Kleiber v. City of Idaho Falls

majority Obviously the author KLEIBER, Plaintiff-Appellant, the exhaustive written

opinion had read Norbert Respondent, Cross equally Judge Magnuson, and decision of defend- obvious, aware that the was well standing challenged Bopp’s Mr. on had ants Idaho, FALLS, State of OF IDAHO CITY yet, And on Canady case. the basis municipal corporation, Defendant- majority rereadings of the more ten or Appellant. Respondent, Cross find that the word opinion, I unable to am men- “standing” of the art —is word 15758. No. —a one time.2 tioned even Idaho. Supreme Court of bright sunny day It be a would 19, 1986. Feb. jurisprudence in this state the science were to only three members of the Court April Rehearing Denied 1986. way in acknowledge unjust and unfair deci- opinion portrays the which the Court’s and, Judge Magnuson, of their own

sion grant a rehear-

volition and motion vote full, again exam-

ing in so that this case be any prece- Canady

ined see if does have (1)

dential effect where it’s statement as a

standing gratuity; was a even and; (3) outdated,

gratuity it is now judge by pen highly his own

district Bopp opportunity

inclined to allow Mr. standing

to amend in order to show the necessary

which he believed to reach the that, my There is no in mind

merits. doubt Judge Magnuson

had observed from the headnoting Canady, Court’s standing discussion was not hold- outright

ing, he not have felt as would expressed himself

bounden it as he well regard. rehear-

in that so vote for a full

ing. February my searching majority opinion, was dis- the last two sentences of Part I of escaped appropriate opinion covered that its footnote 1 had earlier substitution. and máke an me; necessary accordingly, it becomes to delete

