IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 44074-2016
HILL-VU MOBILE HOME PARK, on )
behalf of itself and all others similarly ) Boise, June 2017 Term
situated; and ED QUINN, on behalf of himself )
and all others similarly situated, ) 2017 Opinion No. 96
)
Plaintiffs-Appellants, ) Filed: September 6, 2017
)
v. ) Karel A. Lehrman, Clerk
)
CITY OF POCATELLO, an Idaho )
municipality, )
)
Defendant-Respondent. )
)
Appeal from the District Court of the Sixth Judicial District of the State of Idaho,
in and for Bannock County. Hon. Stephen S. Dunn, District Judge.
The judgment of the district court is vacated and this case is remanded.
Nathan M. Olsen, Petersen Moss Hall & Olsen, Idaho Falls, argued for appellants.
Blake G. Hall, Hall Angell & Associates, LLP, Idaho Falls, argued for
respondent.
EISMANN, Justice.
This is an appeal out of Bannock County from a judgment dismissing an action seeking
to recover money unlawfully collected by the City of Pocatello from users of the City’s water
and sewer systems. We vacate the judgment and remand this case for further proceedings that
are consistent with this opinion.
I.
Factual Background.
The City of Pocatello (“City”) owns and operates water and sewer systems for City
residents. In 2005, the city government decided that the City should be able to operate its water
and sewer systems at a profit like private utilities. By law, the City is required to charge and
collect sufficient fees so that its water and sewer systems “shall be and always remain self-
supporting.” I.C. § 50-1032. Those fees had to be sufficient to pay when due all bonds and
interest as required by Idaho Code section 50-1032(a) and “to provide for all expenses of
operation and maintenance of such works . . . , including reserves therefor,” as required by Idaho
Code section 50-1032(b). The reserves can also provide for improvements to such systems. I.C.
§ 50-1033.
The City wanted to obtain a profit in excess of the amounts necessary for the water and
sewer systems to remain self-supporting. This profit was paid into the general fund. City
officials believed that the City should be able to make a profit just as private utilities are able to
do, and so the City added an additional charge to water and sewer bills. The City called this
additional charge a “rate of return” or “return on equity,” which was an increased charge (profit)
included in the bills sent to users of the City’s water and sewer systems. As explained by the
City’s Chief Financial Officer: “The ‘rate of return’ policy refers to city-owned public utilities
(i.e. water, sewer, etc.) making a transfer to the general fund. These are businesses operated by
the public that could and do operate as for-profit private enterprises in other communities.” This
charge was in addition to the statutorily permitted charges to cover the costs of operation,
maintenance, replacement and depreciation, including creating and maintaining reserves for such
expenses. The City also adopted a policy called “PILOT,” which stood for payment in lieu of
taxes. Under this scheme, the city-owned water and sewer departments were required to pay
“property taxes” to the City as if they were private entities, and the departments then passed this
cost on to their customers. The “property taxes” were then paid into the City’s general fund. As
explained by the City’s Chief Financial Officer in 2012: “For the past two years, the rates have
been re-described as a franchise fee (% of gross revenues) and a payment-in-lieu-of-taxes
(PILOT) to make it directly comparable to private utilities operating in the community such as
Intermountain Gas. The PILOT is calculated on the prior year city property tax levy rate
multiplied by the estimated market value per the most recent financial plan prepared by an
outside consulting engineer.”
By letter dated December 26, 2006, Pocatello Mayor Chase asked the Attorney General
about the City’s policy of imposing the additional charge for a rate of return. In the letter, the
Mayor stated:
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Charging a rate of return is commonly used by public utilities and private
sector companies, and we feel it is a fairer way to generate revenue for the City.
As I am sure you are well aware, relying on property taxes for revenue will not
work in Pocatello due to the number of property tax exemptions given by the
State. Therefore, it has been my practice as Mayor to move our city away from
property taxes and to a fee based system. The rate of return is an important part of
this plan.
By letter dated February 6, 2007, a Deputy Attorney General responded to Mayor
Chase’s letter. In that letter, the Deputy wrote with respect to the City’s rate-of-return charge:
“The overall rate of return for the same utilities [Idaho’s three largest electric utilities] range [sic]
between 8.1% and 9.25%. According to the Robinson letter, the city’s “rate of return” is equal to
7% and generates approximately $3.54 million in revenues.” The letter included an analysis of
applicable law, and it concluded that analysis by stating: “In this instance, the revenue from the
rate of return component is dedicated to the city’s general fund and is utilized as a property tax
substitute. Thus, it appears this practice is contrary to Loomis [v. City of Hailey, 119 Idaho 434,
807 P.2d 1272 (1991)] and therefore not appropriate.”
The profit earned by the City from the return-on-equity charge and PILOT totaled about
$4 million during fiscal years 2006 through 2011. The City apparently stopped receiving the
return-on-equity charge in fiscal year 2012, and it stopped receiving the PILOT funds during
fiscal year 2014.
