IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 33048
STATE OF IDAHO, )
)
Plaintiff-Counterdefendant-Respondent, )
) Boise, May 2007 Term
v. )
) 2007 Opinion No. 85
RICK YZAGUIRRE, Chairman, Ada County )
Board of County Commissioners, JUDY ) Filed: May 25, 2007
PEAVEY-DERR, Member, Ada County )
Board of Commissioners, FRED TILMAN, ) Stephen W. Kenyon, Clerk
Member, Ada County Board of County )
Commissioners, )
)
Defendants-Counterclaimants-Appellants. )
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, Ada County. Honorable William H. Woodland, District Judge.
The decision of the district court is affirmed in part, reversed in part and
remanded.
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).
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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).
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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.
1
While this appeal was pending, the legislature amended I.C. § 67-2345(1)(f) to read as follows:
To communicate with legal counsel for the public agency to discuss the legal
ramifications of and legal options for pending litigation, or controversies not yet
being litigated but imminently likely to be litigated. The mere presence of legal
counsel at an executive session does not satisfy this requirement.
S.B. 1085, 59th Leg., 1st Reg. Sess., 2007 Idaho Sess. Laws ch. 174 (enacted March 26, 2007).
The amendment, which becomes effective July 1, 2007, does not affect the outcome of this case.
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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 in
which it is allowed.
The State reads the statute thusly:
An executive session may be held to consider and advise its legal representatives
(1) in pending litigation or (2) where there is a general public awareness of
probable litigation.
According to the State, the only permissible purpose for an executive session is “to consider and
advise its legal representatives.” The remaining language simply clarifies that the consideration
and advice must concern pending or probable litigation.
Ambiguity is not established merely because the parties present differing interpretations
to the court. In re Permit No. 36-7200, 121 Idaho at 823-24, 828 P.2d at 852-53. If the language
5
of the statute is reasonably susceptible of only one interpretation, the statute is unambiguous and
there is no occasion to look beyond the text of the statute. See Id. at 822-24, 828 P.2d at 851-53;
Carrier, 142 Idaho at 807, 134 P.3d at 658. The first step is to examine the literal words of the
statute to determine whether they support the parties’ differing interpretations.
A careful reading of the statute reveals that there is only one grammatically acceptable
interpretation. Contrary to the State’s assertion, the statute does not contemplate that a
governing body would “consider its legal representatives.” Plainly the statute allows a governing
body to “consider pending litigation.” Thus, a governing body may hold an executive session
“to consider, and advise its legal representatives in, pending litigation.” The State’s
interpretation would read “consider” to mean “consult.” It strains the ordinary meaning of
“consider.” The result urged by the State cannot be reconciled with the text of the statute.
It follows that the second part of the statute, “where there is a general public awareness of
probable litigation,” constitutes a separate and independent circumstance under which executive
sessions may be held. Under the State’s interpretation, “in” and “where” are parallel; each
subclause (“in pending litigation” and “where there is a general public awareness of probable
litigation”) specifies an alternative condition under which a governing body may “consider and
advise its legal representatives.” This interpretation, however, only works if “consider and
advise its legal representatives” stands by itself, or in other words if “consider” refers to “its
legal representatives.” On the other hand, if “consider” refers to “pending litigation,” then
“where” does not follow grammatically from anything else in (1)(f), but must follow directly
from “held.” In other words, “to” and “where” each signify independent conditions under which
“an executive session may be held.” Thus,
An executive session may be held: (1) to consider, and advise its legal
representatives in, pending litigation; or (2) where there is a general public
awareness of probable litigation.
This is the only interpretation that makes grammatical sense of the provision without requiring a
governing body to “consider its legal representatives,” whatever that might mean.
This is not an absurd result. Probable litigation by definition involves situations where
litigation may or may not occur. The legislature chose to rely on a “general public awareness”
requirement rather than an attorney presence requirement to perform the gatekeeping function in
such cases. The State’s concerns about a potential for abuse were properly addressed to the
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legislature which has acted, rendering the precedential value of this case nominal, and the
continued expense of public funds on this defunct legislation wasteful.
Under the plain language of the statute the presence of legal counsel is irrelevant because
the Commissioners were deliberating upon probable, not pending, litigation. According to the
pleadings, the matters discussed at the executive session were the subject of probable litigation,
and there was a general public awareness of that probability. Although there is disagreement as
to whether the executive session considered matters outside the permissible scope of such
sessions, for purposes of a motion for judgment on the pleadings, the executive session was
authorized under the “probable litigation” clause of I.C. § 67-2345(1)(f). It is not necessary to
decide whether legal counsel must be present to deliberate upon pending litigation because no
litigation was pending.
