Pentico v. Idaho Commission for ReapportionmentPentico v. Idaho Commission for Reapportionment
Original proceeding before the Supreme Court of the State of Idaho.
The petition is denied.
Edward W. Dindinger, Dindinger & Kohler, PLLC; and Thomas J. Katsilometes, Thomas J. Katsilometes, PLLC, Boise, for petitioner, Christopher Pentico. Edward W. Dindinger argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for respondents, Idaho Commission for Reapportionment and Lawerence Denney. Megan A. Larrondo argued.
This case arises out of a petition asserting the Idaho Commission for Reapportionment (“the Commission“) violated
Under
I. FACTUAL AND PROCEDURAL BACKGROUND
The federal government conducts a national census every ten years. When the results of that census are available,
On November 5, 2021, after weeks of traveling around the state and holding public hearings seeking feedback from residents, the Commission voted, four in favor to two against, to adopt Plan C03. On November 10, 2021, the Commission “reaffirmed its adoption” of Plan C03, adopted its “Final Report,” and adjourned. The Commission filed its Final Report with the Secretary of State‘s office on November 12, 2021.
On December 15, 2021, Christopher Pentico, a voter registered in Idaho, timely filed a verified petition against the Commission and the Secretary of State (collectively “the Respondents“). “In accord with ” “Both constitutional questions and questions of statutory interpretation are questions of law over which this Court exercises free review.” CDA Dairy Queen, Inc. v. State Ins. Fund, 154 Idaho 379, 382, 299 P.3d 186, 189 (2012) (quoting Stuart v. State, 149 Idaho 35, 40, 232 P.3d 813, 818 (2010)). Pentico first asserts that the Commission filed its Final Report late, in violation of Both parties agree that, once the Commission is “organized,” the Commission must file its Final Report with the Secretary of State‘s office within ninety days. The parties’ real disagreement is over the meaning of the term “organized.” Pentico argues the Commission was organized on August 12, 2021, the day the Secretary of State issued his “Order Establishing Commission for Reapportionment[.]” Respondents counter that the Commission was organized on September 1, 2021, the day the Commission “elected its leaders and agreed upon the rules that governed its conduct[.]” We conclude that the Commission was “organized” and the ninety-day time limit began to run on September 1, 2021, the day the Commission elected two of its commissioners as co-chairs of the Commission. “Where a statute or constitutional provision is clear we must follow the law as written.” Sweeney v. Otter, 119 Idaho 135, 138, 804 P.2d 308, 311 (1990). “Where the language is unambiguous, there is no occasion for the application of rules of construction.” Id. “The fundamental object in construing constitutional provisions is to ascertain the intent of When a question before this Court requires statutory intеrpretation, we apply the following principles: The objective of statutory interpretation is to derive the intent of the legislative body that adopted the act. Statutory interpretation begins with the literal language of the statute. Provisions should not be read in isolation, but must be interpreted in the context of the entire document. The statute should be considered as a whole, and words should be given their plain, usual, and ordinary meanings. It should be noted that the Court must give effect to all the words and provisions of the statute so that none will be void, superfluous, or redundant. When the statutory language is unambiguous, the clearly expressed intent of the legislative body must be given effect, and the Court need not consider rules of statutory construction. State v. Schulz, 151 Idaho 863, 866, 264 P.3d 970, 973 (2011) (quoting Farber v. Idaho State Ins. Fund, 147 Idaho 307, 310, 208 P.3d 289, 292 (2009) (internal citations omitted)). Estate of Stahl v. Idaho State Tax Comm‘n, 162 Idaho 558, 562, 401 P.3d 136, 140 (2017). However, “[i]f the language of the statute is capable of more than one reasonable construction it is ambiguous,” and a statute that is ambiguous must be construed with legislative intent in mind, which is ascertained by examining “not only the literal words of the statute, but the reasonableness of the proposed interpretations, the policy behind the statute, and its legislative history.” BHC Intermountain Hosp., Inc. v. Ada Cnty., 150 Idaho 93, 95, 244 P.3d 237, 239 (2010) (quoting State v. Yzaguirre, 144 Idaho 471, 475, 163 P.3d 1183, 1187 (2007)). “A statute is not ambiguous merely because the parties present differing interpretations.” Id. at 96, 244 P.3d at 240. “Instead, the statute is ambiguous only if more than one of the interpretations can be reasonably construed from the language of the statute.” Id. The issue at hand stems from the parties’ differing interpretations of (2) Whenever there is reason to reapportion the legislature or to provide for new congressional district boundaries in the state, or both, because of a new federal census or because of a decision of a court of competent jurisdiction, a commission for reapportionment shall be formed on order of the secretary of state. The commission shall be composed of six members. The leaders of the two largest political parties of each house of the legislature shall each designate one member and the state chairmen of the two largest political parties, determined by the vote cast for governor in the last gubernatorial election, shall each designate one member. In the event any appointing authority does not select the members within fifteen calendar days following the secretary of state‘s order to form the commission, such members shall be appointed by the Supreme Court. No member of the commission may be an elected or appointed official in the state of Idaho