Troutner v. Kempthorne, 30959.

• Decision Date: 06 January 2006
• Docket Number: No. 30959.,30959.
• Citation: 128 P.3d 926,142 Idaho 389
• Parties: Katherine H. TROUTNER and Earnest D. Johnson, Plaintiffs-Appellants, v. Dirk KEMPTHORNE, in his official capacity as Governor of the State of Idaho, Robert L. Geddes, in his official capacity as President Pro Tempore of the Idaho State Senate, the Idaho State Senate and J. Philip Reberger, Defendants-Respondents.
• Court: Idaho Supreme Court

128 P.3d 926

142 Idaho 389

Katherine H. TROUTNER and Earnest D. Johnson, Plaintiffs-Appellants, v. Dirk KEMPTHORNE, in his official capacity as Governor of the State of Idaho, Robert L. Geddes, in his official capacity as President Pro Tempore of the Idaho State Senate, the Idaho State Senate and J. Philip Reberger, Defendants-Respondents.

No. 30959.

Supreme Court of Idaho, Boise, September 2005 Term.

January 6, 2006.

Huntley Park, LLP, for appellants. Daniel E. Williams, Boise, argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondents. Brett T. Delange, Deputy Attorney General, argued.

EISMANN, Justice.

This is an appeal from a judgment of the district court dismissing the Appellants' lawsuit seeking to have Respondent J. Philip Reberger removed from the Idaho Judicial Council. We affirm the judgment of the district court.

I. FACTS AND PROCEDURAL HISTORY

The Governor nominated, and the Senate confirmed, J. Philip Reberger (Reberger) to a term on the Idaho Judicial Council commencing on September 18, 2003, and expiring on July 1, 2009. On February 14, 2004, the Plaintiffs-Appellants (Plaintiffs) brought this action seeking to have Reberger removed from the Judicial Council. They named as Defendants Dirk Kempthorne as Governor of the state of Idaho, Robert L. Geddes as President Pro Tempore of the Idaho Senate, the Idaho Senate, and Reberger.

The Plaintiffs contended that Reberger's appointment to the Judicial Council violated Idaho Code § 1-2101(1), which provides:

There is hereby created a judicial council which shall consist of seven (7) permanent members, and one (1) adjunct member. Three (3) permanent attorney members, one (1) of whom shall be a district judge, shall be appointed by the board of commissioners of the Idaho state bar with the consent of the senate. Three (3) permanent nonattorney members shall be appointed by the governor with the consent of the senate. If any of the above appointments be made during a recess of the senate, they shall be subject to consent of the senate at its next session. The term of office for a permanent appointed member of the judicial council shall be six (6) years. Vacancies shall be filled for the unexpired term in like manner. Appointments shall be made with due consideration for area representation and not more than three (3) of the permanent appointed members shall be from one (1) political party. The chief justice of the Supreme Court shall be the seventh member and chairman of the judicial council. No permanent member of the judicial council, except a judge or justice, may hold any other office or position of profit under the United States or the state. The judicial council shall act by concurrence of four (4) or more members and according to rules which it adopts.

Specifically, the Plaintiffs contended that the appointment of Reberger, a Republican, resulted in four Republicans being on the Judicial Council, in violation of the provision that not more than three of the permanent appointed members shall be from one political party. To reach that result, they argued that the Honorable Randy Smith must be counted as being from the Republican Party because prior to becoming a district judge in 1996, he had been the chairman of the Idaho Republican Party. The Plaintiffs also contended that Reberger was ineligible for appointment because his membership on commissions or boards constituted holding another office or position of profit under the state.

The Defendants moved to dismiss the complaint, and, after hearing oral argument, the district court granted the motion. It held that the Plaintiffs lacked standing, that the issue was a non-justiciable political question, and that Reberger's appointment did not violate Idaho Code § 1-2101(1). The Plaintiffs then appealed.