On December 9, 2011, the Building Contractors Association of Southeast Idaho filed an
action against the City challenging the PILOT, and the district court ultimately held that it was
an unlawful charge. On November 15, 2013, the district court entered a judgment enjoining the
City “from using the PILOT fee as part of the calculation of user and/or connection fees charged
to the public.” When the City discontinued the PILOT component in the bills sent to users of the
City water and sewer systems, their monthly bills decreased by about ten percent. 1
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Ironically, over 100 years ago, the City sued the owner of the water system that supplied water to the City,
contending that the rates being charged were “not fair, equitable, or reasonable” and that the earnings of the water
system should not exceed “five per cent above reasonable expenses upon the value of said water system.” City of
Pocatello v. Murray, 21 Idaho 180, 188, 191, 120 P. 812, 815 (1912). The City sought a writ of mandate requiring
the owner of the water system to appoint two commissioners in conformity with Idaho Revised Codes section 2839
(1908). Id. at 188, 120 P. at 814. Under the statute, the town and the owner of the water system each selected two
commissioners, who then selected a fifth commissioner, and the majority of the commissioners then determined the
water rates to apply for the next three years. This Court ordered that the writ issue. Id. at 211, 120 P. at 822–23.
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This shows that the City was operating its water and sewer “primarily as a source of
revenue to the city,” in violation of Idaho Code section 50-1028. The City made the decision
that its water and sewer departments should be operated as for-profit corporations in order to
raise revenues for the City’s general fund. The ten percent increase in monthly bills means that
the City was earning a profit of ten percent above the amount that was necessary to ensure that
its water and sewer systems would always remain self-supporting. That profit went into the
general fund, not into any reserves for the maintenance and improvement of the water and sewer
systems. Indeed, the rationale for the “rate of return” and the PILOT was the profit that the City
would earn if its water and sewer systems were for-profit entitities.
On April 15, 2014, the Plaintiffs filed this action seeking a refund of the PILOT sums that
they had paid. They also sought class certification for those who had been charged and paid the
illegal sum. On cross-motions for summary judgment, the district court held that the Plaintiffs’
state law claims were barred under the Idaho Tort Claims Act, that there was no unconstitutional
taking under the Fourteenth Amendment to the Constitution of the United States, that the
decision in the Building Contractors case would not be applied retroactively, and that the
Plaintiffs’ motion for class certification was denied. The court entered a judgment dismissing
the Plaintiffs’ complaint, and they timely appealed.
When reviewing on appeal the granting of a motion for summary judgment, we apply the
same standard used by the trial court in ruling on the motion. Infanger v. City of Salmon, 137
Idaho 45, 46–47, 44 P.3d 1100, 1101–02 (2002). We construe all disputed facts, and draw all
reasonable inferences from the record, in favor of the non-moving party. Id. at 47, 44 P.3d at
1102. Summary judgment is appropriate only if the evidence in the record and any admissions
show that there is no genuine issue of any material fact regarding the issues raised in the
pleadings and that the moving party is entitled to judgment as a matter of law. Id. If the
evidence reveals no disputed issues of material fact, then only a question of law remains, over
which this Court exercises free review. Id. In this case, there is no dispute regarding the
material facts.
II.
Did the District Court Err in Holding that Recovery of the PILOT Was Barred by Idaho
Code Section 6-904A?
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Idaho Code section 6-904A states, insofar as is relevant:
A governmental entity and its employees while acting within the course
and scope of their employment and without malice or criminal intent and without
reckless, willful and wanton conduct as defined in section 6-904C, Idaho Code,
shall not be liable for any claim which:
1. Arises out of the assessment or collection of any tax or fee.
The district court held that all of the Plaintiffs’ state-law claims were barred because their
“state law claims—unconstitutional taking, unjust enrichment, and equitable estoppel/equitable
tolling—arise out of the collection of the PILOT component, which was found to be a tax.” In so
holding, the district court erred.
“A municipality may collect fees considered incidental to regulation and enacted
pursuant to the municipality’s police powers.” Lewiston Indep. Sch. Dist. No. 1 v. City of
Lewiston, 151 Idaho 800, 804–05, 264 P.3d 907, 911–12 (2011). Pursuant to its proprietary
function, municipalities may also construct and maintain public works, Viking Const., Inc. v.
Hayden Lake Irr. Dist., 149 Idaho 187, 193, 233 P.3d 118, 124 (2010), and charge a fee “for a
direct public service rendered to the particular consumer,” Brewster v. City of Pocatello, 115
Idaho 502, 505, 768 P.2d 765, 768 (1988). Finally, a municipality may assess and collect taxes
if authorized by the legislature. Id. at 504, 768 P.2d at 767; Idaho Const. art. VII, § 2.