at the time of designation or selection. (3) The legislature shall enact laws providing for the implementation of the provisions of this section, including terms of commission members, the method of filling vacancies on the commission, additional qualifications for commissioners and additional standards to govern the commission. The legislature shall appropriate funds to enable the commission to carry out its duties. (4) Within ninety days after the commission has been organized or the necessary census data are available, whichever is later, the commission shall file a proposed plan for apportioning the senate and house of representatives of the legislature with the office of the secretary of state. At the same time, and with the same effect, the Reading Second, the provision lays out the process for choosing members of a commission. Notably, Third, subsection 2 utilizes the verb “formed,” as distinct from subsection 4, which utilizes the verb “organized.” Merriam-Webster defines “form” as “to give a particular shape to[;] shape or mold into a certain state or after a particular model” and “to take form[;] come into existence[;] arise.” Form, MERRIAM-WEBSTER, INC., https://www.merriam-webster.com/dictionary/form#synonyms (last visited Feb. 10, 2022). “Organize” is defined as “to form into a coherent unity or functioning whole[;] integrate[;]” “to set up an administrative structure for[;]” “to arrange by systematic planning and united effort[;]” and “to arrange elements into a whole of interdependent parts[.]” Organize, MERRIAM-WEBSTER, INC., https://www.merriam-webster.com/dictionary/organize#synonyms (last visited Feb. 10, 2022). Even though Pentico asserts that the meanings of the two verbs are the same, they are not directly synonymous: the definitions of “form” imply creation, as opposed to the definitions of “organize,” which “impl[y] arranging so that the whole aggregate works as a unit with each element having a proper function[.]” Id. The use of these two different verbs in the same article of the Constitution means that the drafters of the provision drew a distinction between the Secretary of State‘s order to form a commission and the commission‘s responsibility to organize itself. In other words, “formation” of a commission is a precursor to its “organization.” Likewise, we find no merit to Pentico‘s argument that the plain reading of (1) A commission for reapportionment shall be organized, upon the order of the secretary of state, in the event that: (a) A cоurt of competent jurisdiction orders a redistricting of an existing state legislative or congressional plan; or (b) In a year ending in one (1), a new federal census is available, in which case an order shall be issued no earlier than June 1. (2) A commission formed pursuant to paragraph (1)(b) of this section shall be reconvened if, prior to the next general election, a court of competent jurisdiction orders the plan adopted by that commission to be revised. Pentico asserts that “[t]he plain language of In order to determine when a commission is organized, we must look to Pentico warns that, if we do not adhere to his reading of the ninety-day deadline, there is a possibility that a future commission will “delay[] and dither[] indefinitely, irretrievably gumming up Idaho‘s democratic process” by refusing to elect chairpersons. We agree that this opinion should not be read to give future commissions license to prolong their official duties; however, we decline to ignore the plain language of We hold that the Commission was organized on September 1, 2021, when the Commission elected two commissioners as co-chairs, pursuant to Pentico next argues that Plan C03 violates Congressional and legislative redistricting plans considered by the commission, and plans adopted by the commission, shall be governed by the following criteria: . . . (7) District boundaries shall retain the local voting precinct boundary lines to the extent those lines comply with the provisions of section 34-306, Idaho Code. When the commission determines, by an affirmative Pentico argues that “the Commission lacked the power to make such a determination with respect to congressional districts[.]” He points to the language of Respondents counter that the plain language of In reply, Pentico reasserts that, under the plain language of Additionally, Pentico argues that the Legislature‘s use of the word “or” cannot mean that the commission and the legislative redistricting plan “are two different and unalike things” because “[t]he legislative redistricting plan is adopted by the commission; in effect, it is its creation.” (Footnote omitted.) Pentico also asserts that public policy considerations Turning to the statute in question, we hold that the Commission acted consistently with statutory criteria when it adopted a congressional reapportionment plan that split six precincts. We further conclude that the statute is unambiguous. Subsection 7 applies to “[c]ongressional and legislative redistricting plans considered by the commission, and plans adopted by the commission[.]” The heart of the parties’ disagreement is the escape clause languagе contained in section 72-1506(7). That section provides that if five members of a commission affirmatively vote that the commission cannot complete its duties by fully complying with subsection (7), then the subsection‘s requirements “shall not apply to the commission or legislative redistricting plan it shall adopt.” Pentico offers no definition of “the commission;” instead, he simply asserts that it cannot be read to include the congressional reapportionment plan. Looking to the plain language of the statute, we conclude that “the commission” means exactly that: the commission. By extension, this includes any plans—either congressional or legislative, or both—the commission adopts. Accordingly, we determine the