2. Whether there was a general public awareness of probable litigation is not at
issue in this appeal.
Even if an attorney is not required, the State contends the statute was violated because
some topics discussed in the executive session did not relate to litigation at all. Both parties
submitted affidavits to the district court in support of their characterization of what was
discussed at the meeting, but the district court properly did not address the issue in its decision.
Whether the subject matter of the meeting qualified under I.C. § 67-2345(1)(f) is a disputed issue
of fact that cannot be resolved in the motion for judgment on the pleadings.
B. Minutes
1. The motion and votes to enter executive session were not recorded in the minutes
as required by law.
Under the open meeting law, an executive session not only must convene for an
authorized purpose but also must comply with procedural requirements. The Commissioners
voted unanimously by roll call vote to enter executive session. However, the State alleges that
the executive session did not comply with the open meeting law because the minutes do not
reflect who made the motion to go into executive session or who voted on the motion.
The decision to enter executive session must be approved by “a two-thirds (2/3) vote
recorded in the minutes of the meeting by individual vote.” I.C. § 67-2345(1). Moreover, I.C. §
67-2344(1) provides as follows:
The governing body of a public agency shall provide for the taking of
written minutes of all its meetings. Neither a full transcript nor a recording of the
7
meeting is required, except as otherwise provided by law. All minutes shall be
available to the public within a reasonable time after the meeting, and shall
include at least the following information:
(a) All members of the governing body present;
(b) All motions, resolutions, orders, or ordinances proposed and their
disposition;
(c) The results of all votes, and upon the request of a member, the vote
of each member, by name.
The Commissioners concede that the votes are not recorded in the handwritten notes from
the meeting and apparently concluded that litigating this issue was of more consequence than the
expedient of transcribing the recording for a few dollars. They argue that the statutory
requirements are satisfied because the information is preserved in an audio recording of the
meeting. They argue that the purposes of the statute are better served by an audio recording than
by handwritten notes because a summary necessarily omits information whereas a recording
preserves a complete and accurate account of the proceedings. They also point to the Public
Records Act, I.C. §§ 9-337 et seq., which defines “writing” to include “every means of
recording, including . . . sounds.” I.C. § 9-337(15) (Supp. 2006). That definition is not part of
the open meeting law.
Legislative definitions of terms included within a statute control and dictate the meaning
of those terms as used in the statute. White v. Mock, 140 Idaho 882, 890, 104 P.3d 356, 364,
(2004). Statutory definitions provided in one act do not apply “for all purposes and in all
contexts but generally only establish what they mean where they appear in that same act.”
Maguire v. Yanke, 99 Idaho 829, 836, 590 P.2d 85, 92 (1978). Where the legislature has not
provided a definition in the statute, terms in the statute are given their common, everyday
meanings. Landis v. DeLaRosa, 137 Idaho 405, 407, 49 P.3d 410, 412 (2002).
The open meeting law does not explicitly define “written.” It does, however, distinguish
recording from taking minutes: “the taking of written minutes” is mandatory, whereas “neither a
full transcript nor a recording of the meeting is required.” I.C. § 67-2344(1). The common,
ordinary meaning of the term “written” refers to words or symbols recorded in visual form. See
Black’s Law Dictionary 1641 (8th ed. 2004) (defining “writing” as “Any intentional recording of
words in a visual form, whether in the form of handwriting, printing, typewriting, or any other
tangible form). An audio recording is not a “written” record as that term is commonly
understood.
8
Neither the Public Records Act nor the cases from other jurisdictions cited by the
Commissioners are applicable. The interpretation urged by the Commissioners contradicts the
statutory text: if “every means of recording” constitutes writing, as the Commissioners argue,
then nothing is accomplished by specifying that minutes must be in written form, and the term
“written” becomes superfluous.
The Commissioners’ argument about the superiority of an audio recording over a written
summary presupposes issues of policy. Recording meetings is a commendable practice, but as
the district court noted, there are also advantages to having the information in written,
summarized form. In any event, policy considerations are irrelevant to whether the
Commissioners complied with the statute. The legislature clearly expressed its intent to require
written minutes.
The executive session did not comply with the open meeting law. The handwritten notes
in the record, which are the only written record of the meeting, do not reflect who voted to go
into executive session as required by I.C. § 67-2345(1).
