*1
testimony.
during
days
to consent
to the search of his
the second of five
business
evidence,
premises
having
all of the
it
constituted fundamental error when Without
heard
court
purpose
testimony
for such
is to
would be difficult for the district
show
guilt.
impact
prosecut-
accurately
consciousness of
assess the
of the
ing attorney’s improper conduct.
though
prosecuting
Even
attor
prosecuting
for the
There was no excuse
ney’s
eliciting
testimony
conduct in
con
attorney seeking
Sergeant
Clark’s
elicit
error,
stituted fundamental
such error does
during
opinion
veracity
toas
Christiansen’s
automatically require
Chap
not
reversal.
police interrogation
testimony
that Chris-
824,
California,
man v.
386 U.S.
87 S.Ct.
consent tо a search of his
tiansen refused
(1967);
Robbins,
heard outside the Af courtroom, jury
ter the
left the
he asked for
a mistrial. The district court stated that the
473 *3 Boise, Furey, appellants.
Patrick D. for Wasden, Attorney Honorable Lawrence G. General, Boise, respondent. Deputy for At- General, torney Toryanski ar- Mitchell E. gued.
Moore, Smith, Turcke, Chtd., Buxton & Boise, Counties, for Idaho Association of as argued. amicus curiae. Susan E. Buxton SCHROEDER, Chief Justice. appeal upon This calls the Court to deter- scope “litigation exception” mine the law under 2345(l)(f). The statute has since been amended, case, addressing the issue therеby rendering this decision valueless as precedent litigation exception. on the subsidiary issue of what “written constitutes minutes” could have been removed from the by transcribing recording case at little cost compared public being expended to the funds for this The third issue concerns question of the intent that must be proved to establish a violation of the meeting I. AND
FACTUAL PROCEDURAL
BACKGROUND County On June Ada Commis- Yzaguirre, Judy Peavey-Derr, sioners Rick officially and Fred Tilman met ses- County sion as the Ada Board of Commis- Upon sioners. commencement of the meet- ing go the Board voted to into executive “litigation exception,” session under the 2345(l)(f), City to meet with Boise 67— Councilman Bisterfeldt. The votes Vern *4 subject probable of the future No legal meeting. counsel was at the III. against
The State the filed suit Commis- sioners, seeking a declaration that the execu- THE ISSUES open meeting tive session the violated law requesting imposition and of penal- the civil appeal presents questions This three of against ties each of the indi- “litigation Commissioners law. The first is whether the ex- 67-2345(l)(f) vidually. These be penalties would a fine of ception” § in former I.C. can against each The apply Commissioner. legal present. $150.00 where no is The Commissioners answered and counterclaimed recording an of second is whether audio a declaratory judgment meaning for a as to the vote to enter executive satisfies the session 67-2345(l)(f). 67-2345(1) § I.C. The requirement § of district court that I.C. the granted the judgment State’s motion for on votes in the minutes. A be recorded further pleadings, § holding the that I.C. issue a violation war- arises as whether 2345(l)(f) applies only a governing against when imposition penalties rants of the civil counsel, 67-2347(2). body meeting § is with its the under Commissioners I.C. recording satisfy that the audio failed to the 67-2345(1) §
requirement I.C. that the Litigation Exception A. enter be vote to executive session “recorded 2345(l)(f) § 1. does Idaho Code 67— in the minutes.” presence attorney the of an appeal. The Commissioners The Idaho general public there is “where Association of is before the Counties Court probable litigation.” awareness of as amicus on the issues of whether сuriae that legislature declared “the Idaho’s has litigation exception requires public policy public formation of is business good an there and whether is and shall not be conducted secret.” I.C. exception penalty provision faith the civil pro- § law 67-2340. Idaho’s 67-2347(2). § of I.C. governing body vides that “all of a public public agency shall be
