State v. Yzaguirre

• Decision Date: 25 May 2007
• Docket Number: No. 33048.,33048.
• Citation: 144 Idaho 471,163 P.3d 1183
• Parties: STATE of Idaho, Plaintiff-Counterdefendant-Respondent, v. Rick YZAGUIRRE, Chairman, Ada County Board of County Commissioners, Judy Peavey-Derr, Member, Ada County Board of Commissioners, Fred Tilman, Member, Ada County Board of County Commissioners, Defendants-Counterclaimants-Appellants.
• Court: Idaho Supreme Court

163 P.3d 1183

144 Idaho 471

STATE of Idaho, Plaintiff-Counterdefendant-Respondent, v. Rick YZAGUIRRE, Chairman, Ada County Board of County Commissioners, Judy Peavey-Derr, Member, Ada County Board of Commissioners, Fred Tilman, Member, Ada County Board of County Commissioners, Defendants-Counterclaimants-Appellants.

No. 33048.

Supreme Court of Idaho, Boise, May 2007 Term.

May 25, 2007.

Patrick D. Furey, Boise, for appellants.

Honorable Lawrence G. Wasden, Attorney General, Boise, for respondent. Deputy Attorney General, Mitchell E. Toryanski argued.

Moore, Smith, Buxton & Turcke, Chtd., Boise, for Idaho Association of Counties, as amicus curiae. Susan E. Buxton argued.

SCHROEDER, Chief Justice.

This appeal calls upon the Court to determine the scope of the "litigation exception" to the open meeting law under I.C. § 67-2345(1)(f). The statute has since been amended, addressing the issue in this case, thereby rendering this decision valueless as precedent on the litigation exception. The subsidiary issue of what constitutes "written minutes" could have been removed from the case by transcribing a recording at little cost compared to the public funds being expended for this litigation. The third issue concerns the question of the intent that must be proved to establish a violation of the open meeting law.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 15, 2005, Ada County Commissioners Rick Yzaguirre, Judy Peavey-Derr, and Fred Tilman met officially in open session as the Ada County Board of Commissioners. Upon commencement of the meeting the Board voted to go into executive session under the "litigation exception," I.C. § 67-2345(1)(f), to meet with Boise City Councilman Vern Bisterfeldt. The votes were not recorded in the handwritten notes of the meeting, but they were preserved in an audio recording that was not transcribed but is available to the public. The executive session was not recorded. The public was not permitted to attend the executive session.

In the executive session, the Commissioners and Councilman Bisterfeldt discussed relations between Boise City and Ada County which had become strained over the issue of a potential subdivision approval in the county and the impact of county development on the cost of city services. The meeting did not relate to pending litigation, but the Commissioners claim that the topics discussed were the subject of probable future litigation. No legal counsel was present at the meeting.

The State filed suit against the Commissioners, seeking a declaration that the executive session violated the open meeting law and requesting the imposition of civil penalties against each of the Commissioners individually. These penalties would be a fine of $150.00 against each Commissioner. The Commissioners answered and counterclaimed for a declaratory judgment as to the meaning of I.C. § 67-2345(1)(f). The district court granted the State's motion for judgment on the pleadings, holding that I.C. § 67-2345(1)(f) applies only when a governing body is meeting with its legal counsel, and that the audio recording failed to satisfy the requirement in I.C. § 67-2345(1) that the vote to enter executive session be "recorded in the minutes."

The Commissioners appeal. The Idaho Association of Counties is before the Court as amicus curiae on the issues of whether the litigation exception requires the presence of an attorney and whether there is a good faith exception to the civil penalty provision of I.C. § 67-2347(2).

II. STANDARD OF REVIEW

A judgment on the pleadings is reviewed under the same standard as a ruling on summary judgment. Trimble v. Engelking, 130 Idaho 300, 302, 939 P.2d 1379, 1381 (1997). Summary judgment is proper where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c). For purposes of a motion for judgment on the pleadings, the moving party admits all the allegations of the opposing party's pleadings and also admits the untruth of its own allegations to the extent they have been denied. Sterling v. Bloom, 111 Idaho 211, 212, 723 P.2d 755, 756 (1986) (superseded on other grounds by statute). This Court freely reviews the interpretation of a statute and its application to the facts. VFP VC v. Dakota Co., 141 Idaho 326, 331, 109 P.3d 714, 719 (2005).