For a fee to be considered incidental to regulation, “funds generated thereby must bear
some reasonable relationship to the cost of enforcing the regulation.” Brewster, 115 at 504, 768
P.2d at 767. “Such municipal fees must be rationally related to the cost of enforcing the
regulation and cannot be assessed purely as a revenue-generating scheme.” Potts Constr. Co. v.
N. Kootenai Water Dist., 141 Idaho 678, 681, 116 P.3d 8, 11 (2005). The power to impose a
regulatory fee “may not be resorted to as a shield or subterfuge, under which to enact and enforce
a revenue-raising ordinance or statute.” Foster’s, Inc., v. Boise City, 63 Idaho 201, 218–19, 118
P.2d 721, 728 (1941). If the regulatory fee does not bear a reasonable relationship to the cost of
enforcing a regulation, it is considered as being a tax. Brewster, 115 at 504–05, 768 P.2d at 767–
68.
For a fee to be for water and sewer services provided by the municipality that is subject
to the Revenue Bond Act, as in this case, “the services of such works shall be furnished at the
lowest possible cost.” I.C. § 50-1028. “[I]f fees are collected under the disguise of the [Revenue
Bond] Act and allocated and spent otherwise, then the fees are primarily revenue raising and will
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be construed as taxes.” Loomis v. City of Hailey, 119 Idaho 434, 439, 807 P.2d 1272, 1277
(1991). “In a general sense a fee is a charge for a direct public service rendered to the particular
consumer, while a tax is a forced contribution by the public at large to meet public needs.”
Brewster, 115 at 505, 768 P.2d at 768.
In both of the above instances, the fee is considered to be a tax because its purpose is
primarily to raise revenue. “[I]f the fee or charge is imposed primarily for revenue raising
purposes, it is in essence a tax and can only be upheld under the power of taxation.” Idaho Bldg.
Contractors Ass’n v. City of Coeur d’Alene, 126 Idaho 740, 743, 890 P.2d 326, 329 (1995). A
fee or charge primarily for raising revenue is “in essence a tax,” id. (emphasis added); “a
disguised tax,” Lewiston Indep. Sch. Dist., 151 Idaho at 801, 264 P.3d at 912 (emphasis added);
or it “operates as general tax on the public,” Potts Constr. Co., 141 Idaho at 681, 116 P.3d at 11
(emphasis added). That classification is part of the analysis in determining whether the fee or
charge is lawful. If its purpose is primarily to raise revenue, it is not a regulatory fee or fee for
services, but is characterized as a tax. It would then only be valid if the city was authorized to
impose such a tax. See State v. Nelson, 36 Idaho 713, 722, 213 P. 358, 361 (1923) overruled on
other grounds by, Greater Boise Auditorium Dist. v. Royal Inn of Boise, 106 Idaho 884, 888, 684
P.2d 286, 290 (1984) (“A license that is imposed for revenue is not a police regulation, but a tax,
and can only be upheld under the power of taxation.”); Brewster v. City of Pocatello, 115 Idaho
502, 503, 768 P.2d 765, 766 (1988) (“There is no argument here that our legislature has
authorized the imposition of such a tax if indeed it is denominated a tax.”).
However, although fees or charges that are imposed primarily to raise revenues may be
considered as being a tax or in essence a tax, such fees or charges are not actually taxes, because
the legislature must invest in any county, city, town, or other municipal corporation “the power
to assess and collect taxes for all purposes of such corporation.” Idaho Const. art. VII, § 6.
“[T]he grant of taxing power to cities is not self-executing or unlimited. It is limited by what
taxing power the legislature authorizes in its implementing legislation.” Brewster, 115 Idaho at
503, 768 P.2d at 766. “A city or village cannot, in the exercise of its police power, levy taxes.”
Nelson, 36 Idaho at 722, 213 P. at 361. If the legislature has not granted a city the power to
impose a fee or charge as a tax, then such fee or charge is not actually a tax. There is no
contention that the legislature authorized the City to impose a tax like the charges that it added to
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the bills of users of the City’s water and sewer systems. Because those charges were not an
authorized tax, they were not a tax as that term is used in Idaho Code section 6-904A.
In BHA Investments, Inc. v. City of Boise, 141 Idaho 168, 108 P.3d 315 (2004), we held
that the fee versus tax analysis does not apply when a city does not have the authority to impose
either the fee or a tax. In BHA Investments, an entity referred to as “Splitting Kings” leased a
liquor license and agreed in the lease agreement to pay the liquor license transfer fee charged by
the City of Boise. Id. at 171, 108 P.3d at 318. Later, Splitting Kings and its lessor’s successor,
“Bravo,” sued Boise to recover damages for wrongful taking and unjust enrichment based upon
the exaction of the transfer fee. Id. The district court granted summary judgment to Boise on
three grounds, one of which was that “the fee charged by the City was a disguised tax and a party
cannot obtain reimbursement of a tax unless it is paid ‘under protest.’ ” Id. We held that the
analysis of whether the money collected was an unreasonable fee or a disguised tax had no
bearing where the city did not have the authority to impose either the fee or a tax. We stated:
We have also held that a city’s imposition of a purported fee that does not bear a
reasonable relationship to services to be provided by the city is in reality the
imposition of a tax. . . . .