he would be in violation Ordinance No. 9-9-1 if attempted operate he to his business on public sidewalk.1 Kleiber denies that any warning. he received A license was and began issued Kleiber operating his public business on sidewalks. Shortly thereafter police warned Kleib- er he was violating 9-9-1, Ordinance No. and began issuing thereafter citations to him obstructing for the sidewalk in viola- tion of the ordinance. Kleiber nevertheless operate continued to the stand and receive Thereafter, citations. regular at a meeting Council, the Idaho Falls over the protests Kleiber, the council voted revoke his license. council also in- formed Kleiber agree he would Marc Weinpel J. Combo, James F. conduct the private business on property it for plaintiff-appellant, cross-re- would reinstate his Subsequently license. spondent. acquired Kleiber a location for his business Allyn L. Sweeney and Gregory private R. on property Gio- and his license was metti, Boise, for defendant-respondent, reinstated. cross-appellant. Thereafter, Kleiber filed this action against city alleging both common law SHEPARD, Justice. tort and 42 U.S.C. Section 1983 causes This is an appeal summary judg- from a actions, city to which the filed a motion for ment dismissing complaint appellant summary judgment. The district court sought Kleiber who damages under the granted summary judgment as to the tort theories of common law tort and a claims, violation summary but denied judgment as to of his constitutional rights under 42 U.S.C. the Section 1983 claim holding that Section 1983 which allegedly resulted from ordinance was unconstitutionally vague. city’s refusal to oper- allow Kleiber to Upon reconsider, a motion to the court dog ate mobile hot stand on the sidewalks ruling adhered to its the ordinance of downtown Idaho Falls. We was unconstitutionally vague, but held that affirm. was also summary judg- entitled to In May 1982 Kleiber ment as to the Section 1983 cause of action of Idaho Falls for a business license to since neither a fundamental first amend- operate dog a'mobile hot stand down- ment nor a property impli- town Idaho Falls. Kleiber indicated that cated. he was unsure where his stand would be located but that he intended to Kleiber filed a asking motion for recon- throughout various locations city. It is sideration of the summary judg- court’s asserted that Kleiber was told relating action, ment to the 1983 causes of 1. 9-9-1: UNLAWFUL (C)Exceptions. TO OBSTRUCT following SIDE structures WALKS: fixtures be installed and maintained (A) streets, Obstructing alleys and public sidewalks. compliance and on a sidewalk in with any person It shall be unlawful following for to obstruct standards: street, any alley utility poles sidewalk within the equipment, hy- All fire drants, benches, signals, signs traffic re- (B) ceptacles Structures on sidewalks. It shall be un- plants, trees and decorative store, any person structures, lawful for install or main- receptacles all other and fixtures material, vehicle, tain structure or fixture approval installed or State, with the upon any public within the ex- sidewalk or of the are deemed to conform cept standards, chapter as hereinafter in this set forth. and are lawful. circumstances, to which the filed a to strike on in limited motion the enactment of zoning regulations governmental basis the motion to reconsider was is a func- usually days required by subject estop- not filed within ten tion which is not 59(e). pel.” That In Harrell the facts were much I.R.C.P. motion to strike was egregious more than in the denied and the court a decision instant case. issued plaintiff property There the had deeded the merits. we decide the case on its Since merits, frontage city a road to the in reliance on its we do not address the issue of the proposal if he did so he would be timeliness of Kleiber’s to reconsid- motion granted change building per- a zone and a er. Harrell, clearly mit for a restaurant. initially We note that Kleiber’s sole issue plaintiff changed position had his to his appeal granting on summary judg is of upon substantial detriment in reliance ment on the Section 1983 claim. No con assurances, city’s yet right building no to a upon appeal tention is made as to permit was held to exist when a valid zon- granting summary judgment of in favor of ing regulation prohibited such Al- use. city on Kleiber’s common law tort though in may the instant case Kleiber claim, and Kleiber has cited neither author license, have been issued a business ity argument upon nor made question. upon any proper- license did not confer him Company See Oil Lacy, V-1 v. 97 Idaho ty right public to use the sidewalks for the 468, (1976); 546 P.2d 1176 Oregon Short Therefore, conduct of his business. Chubbuck, line City Railroad Co. v. of city judgment was entitled to as a matter 815, (1970). Idaho 474 P.2d 244 of law. As stated in Corpora Stewart v. Hood In Idaho the streets from side to tion, 198, (1973): 95 Idaho 506 P.2d 95 belong public side and end to end ruling “In an appeal summary from a by and are held municipality trust judgment only we will determine: public. for the use of the Keyser City v. of genuine 1. Whether there is a issue as Boise, 440, (1917). 30 Idaho 165 P. 1121 A fact; material city has exclusive control virtue of its moving 2. Whether the party is entitled streets, police power highways over its judgment (Cita- as a matter of law.” municipal sidewalks within the boundaries. omitted.) tions Ketchum, Tyrolean City Associates v. of We hold that here the trial court correct- 703, (1979); 100 Idaho City 604 P.2d 717 of ly genuine ruled that no issue of material 530, Nampa Swayne, v. 97 Idaho 547 P.2d fact only remained to be resolved. The (1976); State, Snyder v. 92 Idaho dispute of fact is whether Kleiber was noti- (1968); 438 P.2d 920 Yellow Taxi Cab Ser fied of Ordinance No. 9-9-1 and that he Falls, City vice v. Twin 68 Idaho could not his business on a side- (1948). City 190 P.2d 681 In Boise v. Sin However, walk. dispute of fact is not sel, supra, the Court held that the holder city material since the estopped is not from permit of a to install an obstruction on the ordinance, enforcing its albeit license public acquires property street no vested have been issued mistake or in right because the has no or au contravention of the ordinance. thority grant private right perma public nent use of the streets. application estoppel Likewise, in Yellow Cab Taxi v. against Service municipality in the exercise of its Falls, City supra, Twin held: Court police power prohibited. City Boise Sinsel, 72 Idaho P.2d 173 “A police pow- exercise of its er, Yellow Taxi particular Cab Service v. Twin can revoke a license thing 68 Idaho permitted public is or becomes Lewiston, nuisance, We stated in Harrell necessary or such revocation is (1973), public the interests of the welfare “although a municipality may estopped public arbitrary, be or safety, and is not