III. THE ISSUES

This appeal presents three questions of law. The first is whether the "litigation exception" in former I.C. § 67-2345(1)(f) can apply where no legal counsel is present. The second is whether an audio recording of a vote to enter executive session satisfies the requirement in I.C. § 67-2345(1) that the votes be recorded in the minutes. A further issue arises as to whether a violation warrants the imposition of civil penalties against the Commissioners under I.C. § 67-2347(2).

A. Litigation Exception

1. Idaho Code § 67-2345(1)(f) does not require the presence of an attorney "where there is a general public awareness of probable litigation."

Idaho's legislature has declared that "the formation of public policy is public business and shall not be conducted in secret." I.C. § 67-2340. Idaho's open meeting law provides that "all meetings of a governing body of a public agency shall be open to the public and all persons shall be permitted to attend any meeting except as otherwise provided by this act." I.C. § 67-2342(1). An exception is provided for "executive sessions," during which a governing body may exclude the public "for deliberation on certain matters." I.C. § 67-2341(3). Executive sessions are authorized for any of the purposes enumerated in I.C. § 67-2345(1), but "[n]o executive session may be held for the purpose of taking any final action or making any final decision." I.C. § 67-2345(3).

The present dispute concerns the scope of the "litigation exception" in former I.C. § 67-2345(1)(f), which provided that a governing body could hold an executive session "To consider and advise its legal representatives in pending litigation or where there is a general public awareness of probable litigation." I.C. § 67-2345(1)(f) (2006).¹ The district court held that I.C. § 67-2345(1)(f) "can be exercised only when a governing body is meeting with its legal counsel to discuss pending litigation or probable litigation about which there is general public awareness." This is an issue of statutory interpretation.

The objective of statutory interpretation is to give effect to legislative intent. Robison v. Bateman-Hall, 139 Idaho 207, 210, 76 P.3d 951, 954 (2003). Because "the best guide to legislative intent is the words of the statute itself," the interpretation of a statute must begin with the literal words of the statute. In re Permit No. 36-7200, 121 Idaho 819, 824, 828 P.2d 848, 853 (1992); accord McLean v. Maverik Country Stores, Inc., 142 Idaho 810, 813, 135 P.3d 756, 759 (2006). Where the statutory language is unambiguous, the Court does not construe it but simply follows the law as written. McLean, 142 Idaho at 813, 135 P.3d at 759. The plain meaning of a statute therefore will prevail unless clearly expressed legislative intent is contrary or unless plain meaning leads to absurd results. Gillihan v. Gump, 140 Idaho 264, 266, 92 P.3d 514, 516 (2004). In determining its ordinary meaning "effect must be given to all the words of the statute if possible, so that none will be void, superfluous, or redundant." State v. Mercer, 143 Idaho 108, 109, 138 P.3d 308, 309 (2006) (quoting In re Winton Lumber Company, 57 Idaho 131, 136, 63 P.2d 664, 666 (1936)).

If the language of the statute is capable of more than one reasonable construction it is ambiguous. Carrier v. Lake Pend Oreille Sch. Dist. No. 84, 142 Idaho 804, 807, 134 P.3d 655, 658 (2006). An ambiguous statute must be construed to mean what the legislature intended it to mean. Id. To ascertain legislative intent, the Court examines not only the literal words of the statute, but the reasonableness of the proposed interpretations, the policy behind the statute, and its legislative history. Id.

Both litigants and the amicus argue that the meaning of I.C. § 67-2345(1)(f) can be gleaned from a plain reading of its language. Each of the three parties proposes a different plain reading. The provision, again, reads as follows:

An executive session may be held:

* * *

To consider and advise its legal representatives in pending litigation or where there is a general public awareness of probable litigation.

I.C. § 67-2345(1)(f). The parties agree that "its legal representatives" refers to legal counsel for the governing body holding the meeting. The issue is whether a governing body may discuss probable litigation in executive session without simultaneously advising its legal representatives.

The Commissioners argue that the statute should be read, in essence, as follows:

An executive session may be held to consider, and advise its legal representatives in, litigation that is (1) pending or (2) sufficiently probable as to arouse general public awareness.

According to the Commissioners, the word "and" does not require that a governing body must conduct both activities at once ("consider and advise"), but merely enumerates two separate purposes for which executive session is authorized in connection with litigation.

Amicus Idaho Association of Counties reads the statute somewhat differently:

An executive session may be held (1) to consider pending litigation; (2) to advise its legal representatives in pending litigation; or (3) where there is a general public awareness of probable litigation.

According to the amicus, "to" and "where" each begin a separate clause. The first clause, which contains the "consider and advise" language, sets forth several purposes for which an executive session is authorized. The second clause, beginning with "where," identifies a circumstance...