The purpose of the analysis regarding excessive fees is to prevent a city
from imposing an illegal tax by masquerading it as a fee. That analysis does not
apply, however, where the city does not have the authority to impose either the tax
or the fee. If it has no authority to impose any fee at all, it does not matter
whether the fee imposed bears a reasonable relationship to the services provided.
It is illegal regardless of the amount of the fee. In this case, the City did not have
the authority to impose either a fee for the transfer of a liquor license or a tax on
the transfer of a liquor license. Therefore, the analysis of whether liquor license
transfer fee was in reality a disguised tax does not apply.
Id. at 176, 108 P.3d at 323 (citation omitted) (emphasis added). We also held that where Boise
“denominated the sum owing as a ‘fee,’ the payment-of-tax-under-protest requirement does not
apply.” Id. In this case, the City did not have the authority to add either the fee (PILOT) or a tax
to the bills of those who used City the water or sewer systems. The City also did not denominate
the additional charges as taxes. In fact, it raised the rates for water and sewer service so that it
would not have to take the politically unpopular route of raising property taxes.
“ ‘Whenever an act of the Legislature can be so construed and applied as to avoid
conflict with the Constitution and give it the force of law, such construction will be adopted by
the courts.’ ” Grice v. Clearwater Timber Co., 20 Idaho 70, 77, 117 P. 112, 114 (1911). As
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quoted above, Idaho Code section 6-904A provides that a governmental entity is not liable for a
claim that arises out of the assessment or collection of a tax unless the governmental entity was
acting with “malice or criminal intent and with[] reckless, willful and wanton conduct as defined
in section 6-904C.” The Idaho Constitution provides, “Private property may be taken for public
use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be
paid therefor.” Idaho Const. art. I, § 14. To hold that an unlawful fee or charge is a “tax” as that
term is used in section 6-904C would create a conflict between the statute and the Constitution.
A statute cannot limit the right to recover for the taking of property in violation of the
Constitution.
III.
Did the District Court Err in Holding that Money Is Not Property under the Takings
Clause of the Constitution?
The Plaintiffs alleged in their complaint that the unlawful additional charge for water and
sewer service was a taking under the Idaho and United States Constitutions. In granting
summary judgment, the district court held that the imposition of the PILOT was not a
compensable taking. It appeared to rely upon three grounds for that decision: (1) “Some courts
have made that determination on the grounds that money is not ‘property’ within the meaning of
the Takings Clause,” and (2) “Other courts ‘have concluded that a governmental-imposed
obligations to pay money are not the sort of governmental actions subject to a takings analysis.’ ”
(Citations omitted.) Both of these rationales are incorrect.
First, it is clear that money is property within the meaning of the takings clause. The
Supreme Court of the United States so held in Webb’s Fabulous Pharmacies, Inc. v. Beckwith,
449 U.S. 155 (1980). In that case, the purchaser of the assets of a corporation, whose debts
appeared greater than the purchase price, filed an interpleader action interpleading as defendants
the corporation and its creditors and paid into court the amount of the purchase price. Id. at 156–
57. Pursuant to a statute, the court clerk deducted a fee for services rendered for receiving the
money into the registry of the court and deposited the balance of the money into an interest
bearing account. Id. at 157. About a year later, a receiver was appointed for the corporation, and
the principal balance in the account was paid to the receiver, but the interest earned was retained
by the clerk pursuant to another statute which declared that the interest earned was public money.
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Id. at 158. The receiver obtained a court order holding that the clerk was not entitled to the
interest earned, and on appeal the Supreme Court of Florida held “that a fund so deposited is
‘considered “public money” ’ from the date of deposit until it leaves the account; that ‘the statute
takes only what it creates’; and that ‘[t]here is no unconstitutional taking because interest earned
on the clerk of the circuit court’s registry account is not private property.’ ” Id. at 158–59. The
United States Supreme Court reversed, because “[i]t is obvious that the interest was not a fee for
services” because the sum deducted by the clerk was for services rendered and “the exaction is a
forced contribution to general governmental revenues, and it is not reasonably related to the costs
of using the courts.” Id. at 162–163. Therefore, “the interest earned on the interpleader fund
while it was in the registry of the court was a taking violative of the Fifth and Fourteenth
Amendments.” Id. at 164–65. Likewise, in BHA Investments, Inc. v. City of Boise, 141 Idaho
168, 172, 108 P.3d 315, 319 (2004), we held, “Money is clearly property that may not be taken
for public use without the payment of just compensation.” Thus, the district court erred in
holding that money is not property under the Takings Clause.