unreasonable, discriminatory, oppressive taxi service in Twin Falls maintain and to capricious, existing the conditions certain taxi stand on Main He Street. had justify at the time such action.” 68 Ida- operating approx- been that taxi service (Citations omitted.) ho at 151. imately years. longer When the no permitted him to use that taxi stand he showing by Here there is no Kleiber that enjoin filed suit to interfering from unreasonable, the action of the arbi- use, quiet with his and to title to his use of trary discriminatory. The evidence re- the stand. That action was dismissed for veals that no licenses are issued for the action, state failure to a cause of and on operation pushcarts on the sidewalks of appeal the dismissal was affirmed with this city of Falls. While there is stating that no one has a vested evidence which indicates that at certain public private gain. to use a street for year times of the allows all of the commonly merchants to conduct what are power prohibit of cities to the use of sales,” referred as “sidewalk such is not vending sidewalks commercial abrogation authority any indicative of upheld against activities has been constitu part prohibit the use challenge many jurisdictions. tional See conducting sidewalks for the of businesses San Francisco Street Artists Guild v. Scott, 667, at all other times. The evidence is also Cal.App.3d Cal.Rptr. 37 112 502 during clear that such time of “sidewalk (1974); 100, Lindsay, Duchein 42 A.D.2d permitted operate sales” Kleiber was his (Sup.Ct.1973); People N.Y.2d 345 53 v. Ga sidewalks, public lena, 770, stand on the as were oth- Cal.App.2d Supp 24 724 er merchants. herein is

The ultimate issue also asserts that the trial court Kleiber, by purchasing a license business erred in No. 9-9-1 to be Ordinance a from the of Idaho obtained vague, Village indefinite and hence void. right or to conduct a Flipside, vested fundamental Estates v. The of Hoffman Hoff sidewalks, public Estates, Inc., 489, on the business man 455 U.S. S.Ct. con- 1186, whether the revocation of that license 71 L.Ed.2d 362 stated: rights. travened Kleiber’s constitutional challenge “In a facial to the overbreadth law, vagueness of a court’s first emphasize only a We that Kleiber asserts is to determine whether the enact- task right private constitutional to conduct a substantial amount of ment reaches a public on the side commercial business If constitutionally protected conduct. it there are not walks of the and that not, argument does then the overbreadth implicated rights of free the constitutional must fail. The court should then exam- speech, assembly, dom of freedom of and, challenge vagueness ine the facial religion. freedom of N.A.A.C.P. v. See assuming implicates no the enactment Alabama, Patterson, 357 State ex rel. conduct, constitutionally protected 1163, U.S. 78 S.Ct. 2 L.Ed.2d 1488 challenge only if the uphold the should (1958); Murdock v. Commonwealth of vague in all impermissibly enactment is 105, 63 870, 87 Pennsylvania, 319 U.S. S.Ct. plaintiff A who en- applications. of its (1943); L.Ed.2d 1488 Cantwell v. State of clearly gages in some conduct Connecticut, 310 U.S. vague- complain of the proscribed cannot L.Ed. 1213 Society International conduct ness of the law Krishna Consciousness v. Engelhardt, 455 U.S. at of others.” F.Supp. (W.D.Mo.1977). at 1191. S.Ct. Cab, here, supra, As in Yellow further held: The court license, by granting plaintiff a business did Con- degree of “The upon him any not confer vested as the rela- well stitution tolerates —as place use the sidewalk as a In business. and fair of fair notice importance plaintiff paid Yellow had tive Cab na- depend part on the for a 12-month license to $240.00 enforcement— ture of the Thus, enactment. economic BISTLINE, Justice, dissenting. regulation is subject to a less strict I.