II. ISSUES ON APPEAL

A. Do the Plaintiffs have standing?

B. Would judicial intervention in Reberger's appointment violate the doctrine of separation of powers?

C. Are the Plaintiffs entitled to an award of attorney fees?

III. ANALYSIS

A. Do the Plaintiffs Have Standing?

"Standing is a preliminary question to be determined by this Court before reaching the merits of the case." Young v. City of Ketchum, 137 Idaho 102, 104, 44 P.3d 1157, 1159 (2002). "The doctrine of standing focuses on the party seeking relief and not on the issues the party wishes to have adjudicated." Miles v. Idaho Power Co., 116 Idaho 635, 641, 778 P.2d 757, 763 (1989). To satisfy the requirement of standing, "litigants generally must allege or demonstrate an injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury." Id. "The injury must be distinct and palpable and not be one suffered alike by all citizens in the jurisdiction." Selkirk-Priest Basin Ass'n, Inc. v. State ex rel. Batt, 128 Idaho 831, 833-34, 919 P.2d 1032, 1034-35 (1996). There must also be a fairly traceable causal connection between the claimed injury and the challenged conduct. Young v. City of Ketchum, 137 Idaho 102, 44 P.3d 1157 (2002). An interest, as a concerned citizen, in seeing that the government abides by the law does not confer standing. Id.

In their complaint, the Plaintiffs alleged that they have standing because:

As members of the ISDP [Idaho State Democratic Party], Plaintiffs belong to the subset of the citizenry of the State of Idaho who have suffered a distinct palpable injury by being denied the chance to serve on the Judicial Council because of the appointment of a fourth member of the Republican Party to the Judicial Council.

The Plaintiffs have not alleged any distinct and palpable injury suffered by them. Their sole allegation of injury is that they and other members of the Idaho State Democratic Party were denied the chance to serve on the Judicial Council because of Reberger's appointment. Neither of the Plaintiffs had asked to be nominated to the Judicial Council vacancy filled by Reberger. Nomination by the Governor to the Judicial Council does not involve a merit selection process, and nobody has a right to be considered for such position. Even if a court removed Reberger, there is no requirement that the Governor consider the Plaintiffs or any other Democrat for the position.

The lack of any distinct and palpable injury to the Plaintiffs derives from the fact that Idaho Code § 1-2101(1) does not require that membership on the Council include persons from any particular political party, or that the members even be from a political party. It likewise does not require any balance of persons based upon their political or philosophical beliefs.¹ A person who is not currently a member of a political party would be eligible for appointment to the Council regardless of that person's prior party membership and regardless of that person's political or philosophical beliefs.² Thus, the Plaintiffs did not have any right to have a member of their political party appointed to Reberger's seat, and they did not even have a right to have someone appointed who would share their political or philosophical beliefs.

At most, the Plaintiffs can simply assert a generalized grievance that Reberger's appointment to the Judicial Council may have violated Idaho Code § 1-2101(1). We have consistently held, however, that citizens who have a generalized grievance shared by a large class of citizens do not have standing where they themselves have not suffered a distinct palpable injury as a result of the challenged conduct. Gallagher v. State, 141 Idaho 665, 115 P.3d 756 (2005); Young v. City of Ketchum, 137 Idaho 102, 44 P.3d 1157 (2002); Selkirk-Priest Basin Ass'n, Inc. v. State ex rel. Batt, 128 Idaho 831, 919 P.2d 1032 (1996). Their remedy is through the political process. Gallagher v. State, 141 Idaho 665, 115 P.3d 756 (2005).

To order Reberger removed from the Judicial Council because he constituted a fourth member of the Idaho Republican Party, we would have to hold that Judge Smith could not cease being a member of that party once he became a district judge. Even if we were to do so, we could not require the Governor to nominate a member of the Idaho State Democratic Party in Reberger's place. The Governor could appoint someone from any political party (other than the Republican Party), or he could appoint someone who had no party affiliation at all.

The Plaintiffs have failed to allege that they have suffered any distinct and palpable injury from Reberger's appointment or that the judicial relief requested will prevent or redress the claimed injury. Therefore, the district court did not err in holding that they lacked standing to bring this case.

B. Would Judicial Intervention in Reberger's Appointment Violate the Doctrine of Separation of Powers?

The district court also held that Reberger's appointment was a non-justiciable political question not subject to the court's review. This issue is based upon the doctrine of separation of powers embraced in Article II, § 1, of the Idaho Constitution.³ Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989). "The question is whether this Court, by entertaining review of a particular matter, would be substituting its judgment for that of another coordinate branch of government, when the matter was one properly entrusted to that other branch." Id. at 639, 778 P.2d at 761.

Idaho Code § 1-2101(1) provides that the Governor shall appoint, with the consent of the Senate, three of the seven permanent members of the judicial council. Article IV, § 6, of the Idaho Constitution provides, "The governor shall nominate and, by and with the consent of the senate, appoint all officers whose offices are established by this constitution, or which may be created by law, and whose appointment or election is not otherwise provided for." The framers of our Constitution understood that gubernatorial appointments are part of the political process. In Article IV, § 6, they provided senate confirmation as the check on the...