Second, the cases cited by the district court regarding a governmental-imposed obligation
to pay money are inapposite. The issue in Commonwealth Edison Co. v. United States, 46 Fed.
Cl. 29 (2000) aff’d, 271 F.3d 1327 (Fed. Cir. 2001), was the constitutionality of legislation
“which imposes special monetary assessments on domestic utilities for the remediation of
environmentally contaminated uranium processing facilities owned by the United States.” Id. at
1329. The issue in Branch v. United States, 69 F.3d 1571, 1576–77 (Fed.Cir. 1995), cert.
denied, 519 U.S. 810 (1996), was whether a statute changing corporate liability for acts of sister
corporations constituted a taking. The statute at issue provided “that when a bank failure causes
a loss to the federal Bank Insurance Fund, sister banks that are owned by the same bank holding
company may be held liable for the loss.” Id. at 1573. In Meriden Trust & Safe Deposit Co. v.
F.D.I.C., 62 F.3d 449 (2d Cir. 1995), there was no taking where a bank voluntarily subjected
itself to a known obligation created by a failure of a commonly owned bank. Id. at 455. In
Commercial Builders of Northern California v. City of Sacramento, 941 F.2d 872 (9th Cir.
1991), the court held that an ordinance that “conditions certain types of nonresidential building
permits upon the payment of a fee intended to offset the burdens on the city caused by low-
income workers who move there to fill jobs created by the project in question” does not
constitute an unconstitutional taking where “the city had adequately supported its contribution
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requirement by showing a sufficient nexus between nonresidential development and the demand
for low-income housing.” Id. at 873. In United States Shoe Corp. v. United States, 296 F.3d
1378 (Fed. Cir. 2002), a harbor tax had been held unconstitutional as a violation of the Export
Clause of the Constitution, which states, “No Tax or Duty shall be laid on Articles exported from
any State.” On appeal to the United States Supreme Court, the government attempted to uphold
the tax as a user fee, but the Court held that “the tax, which is imposed on an ad valorem basis, is
not a fair approximation of services, facilities, or benefits furnished to the exporters, and
therefore does not qualify as a permissible user fee.” United States v. U.S. Shoe Corp., 523 U.S.
360, 363 (1998). The Shoe Corporation received a refund of the tax, and the Court of
International Trade awarded it interest on the refund. 296 F.3d at 1381. The government
appealed to the Federal Circuit, which addressed the Shoe Corporation’s arguments in support of
the award of interest, one of which was that the harbor tax was a taking in violation of the Fifth
Amendment. The court held it was not a taking because the amount of the tax was not excessive
when compared to the exporter’s use of port services. “Because ‘the Takings Clause is less
restrictive than the Export Clause,’ and the tax [of 0.125 percent] would be sustained if it ‘fairly
match[ed] the exporters’ use of port services and facilities,’ we conclude that the tax did not rise
to the level of a taking.” Id. at 1383–84. None of these cases involved a government entity
inflating its user fees to the point that they are clearly excessive when compared to the services
provided in order to raise revenue for the entity’s general fund.
More instructive is the decision of the United States Supreme Court in United States v.
Sperry Corp., 493 U.S. 52 (1989). After the seizure of the United States Embassy in Tehran on
November 4, 1979, the governments of the United States and Iran reached accords to provide a
means for resolving claims by American companies against Iran. Id. at 55. Pursuant to the
agreement, a tribunal was created to hear the claims, and litigation by Americans against Iran
was precluded in American courts. Id. at 55–56. Sperry Corporation and Sperry World Trade,
Inc. (hereinafter “Sperry”), had filed suit against Iran prior to the creation of the tribunal, but it
was prohibited from pursuing that claim. Id. at 56. Sperry therefore filed its claim with the
tribunal, and Sperry and Iran reached an agreement requiring Iran to pay Sperry $2.8 million. Id.
They submitted the claim to the tribunal, and, upon the tribunal granting the claim, it became
final and binding and enforceable in the courts of any nation in accordance with that nation’s
laws. Id. at 56–57. That enabled Sperry to have its claim paid from $1 billion in Iranian assets
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that had been placed in a Security Account in the Bank of England for the payment of those
awards. Id. at 57. Sperry’s award was paid through the Federal Reserve Bank of New York, and
Congress enacted legislation (“Section 502”) requiring the bank to deduct 1½% from Sperry’s
award “as reimbursement to the United States Government for expenses incurred in connection
with the arbitration of claims of United States claimants against Iran before [the] Tribunal and
the maintenance of the Security Account established pursuant to the [Accords].” Id. at 58.