vagueness test subject because its mat- ter narrow, is often more majority’s because void-for-vagueness analy- businesses, First, which face sis errs in respects. ignores economic two it de- plan applies only mands to state constitutional law and carefully, behavior can be Second, federal constitutional ap- law. expected to consult legislation relevant plies wrong analysis to the issues advance of action.” 455 U.S. at raised this case. that manner the 102 S.Ct. at 1193-94. wrong result is obtained. The standards set forth in Hoffman The heart of Mr. appeal Kleiber’s is that significant are to the instant case in that City’s ordinance 9-9-1 is unconstitu- implicate any Ordinance No. 9-9-1 does not tionally vague. Kleiber also contends that right, constitutional infringe nor does it arbitrary ordinance is capricious, upon a fundamental under state law. and invites selective enforcement.1 The or- case, As in Hoffman, Kleiber in this is also question dinance in is: opportunity businessman who had an 9-9-1: UNLAWFUL TO OBSTRUCT clarify meaning regulation. Or SIDEWALKS: clearly prohibits dinance No. 9-9-1 the ob (A) streets, Obstructing alleys and side- public struction of sidewalks within the walks. It shall any per- be unlawful for city, or the any maintenance of vehicle street, son to obstruct alley public upon city. sidewalk within the sidewalk within the Equally clearly, Kleiber’s maintenance of a (B) Structures on sidewalks. It shall be pushcart on a city sidewalk within the con store, any person unlawful for to install sists of an obstruction of the sidewalk and material, vehicle, or maintain struc- the maintenance of a type, vehicle of a and upon any public ture or fixture sidewalk prohibited thus is by the city, except ordinance. The within the hereinafter chapter fact that this set forth. might the ordinance also be con prohibit (C) strued to other Exceptions. following activities which are struc- engaged Kleiber, may not tures or fixtures be installed and by does not allow maintained and on a sidewalk him challenge to sustain a to the ordinance. compliance following with the standards: Ordinance No. 9-9-1 does not address the utility poles All equipment, and fire conduct of a lawful business in a lawful hydrants, signs signals, traffic and manner, only regulates but activities on benches, receptacles for decorative trees public streets or Although sidewalks. structures, plants, and all other re- may Kleiber have a right fundamental of a ceptacles and fixtures installed or business, sort to such does State, approval of the with the operation not extend to the of his business accept- are deemed to conform streets sidewalks. The orders standards, able and are lawful. granting summary judgment agreed court with Mr. Kleib- The district dismissing complaint of Kleiber are provided parties with its reason- er and A affirmed. of the district court ing: that Ordinance vague, No. 9-9-1 is vagueness requires void for doctrine ambiguous and void is reversed. prohib- a statute or ordinance define respondent. Costs to ited conduct with sufficient definitions ordinary people can understand DONALDSON, BAKES, J., C.J. and con- they activity proscribed what so that cur. requirements conform to the I, Interestingly, ions, Huntley working 1. potential have both observed the for selec- entirely independently separate opin- on our tive enforcement ordinance. Estates v. S.Ct. 1186 ^[461] L.Ed.2d enforcement. law, and in a manner which encourage arbitrary and discriminatory Voyles City Nampa, provide Smith ^[566] lines to notice, cently that the more important aspect actual notice to citizens and arbitrary Although the doctrine focuses both on enforcement, we legislature U.S. 903] doctrine—the Where the [v. but Court in Flipside, govern [352], Goguen], supra, 415 U.S. (1983); [71 establish minimum Kolender v. doctrine “is not actual minimal other Kolender, L.Ed.2d 103 S.Ct. 1855 have law enforcement.” Village legislature 455 U.S. requirement principal As ^[1242] recognized guidelines, noted 362] of Hoffman 103 S.Ct. at at 1247- does not Lawson, element fails to guide [75 re exceptions: must be established solicitation vided could, rector. The Court written handbills at the municipal airport without hibiting soliciting and distribution of brought a 1983 action seeking to enjoin sciousness, F.Supp. case, a member of carry tiff’s desired airport opened in issue contains no standards whatso- ever discretion in enforcement of a On its First for exceptions, if it out that permission premises. this guide at the face, wished, Amendment, Inc. forum, permitting (W.D.Mo.1977). conduct is conduct the city ordinance here airport, Because the held that absolutely prohibit and because Airport Englehardt, religious some standards cannot but granting solicitations on ordinance protected having pro- airport Director’s constitu- In that society plain- those pro- has di- tionally criminal may permit be left to the statute “a unbridled discre- stan- sweep dardless police allows tion of the licensor.... The fact that [that] men, prosecutors, juries pursue routinely director permits denies personal their predilections.” Id. at organizations all not render does 575, 94 S.Ct. at 1248. ordinance where its uncon- An examination of the ordinance in- stitutionality shows plainly on its face. for exceptions for dards are hicles or shows that the section (9-9-l(C)) merely lists a for. Supposedly walks, ed and are deemed to cles and standards, and are lawful.” certain volved here reveals that while it is de- clared to be unlawful to maintain ve- approval number certain states standards, fixtures installed or structures given exceptions conform to by which city or state items which are the ordinance “structures, State, but a structures upon public are closer No provided provides meeting recepta- except- stan- view side- with 88, protection Amendment damental law. See Messerli v. Mon in a arch granting of case above did deal with nance 425 F.Supp. at 180. rule, tion” them Similarly, in the 397 lawful business Memory Gardens, rather, but provides P.2d the as a provides rights, 24 those to the “unbridled discre right existing ^[34] council. for instant e.g., enjoys exceptions, no standards exceptions to the important Inc., case And while the constitutional under fun 88 Idaho the ordi leaving engage First for approval The defendant proposi- be appears obtained. asserts This to be the very type tion a license issued “arbitrary mistake or discriminatory contrary enforcement” its own can which ordinances be U.S. under condemned revoked. do not issue with take this the void-for-vagueness doctrine. (which proposition appropri- has

