Poison Creek Pub., Inc. v. Central Idaho Pub., Inc., 25618.

Decision Date19 June 2000
Docket NumberNo. 25618.,25618.
Citation134 Idaho 426,3 P.3d 1254
PartiesPOISON CREEK PUBLISHING, INC., an Idaho corporation, dba The Long Valley Advocate, Plaintiff-Respondent, v. CENTRAL IDAHO PUBLISHING, INC., an Idaho corporation, dba The Star News, Defendant-Appellant.
CourtIdaho Court of Appeals

Givens Pursley, LLC, Boise, for appellant. Debora K. Kristensen argued.

Michael G. Pierce, Cascade, for respondent.

SCHWARTZMAN, Judge.

Central Idaho Publishing, Inc. (the Star News) appeals from the district court's grant of summary judgment to Poison Creek Publishing, Inc., dba The Long Valley Advocate (the LVA). The Star News claims that the district court erred by concluding that the LVA was only required to substantially, rather than strictly, comply with the I.C. § 60-106 qualifications for newspapers printing legal notices. We agree and reverse.

I. FACTS AND PROCEDURE

The LVA and the Star News are weekly newspapers published in Cascade, Idaho and McCall, Idaho respectively. The LVA began regular weekly publication in November of 1985 and publishes on Wednesdays. However, during the last week of December in the years 1996-1998, the LVA did not publish its weekly edition because the owners/operators voluntarily ceased publication to take a vacation.

In the early part of 1999, the City of Donnelly notified the LVA that it would no longer publish its legal notices in the LVA, but instead would do so in the Star News because the city was concerned about the LVA's qualification to publish legal notices under I.C. § 60-106. Idaho Code § 60-106 mandates that newspapers, in order to qualify for the publishing of legal notices, must have published a weekly edition every week for seventy-eight consecutive weeks prior to the first publication of the notice. Other governmental entities, including the City of Cascade, also discontinued publishing their legal notices in the LVA. None of these facts are in dispute on appeal.

On March 17, 1999, the LVA filed a complaint for a declaratory judgment concerning its qualification for publication of legal notices under I.C. § 60-106, and named the Star News as a defendant. The Star News filed its answer and thereafter both parties filed a motion for judgment on the pleadings. A hearing was held and the district court, with the parties' consent, treated the matter as cross motions for summary judgment. The district court issued its memorandum decision and order granting summary judgment to the LVA. The Star News appeals.

II. THE DISTRICT COURT ERRED BY NOT REQUIRING THE LONG VALLEY ADVOCATE TO STRICTLY COMPLY WITH I.C. § 60-106
A. Standard of Review

There were no issues of fact contested below, and the issue on appeal involves the interpretation and application of I.C. § 60-106. Because the construction and application of a legislative act presents a pure question of law, we exercise free review. Fox v. State, 129 Idaho 881, 883, 934 P.2d 947, 949 (Ct.App.1997).

B. Idaho Code § 60-106

Idaho Code § 60-106 provides in relevant part:

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, and which newspaper if published weekly, has been continuously and uninterruptedly published in the county during a period of seventy-eight (78) consecutive weeks prior to the first publication of the notice ...; provided, that nothing in this chapter shall invalidate the publication of such notice or advertisement in any newspaper which has simply changed its name, frequency of publication, suspended publication because of an act of God, or public enemy, fire, strike, or other labor dispute, explosion, flood, government prohibition, government requisition of essential property, preferential government orders, breakdown, legal acts of public authorities or other acts beyond the control of the publisher for a period not to exceed six (6) months.

(Emphasis added.)

C. Rules of Statutory Interpretation

The cardinal rule of statutory construction is that where a statute is plain, clear and unambiguous, we are constrained to follow that plain meaning and neither add to the statute nor take away by judicial construction. Moon v. Investment Board, 97 Idaho 595, 596, 548 P.2d 861, 862 (1976). Statutory interpretation always begins with an examination of the literal words of the statute. In re Permit No. 36-7200, 121 Idaho 819, 822, 828 P.2d 848, 851 (1992). Unless the result is palpably absurd, we must assume that the legislature means what is clearly stated in the statute. Id. We must give the words their plain, usual and ordinary meaning, and there is no occasion for construction where the language of a statute is unambiguous. Sherwood v. Carter, 119 Idaho 246, 254, 805 P.2d 452, 460 (1991). We furthermore must give every word, clause and sentence effect, if possible. In re Permit No. 36-7200, 121 Idaho at 822, 828 P.2d at 851.