Sperry sued, contending that the deduction constituted, among other things, the taking of
property by the government without just compensation. Id. The court of claims rejected
Sperry’s claim, but the Federal Circuit reversed, holding that the deduction was an
unconstitutional taking of Sperry’s private property without just compensation, and the
Government appealed. Id.
The Supreme Court held that the plaintiff was required to show that the amount of the
deduction was not a user fee to reimburse the United States Government for expenses it incurred
in connection with the arbitration of the claims against Iran in order to prove it was a taking. The
Court stated:
Section 502(a) specifically states that the deductions are made as
“reimbursement to the United States Government for expenses incurred in
connection with the arbitration of claims of United States claimants against Iran
before [the] Tribunal and the maintenance of the Security Account . . . .” Given
especially this specific declaration by Congress that the deductions are intended to
reimburse costs incurred by the United States, the burden must lie with Sperry to
demonstrate that the reality of § 502 belies its express language before we
conclude that the deductions are actually takings.
Id. at 60.
The Court then held that the amount deducted was not so clearly excessive as to show
that it was not a user fee. “This Court has never held that the amount of a user fee must be
precisely calibrated to the use that a party makes of Government services. . . . All that we have
required is that the user fee be a ‘fair approximation of the cost of benefits supplied.’ ” Id. The
Court stated that “[t]he deductions authorized by § 502 are not so clearly excessive as to belie
their purported character as user fees. . . . . [F]or we are convinced that on the facts of this case,
1½% does not qualify as a ‘taking’ by any standard of excessiveness.” Id. at 62. The Court
concluded that the benefits available to Sperry through the tribunal were “sufficient benefits to
justify the imposition of a reasonable user fee.” Id. at 64.
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In rejecting the claim that the deduction constituted a taking, the Court stated that “a
reasonable user fee is not a taking if it is imposed for the reimbursement of the cost of
government services.” Id. at 63. The Court did not hold that there was no taking because money
is not subject to the Takings Clause, nor did it hold that a user fee cannot be subject to the
Takings Clause. Rather, the Court held that a reasonable user fee is not a taking if it was to
reimburse the cost of government services. That proviso would be meaningless, as would the
Court’s discussion about the reasonableness of the fee in relation to the services provided, unless
the converse was also true—a “user fee” is a taking if it is not a reasonable fee imposed for the
reimbursement of the costs of government services.
The PILOT was not a reasonable user fee to reimburse the City for the cost of
government services. It was an exaction that was designed to be in addition to what would be a
reasonable charge for the water and sewer systems to remain self-supporting. In the Building
Contractors case, the City conceded that fact.
In denying the Plaintiffs’ motion for reconsideration in this case, the district court also
held that the PILOT was not a taking because: “In this case the City clearly had the authority to
charge the fees, but to the extent it used those fees for improper purposes, that portion of the fee
was a disguised tax and could not be collected. This is not a constitutional ‘taking’ but an
improper method of raising revenue.” The district court did not cite any authority for this
proposition. If an “improper method of raising revenue” cannot constitute a taking, then money
cannot be subject to the Takings Clause because all money received by the government is
revenue. Revenue is simply “the income of a government from taxation, excise duties, customs,
or other sources, appropriated to the payment of the public expenses.”
http://www.dictionary.com/browse/revenue?s=t (accessed July 17, 2017).
IV.
Did the District Court Err in Holding that Its Conclusion that the PILOT Was Unlawful
Would Not Be Applied to this Case?
The district court held that it would not apply its decision in the Building Contractors
case to this case, and so it dismissed the Plaintiffs’ complaint with prejudice. In so holding, the
court applied this Court’s analysis in BHA Investments, Inc. v. City of Boise, 141 Idaho 168, 108
P.3d 315 (2004) (BHA II). In a prior appeal (BHA I), we had held that a liquor license transfer
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fee imposed by the City of Boise was not authorized by the legislature. Id. at 170, 108 P.3d at
317. After our opinion in BHA I, the case of Bravo Entertainment, L.L.C. v. City of Boise was
brought seeking to recover the liquor license transfer fee paid by a party in that case, and the trial
court held that our opinion in BHA I should not apply retroactively to the Bravo Entertainment
case.
On appeal, we did not address whether the district court abused its discretion in refusing
to apply our BHA I opinion to the Bravo Entertainment case. Rather, we stated:
The usual rule is that decisions of this Court apply retroactively to all past and
pending cases. For policy reasons, however, this Court has discretion to limit the
retroactive application of a particular decision. We may hold that it does not
apply even to the case in which the decision was announced; or that it applies
only to that case and not to other past or pending cases; or that it applies to both
that case and pending cases, but not to past cases. When deciding whether to
limit the retroactive application of a decision, we weigh three factors: (1) the
purpose of the decision; (2) the reliance upon the prior law; and (3) the effect
upon the administration of justice if the decision is applied retroactively. We
balance the first factor against the other two to determine whether to limit the
retroactive application of the decision.