statute is not ambiguous. The only reasonable interpretation of the statute is that it gives the commission the authority to split voting precincts in both its congressional and legislative plans. Pentico argues that the statute does not give the commission the ability to split precincts in its congressional plan, while conceding it gives the commission the ability to do so in its legislative plan. Why would the legislature give the commission the ability to split precincts for one plan, but not the other? The simple answer is it would not make sense to do so. Pursuant to The board of county commissioners may establish an absentee voting precinct for each legislative district within the county. The boundaries of such absentee precincts shall be the same as those of the legislative districts for which they were established. The board shall have the authority to create new or consolidate established precincts only within the boundaries of legislative districts. (1) Precinct boundaries shall follow visible, easily recognizable physical features on the ground including, but not limited to, streets, railroad tracks, roads, streams and lakes. The exception shall be when a precinct boundary coincides with a city, county, Indian reservation or school district boundary which does not follow a visible feature. (2) In order to achieve compliance with the requirements of this section, and simultaneously maintain legislative district boundaries which may not follow visible features, a county may designate subprecincts within precincts, the internal boundaries of which do not follow visible features. Contrary to Pentico‘s assertions, precinct boundaries are not required to be redrawn based on a congressional reapportionment plan, nor are the precincts required to follow the boundaries of congressional districts. See Because we conclude the statute is not ambiguous, we need not resort to an analysis of the legislative history or policy arguments to determine the meaning behind the statute. However, we do note that the legislative history of District boundaries shall retain the local voting precinct boundary lines to the extent those lines comply with the provisions of section 34-306, Idaho Code. When the commission determines, by an affirmative vote of at least five (5) members recorded in its minutes, that it cannot complete its duties for a legislative district by fully complying with the provisions of this subsection, this subsection shall not apply to the commission or legislative redistricting plan it shall adopt. This legislation focuses on the redistricting process to protect and preserve communities of interest in the following ways: 1. Counties shall not be divided whenever possible; 2. Counties or portions of a county in a district shall be directly connected by roads and highways to establish communities of interest; 3. District boundaries and local voting precincts shall remain intact as much as possible. (Italics added.) Notably, the Statement of Purpose only discusses the redistricting process in general; it does not specifically address the distinction between the legislative redistricting process and the congressional reapportionment process, both of which are governed by Further, a review of the April 1, 2009, and April 10, 2009, Senate State Affairs Committee meeting minutes, as well as the April 16, Additionally, the April 1, 2009, Senate State Affairs Committee meeting minutes reflect that Senator Kelly asked if the language change from should to shall is grammatical? Senator Geddes answered it seems to him that it is a contradiction of terms because we say that they shall to the extent possible. Shall does not have the weight that it normally means in most legislation. This puts more emphasis in the division of counties and precincts and still allows the Commission to deviate from that, in order to comply with the other provisions in redistricting. Senator Kelly asked if there is a reason to believe that part of these changes will be declared invalid or unconstitutional because of the severability clause? Senator Geddes replied “no“, the severability clause is part of the original legislation. Meeting on RS18744C2 Before the S. State Affairs Comm., 60th Leg. 6 (April 1, 2009) (bolded emphasis in original, italics added). This supports the interpretation that the 2009 amendment was not intended to remove congressional reapportionment from the escape clause in section 72-1506(7). Additionally, we decline to consider Pentico‘s public policy argument because he did not adequately raise it in his opening brief. For this Court to consider an issue, the appellant must identify legal issues and provide authorities supporting the arguments in its opening brief. I.A.R. 35. “A reviewing court looks only to the initial brief on appeal for the issues presented because those are the arguments and authority to which the respondent has an opportunity to respond in the respondent‘s brief.” Munden v. Bannock Cnty., No. 47978, 2022 WL 386057, at *14 (Idaho Feb. 9, 2022) (quoting H.F.L.P., LLC v. City of Twin Falls, 157 Idaho 672, 684, 339 P.3d 557, 569 (2014)). In Pentico‘s opening brief, the extent of his public policy argument is the following: “Given the huge difference between the size of Idaho[‘s] legislative and congressional districts, it is not difficult to imagine policy reasons behind allowing the Commission leeway to split voting precincts in drawing the former but not the latter.” However easy these policy reasons may be for Pentico to imagine, he left such imagining to the Court and did not actually identify any public policy reasons until he filed his reply brief, which deprived the Respondents of their ability to respond. See Suitts v. Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005) (“A reviewing court looks only to the initial brief on appeal for the issues presented because those are the arguments and authority to which the respondent has an opportunity to respond in the respondent‘s brief.