C. Civil Penalty
1. The Commissioners may assert a good-faith defense to the imposition of civil
penalties under I.C. § 67-2347(2).
There are two consequences where the open meeting law is violated. First, any action
taken at a meeting that violates the open meeting law is null and void. I.C. § 67-2347(1). This
provision does not apply in this case because no action or decision is being challenged.
The other remedy, added by amendment in 1992, provides for a civil penalty against any
member of a governing body “who knowingly conducts or participates in a meeting which
violates the provisions of this act.” I.C. § 67-2347(2). The Commissioners argue that even if
there was a violation, they are entitled to dismissal because they believed the meeting complied
with the statute. The State contends that the Commissioners’ beliefs are irrelevant because there
is no good faith defense under the statute. According to the State, liability attaches upon a
showing that (1) the Commissioners participated in the meeting, (2) they knew they were
participating in the meeting, and (3) the meeting violated the open meeting law.
The mental state necessary to impose a civil penalty under the statute depends on the
language of the statute. State v. Fox, 124 Idaho 924, 925-26, 866 P.2d 181, 182-83 (1993)
(quoting State v. Sterrett, 35 Idaho 580, 583, 207 P. 1071, 1072 (1922)) (“[W]hether a criminal
9
intent is a necessary element of a statutory offense is a matter of construction, to be determined
from the language of the statute in view of its manifest purpose and design . . . .”). In
interpreting statutory language, all the words of the statute must be given effect if possible, and
the statute must be construed as a whole. In re Permit No. 36-7200, 121 Idaho at 822-23, 828
P.2d at 851-52.
The legislature’s inclusion of the word “knowingly” in the statute indicates that it
intended to condition the availability of a civil penalty on the defendant’s mental state. The
State’s interpretation would make the Commissioners strictly liable for any violation of the open
meeting law simply for having conducted or participated in the meeting. If the legislature had
intended this result, there would have been no need to reference a mental state because
conducting and participating are intentional acts. “Knowingly” implies something more than a
voluntary act; under the State’s interpretation it becomes surplusage. In order to give meaning to
every term, the statute must be interpreted to require knowledge that the meeting violated the
open meeting law.
The State argues that a mistake of law is not a defense, relying on this Court’s opinion in
State v. Fox. The defendant in Fox was convicted of possessing ephedrine, a controlled
substance, without a prescription. Fox claimed he lacked the necessary mens rea because he did
not know ephedrine was a controlled substance. The Court rejected his argument, holding that
the relevant statute did not require an intent to commit a crime, but merely the intent to perform
the prohibited act. 124 Idaho at 926, 866 P.2d at 183. The question was whether he knowingly
possessed ephedrine without a prescription, not whether he knew it was illegal to do so. Id.
This case is distinguishable from Fox. The holding in Fox was based on the text of the
applicable statute; its reasoning applies only in “the absence of specific language to the
contrary.” Id. The statute in Fox did not set forth any mental state as an element of the offense,
and thus only a general criminal intent was required. Id. Idaho Code § 67-2347(2) specifies that
the individual must act “knowingly.” By its plain language, the statute imposes a civil penalty
only where the participant was aware that the meeting violated the open meeting law.
The Commissioners are not subject to civil penalties unless, when they held the executive
session, they knew it was not in compliance with the open meeting law. Knowledge of a
violation may be inferred, but it is a prerequisite to liability under I.C. § 67-2347(2). The
Commissioners claim they honestly believed the executive session complied with the open
10
meeting law. Taking the Commissioners’ allegations to be true, the State is not entitled to
judgment as a matter of law. However, the mental state of the Commissioners or any individual
Commissioner is a question of fact to be determined.
IV.
CONCLUSION
Idaho Code § 67-2345(1)(f) allows a governing body to meet in executive session “where
there is a general public awareness of probable litigation.” The statute does not require that an
attorney be present at such meetings.
However, the executive session violated the open meeting law because the motion and
votes to enter executive session were not recorded in the written minutes as required under I.C.
§§ 67-2344(1)(b) and 67-2345(1).
Although there was a violation, the Commissioners are not subject to a civil penalty
unless they were aware of the violation when they held the meeting. Because the Commissioners
denied any knowledge of a violation, judgment on the pleadings is not proper. A factual
determination of their state of mind remains.
The decision of the district court is reversed in part, affirmed in part, and remanded for
further proceedings.
Justices TROUT, EISMANN and BURDICK CONCUR.
JONES, J., concurring in part and dissenting in part.