Id. at 173, 108 P.3d at 320 (emphases added)(Citations omitted). In the above-quoted statement
from BHA I, we made it clear that it is this Court sitting in its appellate capacity that has
discretion to limit the retroactive application of a particular decision. That is exactly what
happened in BHA II. We did not even address the trial court’s determination or rationale for
holding that BHA I would not be applied retroactively. We addressed the three factors, weighed
them, and concluded that the retroactive application of our decision in BHA I should not be
limited. Id. We have not held that a trial court has discretion to refuse to apply a decision it
made on an issue in one case to another case involving the same issue. Therefore, the district
court erred in holding that it would not apply its decision in the Building Contractors case to this
case.
V.
Did the District Court Err in Failing to Consider Equitable Remedies?
The Plaintiffs contend that the district court erred in failing to consider equitable
remedies. Since the district court granted the City’s motion for summary judgment on all claims,
the court did not consider any remedies. “This Court does not review an alleged error on appeal
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unless the record discloses an adverse ruling forming the basis for the assignment of error.” Ada
Cnty. Highway Dist. v. Total Success Investments, LLC, 145 Idaho 360, 368, 179 P.3d 323, 331
(2008). Therefore, we will not consider this issue.
The Plaintiffs also assert that they attempted to amend their complaint, which motion the
district court denied. The district court denied the motion on various grounds—“undue delay,
timeliness, court-imposed deadlines, substantial work being done, prejudice, and validity of the
claim.” The Plaintiffs do not address any of those grounds on appeal, much less all of them.
Therefore, to the extent that the Plaintiffs are contending that the court erred in denying their
motion to amend, we will not address that issue. “We will not consider assignments of error not
supported by argument and authority in the opening brief.” Hogg v. Wolske, 142 Idaho 549, 559,
130 P.3d 1087, 1097 (2006).
VI.
Is the City Entitled to an Award of Attorney Fees on Appeal?
The City seeks an award of attorney fees on appeal pursuant to Idaho Code sections 6-
918A and 12-117. Idaho Code section 6-918A provides:
At the time and in the manner provided for fixing costs in civil actions,
and at the discretion of the trial court, appropriate and reasonable attorney fees
may be awarded to the claimant, the governmental entity or the employee of such
governmental entity, as costs, in actions under this act, upon petition therefor and
a showing, by clear and convincing evidence, that the party against whom or
which such award is sought was guilty of bad faith in the commencement,
conduct, maintenance or defense of the action. . . . . The right to recover attorney
fees in legal actions for money damages that come within the purview of this act
shall be governed exclusively by the provisions of this act and not by any other
statute or rule of court, except as may be hereafter expressly and specifically
provided or authorized by duly enacted statute of the state of Idaho.
The statute provides that if, “upon a showing, by clear and convincing evidence, that the
party against whom or which such award is sought was guilty of bad faith in the commencement,
conduct, maintenance or defense of the action,” reasonable attorney fees may be awarded as
costs “at the discretion of the trial court.” In Minich v. Gem State Developers, Inc., 99 Idaho
911, 591 P.2d 1078 (1979), this Court held that the word “judge” in Idaho Code section 12-121
“is simply an officer or member of a tribunal assembled under authority of law for the
administration of justice, we conclude that the singular ‘judge’ should also be construed to mean
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the plural ‘judges’ or ‘justices,’ ” thereby authorizing the award of attorney fees on appeal under
that statute. Id. at 918, 591 P.2d at 1085. We also stated that “had the legislature intended to
limit the statutory authority to any particular level of courts within the judicial system, it could
easily and clearly have done so.” Id.
Idaho Code section 6-918A clearly states that upon the proper showing, attorney fees
may be awarded under that statute “at the discretion of the trial court.” The words “trial court”
could not reasonably be construed to include an appellate court. Therefore, Idaho Code section
6-918A does not provide for the awarding of attorney fees on appeal.
