Sanchez v. State

Justice EISMANN,

concurring, with the following exception.

The majority states that “it appears I.C. § 12-117 may provide an alternative basis for a fee award.” That statement would be true only if a majority of this Court endorsed the clear abuse of power by the majority in Stewart v. Department of Health and Welfare, 115 Idaho 820, 771 P.2d 41 (1989).

Idaho Code § 12-117(1) provides:

Unless otherwise provided by statute, in any administrative or civil judicial proceeding involving as adverse parties a state agency, a city, a county or other taxing district and a person, the court shall award the prevailing party reasonable attorney’s fees, witness fees and reasonable expenses, if the court finds that the party against whom the judgment is rendered acted without a reasonable basis in fact or law.

That statute provides that, under certain circumstances, a court “in any administrative or civil judicial proceeding” can award attorney fees to the prevailing party in the court action. There are two ways in which cases involving as adverse parties a state agency, city, county, or other taxing district and a person can be brought before a court. One is by appealing an administrative proceeding to the court. The other is by filing a civil action in the court. The appeal from an administrative proceeding is not a civil action. Lowery v. Board of County Comm’rs, 117 Idaho 1079, 793 P.2d 1251 (1990). Thus, Idaho Code § 12-117 provides that the court can award attorney fees regardless of whether the case is an “administrative ... judicial proceeding” (an appeal from an administrative proceeding) or a “civil judicial proceeding” (a civil action filed in the court).

In Stewart v. Department of Health and Welfare, the majority first misconstrued Idaho Code § 12-117 as meaning that once an administrative appeal came to the court, the court could award attorney fees for proceedings before the administrative agency. It apparently failed to realize that an administrative appeal is not a “civil judicial proceeding.” It therefore thought that the word “administrative” referred to the proceedings before the administrative agency. It then decided that since its misconstruction of the statute created an “anomaly,” it would simply rewrite the statute to provide that administrative agencies could award attorney fees under Idaho Code § 12-117.

It is urged that the precise language of I.C. § 12-117, i.e., in any administrative or civil judicial proceeding involving as adverse parties a state agency and a person, the court shall award the person reasonable attorney fees, witness fees and reasonable expenses, if “the court” finds “in favor of the person and also finds that the state agency acted without a reasonable basis in fact or law,” can only be interpreted to authorize “the court” to award such attorney fees. We cannot agree.
Such a result would be an anomaly. A litigant before an administrative tribunal, who is successful against a state agency which had acted without a reasonable basis in fact or law, would be denied attorney fees, while a litigant who is unsuccessful before that administrative tribunal might later be awarded attorney fees for the proceedings before the administrative tribunal upon a reversal by a district court.

115 Idaho at 823-24, 771 P.2d at 43-44.

Idaho Code § 12-117 authorizes the court to award reasonable attorney’s fees, witness fees and reasonable expenses. There is absolutely no rational way that the word “court” can be construed to include “administrative tribunal.” The majority decision in Stewart v. Department of Health and Wel*246fare is simply a rewriting of the statute by the Court.

Although this Court has the power to misconstrue statutes, it does not have the power to rewrite them. Doing so is simply a blatant abuse of power and a violation of the separation of powers. When confronted with such examples of judicial misconduct, this Court must have the integrity to overrule them.