I concur in the Court’s opinion, save the conclusion in Part III.A.1. that the litigation
exception in the Open Meeting Law (Idaho Code §§ 67-2340, et seq.) does not require the
presence of legal counsel. I dissent from that conclusion because the language employed in the
litigation exception does not admit to just one plausible interpretation and when the exception is
construed in the light of legislative history and public policy it is clear that it was intended to
narrowly apply to attorney-client communications regarding ongoing or anticipated litigation.
The language at issue in I.C. § 67-2345(1)(f) (2006) seems fairly straightforward on an
initial reading. It allows for an executive session of a governing body “[t]o consider and advise
its legal representatives in pending litigation or where there is a general public awareness of
probable litigation.” The provision contemplates give and take between the governing body and
its counsel regarding pending or threatened litigation. The language indicates the exception
applies to a unitary process where the governing body receives legal advice on the litigation from
its attorney and gives instructions on how to proceed. “Consider” and “advise” are not only
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bound together by an “and,” but also by consideration of how things work in an attorney-client
relationship.
The district court appears to have read the litigation exception in this manner,
determining as follows:
In reading the statute as a whole, including all of the authorizing circumstances
set forth in section 2345, it is clear that (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. That
interpretation does not require presence of counsel at all meetings, nor does it
require counsel to be at meetings whenever there are meetings at which conflicts
are discussed. But, it does require counsel’s presence when the governing body
wants to go into executive session to discuss matters which traditionally would be
privileged communications or would be considered work product. Contrary to
Defendants argument, this requirement does not burden governing bodies in small
communities or governing bodies that may not have regular access to counsel. It
simply means that when they wish to invoke (1)(f) and go into executive session,
they must do so only to discuss pending or future litigation with their legal
representative. That exception is limited to when counsel is present (and could be
present telephonically) but even then, the executive session is only to discuss
pending or probable litigation about which there is a general public awareness.
This interpretation is consistent with the purpose of the Idaho Open Meeting Law
and apparent from the plain reading of that provision.
Thus, the district court found the litigation exception language to be unambiguous, to be
designed to protect attorney-client communications, and to necessarily require the presence of
legal counsel in order to be invoked. I agree with that reading.
However, I would certainly concede that the language employed in the litigation
exception is somewhat awkward when subjected to word-by-word microscopic scrutiny. Where
I would read “consider and advice” as acts to be performed in tandem with the presence of legal
counsel, the Court reads them to be acts that can be performed separately – the consideration to
be allowable with or without the presence of legal counsel so that only the advising of legal
representatives requires their presence at an executive session. While I prefer the reading
advanced by the attorney general and adopted by the district court, I would concede that the
Court has put forth a plausible reading of the statute. Indeed, three different readings of the
statutory language were presented to the Court by the parties and amicus. Although the amicus
reading is somewhat questionable in my opinion, it appears that my reading and the reading of
the Court are both plausible and reasonable. Thus, I would find the statutory language to be
12
ambiguous and employ the rules of statutory construction to determine the legislative intent. “If
it is necessary for this Court to interpret a statute, the Court will attempt to ascertain legislative
intent, and in construing a statute, may examine the language used, the reasonableness of the
proposed interpretations, and the policy behind the statute.” Gillihan v. Gump, 140 Idaho 264,
266, 92 P.3d 514, 516 (2004). In determining the meaning of a statute the “overall scheme and
intent of the legislation must not be overlooked.” Idaho State Tax Comm’n v. Haener Bros., Inc.,
121 Idaho 741, 744, 828 P.2d 304, 307 (1992).
We start with the proposition of openness in government. The framers of the Idaho
Constitution wanted proceedings of the State Legislature to be conducted in public view. As one
delegate put it, “I want the electric light of publicity turned upon every act that they do.” II
Proceedings and Debates of the Constitutional Convention of Idaho 1889, 1217 (I.W. Hart ed.
1912) (State of Del. A.F. Parker). There is no reason to believe that the constitutional framers
would have expected less of county and city governments. Indeed, the Legislature has provided
for openness, both with regard to meetings of governmental bodies and records of those bodies.
Idaho Code § 9-338 presumes that all public records in Idaho are open for inspection by the
public. This Court presumes that all public records are open to disclosure and that all
exemptions are narrowly construed. Federated Publications, Inc. v. Boise City, 128 Idaho 459,
463, 915 P.2d 21, 25 (1996).
In Idaho Code § 67-2340, the Legislature “finds and declares that it is the policy of this
state that the formation of public policy is public business and shall not be conducted in secret.”