This Court has never previously addressed the meaning of the words “trial court” in
section 6-918A. We have previously denied requests for an award of attorney fees on appeal
pursuant to the statute because there was no showing that the party against whom attorney fees
was sought was “guilty of bad faith in the commencement, conduct, maintenance or defense of
the action.” We have not, however, previously addressed the meaning of the words “trial court”
in the statute, nor have we even quoted that part of the statute that includes those words.” CNW,
LLC v. New Sweden Irrigation Dist., 161 Idaho 89, 93 n.1, 383 P.3d 1259, 1263 n.1 (2016);
Hennefer v. Blaine Cnty. Sch. Dist., 158 Idaho 242, 261–62, 346 P.3d 259, 278–79 (2015); Block
v. City of Lewiston, 156 Idaho 484, 490, 328 P.3d 464, 470 (2014); Hoffer v. City of Boise, 151
Idaho 400, 403, 257 P.3d 1226, 1229 (2011); Renzo v. Idaho State Dep’t of Agr., 149 Idaho 777,
781, 241 P.3d 950, 954 (2010); Cordova v. Bonneville Cnty. Joint Sch. Dist. No. 93, 144 Idaho
637, 642–43, 167 P.3d 774, 779–80 (2007); Dorea Enterprises, Inc. v. City of Blackfoot, 144
Idaho 422, 426, 163 P.3d 211, 215 (2007); Nation v. State, Dep’t of Correction, 144 Idaho 177,
194, 158 P.3d 953, 970 (2007); O’Guin v. Bingham Cnty., 142 Idaho 49, 55–56, 122 P.3d 308,
314–15 (2005); Jensen v. State, 139 Idaho 57, 64–65, 72 P.3d 897, 904–05 (2003); Tomich v.
City of Pocatello, 127 Idaho 394, 400, 901 P.2d 501, 507 (1995).
In Block, we did cite Beehler v. Fremont County, 145 Idaho 656, 182 P.3d 713 (Ct. App.
2008), but it was for the proposition, “(holding I.C. § 12-117 did not provide an exception after
noting it has held that ‘I.C. § 6-918A governed to the exclusion of all other standards when the
case was brought under the ITCA’).” 156 Idaho at 490, 328 P.3d at 470. In Beehler, the issue
was whether the requirement in Idaho Code section 6-610 of posting a bond before filing an
action against any law enforcement officer that arises in the course of performance of the
officer’s duty was superseded by the later enactment of Idaho Code section 6-918A. 145 Idaho
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at 658, 182 P.3d at 715. The appellant contended that section 6-918A superseded section 6-610
because both statutes address attorney fees. Id. at 659, 182 P.3d at 716. The Court of Appeals
held that “[t]here is no indication that the legislature intended I.C. § 6-918A to terminate the
applicability of I.C. § 6-610 in tort claims.” Id.
With respect to the respondents’ request for an award of attorney fees on appeal in
Beehler, the Court of Appeals held that they had not shown by clear and convincing evidence
that the appellants had proceeded in bad faith. Id. at 661, 182 P.3d at 718. The Court of Appeals
did state, “Section 6–918A is the exclusive provision for awarding attorney fees under the ITCA,
including claims on appeal.” Id. at 661, 182 P.3d at 718. However, the Court of Appeals did not
quote or consider that portion of the statute stating that attorney fees may be awarded “at the
discretion of the trial court.” Rather, it cited as authority for that statement Nation v. State, 144
Idaho 177, 194, 158 P.3d 953, 970 (2007); Jensen v. State, 139 Idaho 57, 64–65, 72 P.3d 897,
904–05 (2003); and Packard v. Joint Sch. Dist. No. 171, 104 Idaho 604, 614, 661 P.2d 770, 780
(Ct.App.1983). In Nation and Jensen, we had simply denied requests to award attorney fees on
appeal pursuant to Idaho Code section 6-918A on the ground that there was no showing that the
appeal had been brought in bad faith. Nation, 144 Idaho at 194, 158 P.3d at 970; Jensen, 139
Idaho at 64–65, 72 P.3d at 904–05. In those cases we did not quote or discuss that part of section
6-918A that referred to the “trial court.” In Packard, the Court of Appeals held: “Assuming,
without deciding, that neither party would be entitled to recover attorney fees on appeal unless
the opposing party had exhibited ‘bad faith’ within the meaning of I.C. § 6–918A, we believe no
award could be made. This appeal has been free of bad faith.” 104 Idaho at 614, 661 P.2d at
780. (Emphasis added). We have never previously addressed the issue of the scope of section 6-
918A in light of the words “trial court,” not only regarding whether the statute permitted the
award of attorney fees on appeal, but also with respect to what impact, if any, those words would
have on the exclusivity provision in the statute.
The City also seeks an award of attorney fees pursuant to Idaho Code section 12-121. “In
order to be eligible for an award of attorney fees under Idaho Code section 12-121, the party
must be the prevailing party on appeal.” Armand v. Opportunity Mgmt. Co., Inc., 155 Idaho 592,
602, 315 P.3d 245, 255 (2013). Thus, the City is not entitled to an award of attorney fees on
appeal, assuming that it would apply. Because the issue is not raised in this appeal, we do not
decide whether the exclusivity provision in section 6-918A only applies to the awarding of
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attorney fees in the trial court or also prevents the awarding of attorney fees on appeal pursuant
to another statute.
VI.
Conclusion.
We vacate the judgment and amended judgments in this action and remand this case for
further proceedings that are consistent with this opinion. We award the Appellants costs on
appeal.
Chief Justice BURDICK, and Justices JONES, HORTON and BRODY CONCUR.
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