A closely analogous authority sustain), ate case is that of but I think it is Society International in process Krishna Con- clear that the revocation

507 to meet as those process of law. are not as difficult is entitled to due licensee added). R., challenges. A.L. (emphasis governing facial See 69 pp. 67-68 3(b). 12, 11, n. at 29 Id. at 696 R.Fed. § majority opinion ignores the district 862, P.2d at n. 12. though never opinion as it had been court’s written, inap- into an and instead launches readily for this distinction is reason Flipside case. plicable quotation from the Newman, citing apparent. As noted in 9-9-1 It is said that because Ordinance Flipside: infringe upon any does not constitutional finding void-for- The test for a statute P. right, it it is therefore constitutional. face, thereby in vagueness on its to be doubted that much even is It process, violation of due is whether impressed by such a circu- will be impermissibly vague law in all of its is itous, argument. shallow applications. Flipside, supra, 455 U.S. inevitably analysis A correct of this issue 498, 102 is, wheth S.Ct. at 1193. That the district leads to the conclusion that invalid toto. er the Act is [v. Steffel holding the ordinance court was correct 474, [452,] Thompson], 415 94 S.Ct. U.S. unconstitutionally vague applied is (1974) [1209,]1223 Id. at 696 P.2d [ ]. Kleiber was the conduct with which (emphasis original). at 862 charged. The district court also seems to Shepard recognized has this dis- Justice have been of the view that the ordinance Carringer, tinction before. State v. challenge not have would withstood (1974), P.2d he vagueness. facial majority of the said for a Court: Controlling state constitutional law from to most if not all Common Newman, State principle the words cases applicable. There this Court questioned statute should not be challenge addressed a to the constitutionali- be evaluated in the abstract but should Act,2 ty Drug Paraphernalia of Idaho’s partic considered with reference being with the issue whether the Act was Unit ular conduct of defendants. unconstitutionally vague on its We face. Dairy ed v. National Products States reasoning Flipside Corp., 372 U.S. that the Act did not violate stan- federal Goguen, L.Ed.2d 561 Smith void-for-vagueness dards for chal- facial (White, J., concurring judg in the supra lenges. Id. at 696 P.2d at 862-65. ment). pains point Great were taken to out that required to consider Weare therefore Flipside involved a federal void-for- facial giving rise to this action. facts vagueness challenge, and that facial chal- added.) (Emphasis lenges as-applied vagueness differ from later, years Shepard repeated Three challenges: proposition Lopez, this same State v. We do not wish to be understood as 570 P.2d 266-67 suggesting ap- that this test is also the (1977).3 propriate to be used in cases where a test need to that statute, Kleiber had no establish applied particular indi- as to a vague in “impermissibly Ordinance 9-9-1 is light vidual in of the conduct with which Newman, applications.” being charged, being supra, all of its he or she is is chal- being vague. contrary, 108 Idaho at 696 P.2d at 862. Never- lenged as On the theless, governing by inappropriately turning Flip- standards constitutional chal- lenges side, deciding applied majority to acts as to an individual avoids the issue 37-2701(bb), Dairy Corp., supra: “The suf- §§ The Act is found at I.C. National Products -2734A, -2734B, -2774(a)(7). ficiency determined in of a statute ... must be light is of the conduct with which [a defendant] pointed my Lopez opinion, 3. As out Justice charged," not what he did. Shepard, Lopez opinion, in his first more accu- rately States restated of United v. presented decided below and in turn now standards under which an individual’s in- us, guilt which is whether the ordinance is un- nocence or can be determined. constitutionally vague Grayned City as it was Rockford, 408 U.S. of 104, 108-09, 2294, 2298-99, Kleiber. I would hold that it is. The ordi- wording patently nance’s unclear in sev- L.Ed.2d 222 Id. respects provide eral and fails to “reason- Today’s majority protect does little to those opportunity able to know what is and is not values. prohibited conduct....” Id. majority up The sets a straw-man de- The confusion Kleiber confronted is fur- fense, and easy skirts around it for an ther demonstrated where the same “The touchdown: ultimate issue herein is passed

