title "particularize[s] some, but not all, of the changes," then "the legislation is limited to the matters specified, and anything beyond them is void, however germane it may be to the subject of the original act." Id. at 320, 362 P.2d at 1081-82.
In statutory construction, the first step is to examine the statute's literal language. Cowan v. Bd. of Comm'rs, 143 Idaho 501, 511, 148 P.3d 1247, 1258 (2006). The statute's words must be given their plain and ordinary meaning in light of the statute as a whole. State v. Hart, 135 Idaho 827, 829, 25 P.3d 850, 852 (2001). If the words are clear and unambiguous, the Court must give effect to the statute as written, Albee v. Judy, 136 Idaho 226, 31 P.3d 248 (2001), and not consider legislative history. Unless the result is palpably absurd, this Court must assume that the legislature meant what it wrote in the statute. Poison Creek Publishing, Inc. v. Central Idaho Publishing, Inc., 134 Idaho 426, 429, 3 P.3d 1254, 1257 (2000).
III. STANDARD OF REVIEW
Constitutional issues are purely questions of law; therefore, this Court exercises free review over such issues. Meisner v. Potlatch Corp., 131 Idaho 258, 260, 954 P.2d 676, 678 (1998). This Court also freely reviews issues of statutory interpretation. Big Sky Paramedics, LLC v. Sagle Fire Dist., 140 Idaho 435, 436, 95 P.3d 53, 54 (2004).
We first will determine the proper interpretation of Idaho Code § 60-106, including whether an ambiguity exists within the statute. Then, we will analyze whether the statute's title is consistent with the mandate of Article III § 16 of the Idaho Constitution. Finally, we will address the issue of attorney's fees.
In simple terms, the relevant portion of the statute can be deconstructed as follows:
No legal notice shall have any effect unless published in a newspaper of general interest published in Idaho
"Newspaper of or having general circulation," wherever used in the Idaho Code as a qualification of newspapers used for notice publications
—is a newspaper published within the boundaries of the governmental entity wherein notice is required to be published and
—which newspaper has the largest paid circulation among all newspapers published in that governmental entity
Where no newspaper is published within the governmental entity required to publish notice, "newspaper of (or having) general circulation" shall mean
—the newspaper with the largest paid circulation published within any county in which the governmental entity is located, or
—the newspaper published nearest to the boundaries of the governmental entity.
The general statement that "no legal notice shall have any effect unless published in a newspaper of general interest published in Idaho" clearly applies both to governmental and non-governmental entities. So, both such entities must publish their notices in Idaho publications of "general interest." The remaining language applies to any notice-related statutory provisions that refine this general rule by additionally requiring that the relevant newspaper be a newspaper "of (or having) general circulation." The "provided that" clause does not distinguish between governmental and non-governmental entities required to publish notice. The only use of the term "governmental entity" in that clause involves the geographic sense of the term, not specifically a governmental entity required to publish notice. In other words, it refers to where notice must be published—by governmental and non-governmental entities alike—and not who is publishing notice. Therefore, the statute applies both to governmental and non-governmental entities.
Idaho Code § 60-106 and Article III § 16 of Idaho's Constitution
Idaho Code § 60-106 violates Article III § 16 of Idaho's Constitution. The title of Idaho Code § 60-106 states that it relates to the definition of a "newspaper of general...
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