“). Even if we were to consider Pentico‘s purported policy arguments, they are without merit. Notably, Pentico asserts in his reply brief that “[s]plitting precincts is inherently disruptive to the electoral process, as it requires county commissioners to redraw precincts and county clerks to canvass them, both of which impose costs and delays.” However, Pentico appears to concede this will happen anyway: in arguing that the Commission filed its Final Report too late, Pentico writes, “[o]bviously, any delay in the redistricting process can have disastrous downstream effects: county commissions must wait [to] redraw new prеcinct boundaries [and] county clerks must wait to canvass new precincts[.]” Pentico effectively concedes that legislative redistricting will likely lead counties to redraw precinct boundaries. Additionally, as discussed above, precincts—if they are redrawn—must be redrawn to conform with legislative districts, not congressional districts. Consequently, we do not find his policy arguments for requiring the Commission to retain the precinct boundaries in its congressional redistricting plan to be persuasive. Finally, Pentico argues that, even if the Commission had the power to determine it could not retain local precinct boundary lines and still draw a legal plan, this determination was factually erroneous because Plan C039, a plan Pentico drew and submitted to the Commission, had a ”zero-person population deviation” and split no precincts. (Italics in original.) Respondents contend that “[t]he Commission‘s determination that it could not complete its duties without splitting precincts was factually correct.” Respondents note that Pentico has not challenged the correctness of the Commission‘s determination with respect to the legislative plan, which is the vote that matters under Respondents’ reading of In reply, Pentico maintains that the Commission could have completed its duties while still retaining precinct boundary lines, as evidenced by his proposed plan, Plan C039. He further argues that the districts in Plan C03 are just as “oddly shaped” as the districts in Plan C039. We hold that, under the arguments presented to us, the Commission was within its power to determine it was unable to complete its duties and retain precinct boundary lines. As discussed above, the vote that matters is the Commission‘s vote that determined it could not complete its duties with respect to the legislative redistricting plan while retaining existing preсinct boundary lines. Pentico has only argued that the Commission‘s determination it could not complete its duties while retaining precinct boundary lines was factually erroneous with respect to the congressional plan. He has not put forth any argument that the Commission could have retained precinct boundary lines with respect to the legislative redistricting plan. Because he has not challenged the vote that matters, his argument necessarily fails. Accordingly, we need not address whether the Commission‘s determination it could not complete its duties in drawing new legislative districts while retaining existing precinct boundary lines was factually supported. See Munden, 2022 WL 386057, at *14 (“For this Court to consider an issue, the appellant must identify legal issues and provide authorities supporting the arguments in its opening brief.“). Therefore, for the reasons stated, we hold Pentico has failed to establish Plan C03 violates Pentico seeks attorney fees and costs on appeal pursuant to Unless otherwise provided by statute, in any proceeding involving as adverse parties a state agency or a political subdivision and a person, the state agency, political subdivision or the court hearing the proceeding, including on appeal, shall award the prevailing party reasonable attorney‘s fees, witness fees and other reasonable expenses, if it finds that the nonprevailing party acted without a reasonable basis in fact or law. In any civil action, the judge may award reasonable attorney‘s fees to the prevailing party or parties when the judge finds that the case was brought, pursued or defended frivolously, unreasonably or without foundation. This section shall not alter, repeal or amend any statute that otherwise provides for the award of attorney‘s fees. The term “party” or “parties” is defined to We have recently stated that, when a party seeks attorney fees pursuant to both We take this opportunity to clarify the confusion surrounding attorney fees that may be awarded against a governmental party. We agree with the reasoning in Sanders and interpret the phrase “unless otherwise provided by statute” in However, as set forth in both For the reasons discussed, we deny Pentico‘s request to issue a writ of prohibition prohibiting the Secretary of State from transmitting the Commission‘s final congressional reapportionment plan, C03, to the President Pro Tempore of the Senate and the Speaker of the House of Representatives. We also deny Pentico‘s request for attorney fees. We award costs to Respondents as allowed by Chief Justice BEVAN, Justices BRODY, MOELLER and ZAHN CONCUR.II. STANDARD OF REVIEW
III. ANALYSIS
A. The Commission filed its Final Report within the ninety-day deadline.
B. Plan C03 does not violate Idaho Code section 72-1506(7).
1. Pursuant to Idaho Code section 72-1506(7), a commission need not retain local precinct boundary lines with respect to its congressional plan if it determines it cannot complete its duties for a legislative district while retaining precincts.
2. Pursuant to Idaho Code section 72-1506(7), the Commission was within its power to disrеgard existing local precinct boundaries in adopting Plan C03.
C. Pentico is not entitled to attorney fees on appeal.
IV. CONCLUSION