council which Ordinance 9-9-1 Kleiber, by purchasing a business also issued a business license to Kleiber— City license from the of Idaho ob- paid operate which he a $20.00fee tained a vested or fundamental —to City a mobile within restaurant conduct a business on the side- walks_” Idaho Falls. P. The “ulti- 1277. Not so. mate” issue is whether Ordinance 9-9-1 is position city’s The amounts to this: Un- unconstitutionally vague applied to ordinance, paragraph der of its “Excep- C Obviously Kleiber. it is. tions,” anything might which otherwise be sidewalk, a structure or an obstruction on a II. B, paragraphs lawful, A and is nonetheless majority by is not troubled the fact provided it is so installed or with day that the one licensed Kleiber. approval That which is day legally On two it claims Kleiber cannot approval lawful cannot be unlawful. The Putting under that license. aside being results deemed to conform to issue, mishandling vagueness acceptable Shortened, standards. disagree majority holding with the give approval, prob- concedes: if we our no estopped cannot be held from enforc- lem, But, hand, lawful it is. on the other ing in this and under its ordinance situation change should we have a of mind and with- the circumstances here attendant. approval, your pushcart draw our then longer no deemed to conform to majority upon relies Harrel v. standards, and, fortiori, you your Lewiston, 95 Idaho pushcart go jail your must violation 470, (1973) anti-estoppel for its resolu- of our law. split tion. In 3-2. I Harrel Court thought at the time of Harrel

Newman set out well the reasons under- persuasive than the dissent was more ma- pinning doctrine which are jority opinion, and turn to it now: applicable here: disagree I ... with the novel assertion essence, protected: In three values are principle estoppel the court that the (1) protecting people that of innocent applied against munici- should not be being prosecuted by giving from them pality within the State of Idaho. Since opportunity what is reasonable to know at least 1909 the Ida- conduct; (2) prohibited and what is not to a ho has been committed avoiding arbitrary and dis- different by majori- rule than that laid down criminatory enforcement of the law year Mr. Ail- ty herein. providing explicit standards for those shie, rehearing speaking for the court on law; charged enforcing with Wilkinson, in Boise avoiding delegation that of basic 102 P. 148 stated: policy per- matters to law enforcement rule, sonnel, judges, juries recognize general and for resolution “We that as a basis, estoppel apply not on an ad hoc with the all-too-real the doctrine of does municipal corporations, and we are possibility arbitrary of and discriminato- to clearly defining the fact that the ry application, by the not unmindful of

