Idaho Falls Redevelopment Agency v. Countryman

BISTLINE, Justice,

concurs with the opinion of JOHNSON, Justice, and concurs only in the result of the majority.

As Justice Johnson has written, “this case looks remarkably like an attempt to obtain an advisory opinion.” In fact, this case is, like two other cases in recent memory, a very good attempt to obtain an advisory opinion. Art. 5 § 1 of the Idaho Constitution states that “[fjeigned issues are prohibited____” And, while Art. 5 § 10 does allow for “recommendatory” decisions to issue from the Court on certain claims against the state, no other provision is made or power conferred to the Court to issue an advisory opinion. No wonder; to write an opinion on a feigned issue is only *47proper for “those who, with a feigned modesty, condemn as useless what they write.”4

To all the better recognize the use of feigned issues to obtain an advisory opinion, one good example is Canyon View Irrigation v. Twin Falls Canal, 101 Idaho 604, 619 P.2d 122 (1980), in which the majority explained the issues before the Court:

The case was tried upon stipulated facts. The parties also presented a stipulated statement of issues to the court below. Besides the two main issues regarding eminent domain and the interpretation of the 1903 contract, the parties asked the district court to settle some legal questions in the event that it found CV [Canyon View Irrigation Company] was entitled to condemn an interest in the canal system. First, the parties wished to know what effect the condemnation suit [if one was brought] would have on the various owners of land adjacent to TFCC’s [Twin Falls Canal Company] canal system. Second, the parties requested that the court determine the proper measure of damages in the event CV’s plan was implemented through condemnation proceedings.

Canyon View Irrigation, 101 Idaho at 607, 619 P.2d at 125 (emphasis added). The Court then went on to resolve these “issues.”

My response to the Court’s actions has in no way mellowed with time:

That the appeal should be dismissed is self-evident. The district court should not have entertained the action in the first place. That neither of the parties raises the nonjusticiability of the controversy does not mean that the trial court was obligated to render what can only be considered a strictly advisory opinion. Every question put to the Court could and would necessarily be resolved in a condemnation action, had one been brought____ That the questions are important, and the answering thereof might well serve to aid in bringing the parties together so that they can resolve their differences without going to court in a truly adversary proceeding, is insufficient to confer jurisdiction upon the courts.

Canyon View Irrigation, 101 Idaho at 615, 619 P.2d at 133 (Bistline, J. dissenting, joined by Dunlap, J., pro tern) (citations omitted).

In Utah Power & Light Co. v. Campbell, 108 Idaho 950, 703 P.2d 714 (1985), this Court considered a mandamus action brought by the utility against the mayor of Idaho Falls. I wrote that:

The city council is the proper body to determine to enter into a contract, but the mayor is the official designated to sign the contract. As Mr. Storer [attorney for the city, representing the mayor] stated, the contract was negotiated by the city council. The city council is the party, and the only party, who could properly compel the mayor to perform the ministerial act of affixing his official signature as mayor of the City of Idaho Falls. The right in the city council to come into court and mandamus the may- or is peculiar to the city council. It is not an assignable right; nor has assignment of that right been attempted.
One would think that a first year law student would have interposed the plea at bar that [the utility] simply had no right to hail the mayor into court. Because Mr. Storer is a capable attorney, it readily may be presumed that he was instructed to not raise that plea in bar. From that presumption, it is no great leap to wonder whether the Court has been presented with a feigned, non-justiciable controversy.

Utah Power & Light Co., 108 Idaho at 958, 703 P.2d at 722 (Bistline, J. dissenting) (emphasis in original). Similarly, the mandamus action brought by the Idaho Falls Redevelopment Agency has all of the characteristics of presenting a feigned issue in order to obtain judicial approval of a very *48questionable arrangement of a municipality agreeing to construct a hydroelectric facility for and on behalf of an out-of-state private enterprise desirous of acquiring a new source of electrical power. Moreover, the requisite bond issuance could take place without resort to the mandamus action brought in this Court. A previous decision of this Court, Idaho Falls Consolidated Hospitals v. Bingham County Board of Commissioners, 102 Idaho 838, 642 P.2d 553 (1982) had held: “Art. VIII, § 4 of the Idaho Constitution specifically forbids counties and cities from loaning or giving credit for any purpose whatever.” This Court favored Utah Power by holding that the arrangement was not a lending of credit.

. The succinct brilliance of that phrase is the product of John Locke, English philosopher (1632-1704).