Idaho has also recognized that "where a constitution or statute specifies certain things, the designation of such things excludes all others." Local 1494 of the Int'l Ass'n of Firefighters v. City of Coeur d'Alene, 99 Idaho 630, 639, 586 P.2d 1346, 1355 (1978). This rule of interpretation is often referred to as expressio unius est exclusio alterius.

D. Analysis

The district court stated in its memorandum decision that the "appropriate test is whether the [Long Valley] Advocate has complied with the requirement of the continuous-publication statute substantially enough to have it continue to qualify as the type of newspaper in which legal notices and advertisements are `likely to come to the attention' of citizens in the community." Citing to several Idaho cases for the proposition that Idaho courts often allow substantial compliance with applicable statutes, rather than strict compliance, the district court concluded that the LVA "substantially complied" with I.C. § 60-106 such that it "has not ceased to qualify as a newspaper suitable for publishing legal notices." However, none of those cases concern statutes setting forth mandatory deadlines or definite timeframes.1

The rules of statutory construction dictate a different result. Idaho Code § 60-106 requires that a newspaper be "continuously and uninterruptedly published in the county during a period of seventy-eight (78) consecutive weeks prior to the first publication of the notice." This clear language mandates that a weekly newspaper publish its weekly edition continuously and uninterruptedly for seventy-eight consecutive weeks. Enforcement of this provision does not lead to palpably absurd results, therefore we must assume that the legislature meant what is plainly written in the statute.

The district court also cited two similar cases that held substantial compliance with a frequency of publication statutory requirement to be sufficient, namely Williams v. Athens Newspapers, Inc., 241 Ga. 274, 244 S.E.2d 822 (1978) and State v. Proctor, 361 S.W.2d 802 (Mo.1962). We find, however, these cases to be distinguishable or otherwise unpersuasive. Williams involved the same factual scenario as the present case, with one important distinction. The Georgia statute did not require that the previous term of publication be for consecutive weeks. The Supreme Court of Georgia concluded that the trial court was correct in finding that the subject newspaper satisfied the requirements of the relevant statute because "if the General Assembly had intended to require publication of the county's legal organ for consecutive weeks during the two-year period, the General Assembly would have said so." 244 S.E.2d at 824. "Consecutive" is precisely the language chosen by the Idaho legislature in drafting I.C. § 60-106.

In Proctor, the Supreme Court of Missouri was faced with the identical issue. The Clarence Courier was a weekly newspaper in Missouri that suspended publication for one week each Christmas so its employees could take a vacation. The relevant Missouri statute provided that the paper had to be "published regularly and consecutively for a period of three years." Proctor, 361 S.W.2d at 804. In deciding that the Clarence Courier did not lose its qualifications as a paper capable of publishing legal notices, the Court stated:

Assuming, by way of argument, that the suspension of publication of a newspaper is shown to be due solely to causes beyond control of the publisher and is of such short and temporary duration as not seriously to affect the substantiality of the newspaper as a "going" newspaper during the period of years fixed by law, we think that, despite the rigidity of the express wording of the statute, any court would be reluctant to hold that the suspension required annulment of the rights theretofore vested in the publisher.... On the other hand, we think that the statute may not be reasonably construed to give to a publisher the unqualified privilege of voluntarily suspending publication for the purpose of recreation, even for a short period of time. (If one publisher may determine that a vacation of one week is desirable, may not another determine that a vacation of two, three or more weeks is desirable?)

Id. at 805-06. The Court nevertheless found that the Clarence Courier retained its ability to publish legal notices because it had "become a custom and practice of numerous small weekly newspapers in [Missouri] to suspend publication for one week to allow the publisher or publishers to have a vacation." Id. at 806.

In contrast, I.C. § 60-106 specifically provides a number of exceptions to its publication requirement, including strike or other labor dispute, breakdown, legal acts of public authorities or other acts beyond the control of the publisher. No reference is made to traditional holidays or customary vacations. When a statute specifies which areas are to be encompassed...

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