The Legislature implemented this policy mandate through Idaho Code § 67-2342(1), which
requires all meetings of a governing body of a public agency to be open, with certain specified
exceptions for executive sessions. Gardner v. Evans, 110 Idaho 925, 929, 719 P.2d 1185, 1189
(1986). The exceptions for executive sessions should, like exceptions for the public records law,
be narrowly construed. See Norman J. Singer, Sutherland Statutes and Statutory Construction, §
47:11 (6th Ed. 2002) (“where a general provision in a statute has certain limited exceptions, all
doubts should be resolved in favor of the general provision rather than the exceptions”).
With regard specifically to counties, the Legislature has provided in Title 31, the code
title pertaining to counties and county law, that all meetings of a board of county commissioners
“must be public.” Idaho Code § 31-710(4). The Legislature provides for no exceptions in the
county law. In 1985 the Court of Appeals found a clear and definite conflict between this
13
provision and the executive session provisions of I.C. § 67-2345, holding that the latter govern
because it was the later-enacted. Nelson v. Boundary County, 109 Idaho 205, 208, 706 P.2d 94,
97 (Ct. App. 1985). This Court has not had occasion to rule on this particular issue and it is not
necessary to do so at this time in light of the legislative history, which indicates that the litigation
exception was not intended to apply in the circumstances of this case. What is important to draw
from the county law is the strong public policy in favor of open public meetings of county
commissions.
The Open Meeting Law was enacted in 1974 “to provide for more open meetings of
governing bodies in Idaho” and to combat the attitude of many governing bodies “that the
public’s business is none of the public’s business.” H.B. 602, Statement of Purpose, 42nd Leg.
2nd Sess. (Idaho 1974). As enacted in 1974, the legislation did not contain a litigation exception.
1974 Idaho Sess. Laws, Ch. 187, p. 1492. In 1978, the Legislature enacted H.B. 582, which
established the litigation exception in subsection (1)(f) to “allow governing bodies to go into
executive session to consider and advise its legal representatives on pending litigation.” H.B.
582, Statement of Purpose, 44th Leg., 2nd Sess. (Idaho 1978); 1978 Idaho Sess. Laws, Ch. 302, p.
759. The legislative history is instructive. Representative Ingram was the sponsor of the
legislation, which was proposed by the Association of Idaho Cities. According to the record
developed in the House State Affairs Committee when the legislation was first considered:
Rep. Ingram spoke to the committee on this proposed legislation and said this
amendment would allow governing bodies like city councils and county
commissioners, etc., to go into executive session to consider and advise its legal
representatives on pending litigation. He said the Association of Idaho Cities had
asked that he bring this to committee since he was the author of the original
meeting law. Mr. Marty Peterson from the Association of Idaho Cities spoke to
the committee and said this amendment will allow city councils to meet with legal
counsel in matters concerning litigation in an attorney-client relationship.
***
Rep. Winchester felt we have a good opening meeting law already and the
wordage in this bill would allow the public to be shut out of the meetings. He felt
this was contrary to the open meeting law. Rep. Ingram said he had been a little
concerned about the wordage himself, however, when a suit had been filed he felt
it would be legitimate for a governing body to meet with their attorney. He asked
Mr. Peterson if his association would object to a change. Mr. Peterson said they
would prefer the bill go through in its present form. He said it was their
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understanding that unless a suit had actually been filed and was proceeding
through the court system, the open meeting law would not allow the retention of
an attorney-client relationship.
Hearing on RS 3438 [H.B. 582] before the House State Affairs Committee, 44th Leg., 2nd Sess.,
pp. 2-3 (Idaho Feb. 21, 1978). Thus, the entity requesting the legislation and the legislative
sponsor intended to allow governing bodies “to meet with legal counsel in matters concerning
litigation in an attorney-client relationship.” With no exception for confidential attorney-client
communications in the 1974 enactment, the governing body and its attorney would have had to
discuss litigation strategy in open session, thereby defeating the attorney-client privilege. The
1978 amendment was designed specifically to keep the attorney-client exchange confidential. It
should not be more broadly construed.
Although this case has been somewhat mooted by the Legislature’s 2007 amendment of
I.C. § 67-2345(1)(f), it is worthwhile to make mention of the long-standing policy in Idaho of
maintaining openness in government. That requires narrow construction of any exception to the
openness rule, including openness at meetings of governing bodies. Thus, while I support the
Court’s opinion in all other respects, I dissent with regard to the conclusion in part III.A.1. and
would affirm the district court’s ruling on that issue.
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