509 power efficiency their and adminis- absolutely many of states have courts for ” justice. conclu- tering even-handed In corpora- apply it to refused however, sion, only I would that the Idaho prepared, note tions. Weare not authority majority opinion cited in an unalterable and to announce state, estoppel non-application unexceptionable rule in this for of municipality a are cases against inevitably in would result which of Sinsel, City v. 72 Boise wrong and perpetrating injustice in 241 (1952), and Yellow Taxi P.2d Cab exceptional like cases this. Courts of v. Twin 68 Idaho Service equity are for established the adminis- of (1948). regret I justice peculiar tration of in those out cases point that neither said justice cases where substantial cannot of majority provides authority express be administered under Cab only and statement. Yellow Sinsel law, adopt rigid rules of and to rule person acquire that no could title to held recognizes exceptions no would be in city streets since such were held trust to rob such courts of much of their In Sinsel and in Yellow public. for the efficacy administering power and Cab parties sought to have a warehouse people in justice. even-handed authorized, respectively and a cab stand sovereign capaci- their collective and although both located in a were ty ought to observe the rules same Sinsel pointed In the court out street. and standard and honesty of fair specifically the distinction between the dealing expected private aof estoppel and “the exer- usual situation govern- citizen. In their collective police power cise of its over a capacity, they mental no should open public.” street and in use more be lull allowed to the citizen Id. (Shep- P.2d at 476-78 repose and in what would confidence ard, J., Bakes, J., dissenting, concurring otherwise be a erroneous and false added). therein) (emphasis position private than should the citi- ” business, early I was learn in As this zen. beats As I learned at a much three two. language That same has been reiterated If age, plus equals two one three. earlier Highway as 1965 Dalton recently decided, Harrel wrongly jus- and two Sowder, District County Kootenai of in Harrel sat and still sit tices—who who (1965). P.2d 813 emphatically today declared —have desirable, believe, It is now I to turn to was, then, strong here is a third vote to facts of the instant case and state it, overrule and reincarnate the Court’s baldly them to determine language of Ailshie presents case at bar an exceptional case Shep- Wilkinson in the case. and Bakes perpe- which would otherwise result JJ., ard, remain to be heard from. we trating wrong Also injustice. HUNTLEY, Justice, dissenting. must determine whether the has observed “the same rules and standard ma respectfully I dissent from the must honesty dealing that is ex- of fair powers to jority opinion. cityA has broad pected private my citizen." of promote adopt ordinances which judgment not has so acted in health, safety welfare. The Idaho present case. concerning ob ordinance sidewalk Falls application pow is a valid of that

struction suggest I in this case long as the ordinance constitution er as wrongfully Lewiston acted However, has im ally applied. Idaho Falls the detriment one its citizens. against appellant discriminated properly suggest just that this is the case ordinance, ap denied applying further as Mr. Justice Ailshie had in mind protection in vio equal of the laws pellant argued adopt rigid when he that to 1983. Milnot Co. lation of U.S.C. § Health, no recognizes exceptions rule that Board Arkansas State “would be to rob such much courts F.Supp. I believe is a there material issue fact improperly

as to whether Idaho Falls dis- against appellant.

criminated It ac-

knowledged city permits other

types vending on its sidewalks such as

newspaper vending telephone machines and

booths, nothing in the record establish- appellant’s dog

es that hot stand is an than types

more of obstruction the other vending regularly permitted by

of sidewalk fact, the record shows that the

city began issuing appellant citations to police

because chief of com- received

plaints from local who restaurant owners appreciate competition.

did not There complaint

was no that traffic was obstruct-

ed. These facts are sufficient to raise a appel-

material issue of as to fact rights

lant’s civil were violated under Therefore, judg-

U.S.C. 1983. summary § appropriate.

ment was not Anderson v.

Ethington, P.2d appropriate

It be for Idaho Falls to

pass prohibiting an ordinance all sidewalk

vending prohibiting dog even hot mobile However, appropriate

stands. it is not implement policy by such a

selectively and improperly applying ordi- its

nances. would reverse and remand for

trial. STEELMAN,

Kenneth Plaintiff-Respondent, Jensen,

Larry MALLORY, D. O. Richard L.D.K., Inc., an Idaho

corporation, Defendant-Appellants.

No. 15619. of Idaho. 21, 1986.

Feb.

Rehearing April Denied

Case Details

Case Name: Kleiber v. City of Idaho Falls

Court Name: Idaho Supreme Court

Date Published: Feb 19, 1986

Citation: 716 P.2d 1273

Docket Number: 15758

Court Abbreviation: Idaho