II. be to attend persons permitted and all shall STANDARD OF REVIEW provided by any meeting except as otherwise 67-2342(1). judgment exception § An pleadings A re I.C. is is act.” sessions,” during ruling provided under for “executive viewed the same standard as summary may judgment. Engelk governing body Trimble v. which a exclude on ing, 939 P.2d “for deliberation certain matters.” on 67-2341(3). § Summary judgment proper I.C. Executive sessions are whеre any enumerat- pleadings, depositions, “the admissions authorized 67-2345(1), file, affidavits, § together any, “[n]o if executive on I.C. taking any may purpose issue session held for genuine show that there is no as to moving making any final decision.” party fact final action or material and that § to a as a matter of law.” I.C. entitled present dispute scope biguous concerns the must be construed to mean statute “litigation exception” in former it to mean. Id. what the intended 67-2345(l)(f), provided gov- intent, that a legislative To ex- ascertain Court erning body could hold an executive session amines not the literal words of the legal representa- “To consider and advise its statute, pro- but the reasonableness of the pending litigation tives in where there is posed interpretations, policy behind general public probable litiga- statute, history. legislative and its Id. 2345(1)(f)(2006).1 tion.” I.C. The dis- 67— litigants argue Both and the amicus 2345(1)(f) trict court held “can 67— 2345(l)(f) meaning of I.C. can be 67— be exercised when a gleaned plain reading language. from a of its with its counsel to discuss parties proposes Each the three differ- pending litigation probable litigation about plain reading. provision, again, ent
which there is
awareness.”
reads as follows:
statutory interpretation.
This is an issue of
An executive session
be held:
objective
statutory interpre
give
tation
legislative
is to
effect to
intent.
legal represen-
To consider and advise its
Bateman-Hall,
Robison v.
pending litigation
tatives in
or where there
Because “the
*5
general public
probable
awareness of
guide
legislative
best
intent is the words of
litigation.
itself,”
the statute
begin
statute must
with the literal words of
67-2345(l)(f).
parties agree
the statute.
In re Permit No.
121
legal representatives”
legal
“its
refers to
819, 824,
848,
(1992);
828 P.2d
853
governing body holding
counsel for the
Stores,
Country
accord McLean v. Maverik
meeting.
The issue is whether a
Inc.,
810, 813,
756,
142 Idaho
135 P.3d
759 body may
probable litigation
discuss
in exec-
(2006).
statutory language
Where the
is un
simultaneously advising
utive session without
ambiguous, the Court does not construe it
legal representatives.
its
simply
but
follows the law as
Mc
written.
argue
The Commissioners
that the statute
Lean,
813,135
142 Idaho at
P.3d
759. The
read,
essence,
should
be
as follows:
plain meaning of a
pre
statute therefore will
may
An executive session
be held to con-
clearly expressed
vail
legislative
unless
intent
sider,
legal representatives
and advise its
contrary
plain meaning
or unless
leads to
(1)
(2)
in, litigation
pending
or
Gump,
absurd results. Gillihan v.
140 Idaho
sufficiently probable
general
as to arouse
264, 266,
514,
92 P.3d
516
In deter
public awareness.
mining
ordinary meaning
its
“effect must be
Commissioners,
According to the
the word
given to all
possi
the words of
if
the statute
ble,
“and” does not
that a
void,
so that none will
superfluous,
or
(“consid-
Mercer,
must conduct both activities at once
108,
redundant.” State v.
143 Idaho
advise”),
(2006)
109,
308,
merely
er and
but
enumerates two
138 P.3d
(quoting
In re
separate purposes
131,
for which executive ses-
Company,
Winton Lumber
57 Idaho
(1936)).
664,
sion is
litiga-
authorized
connection with
P.2d
tion.
If the
of the statute is
Amicus Idaho Association of Counties
capable of more than one
con
reasonable
differently:
reads the statute somewhat
ambiguous.
struction it is
Carrier v. Lake
(1)
Pend Oreille
An
may
Sch. Dist. No.
executive session
be held
(2)
An am-
pending litigation;
consider
to advise
appeal
pending,
legal
1. While this
ence of
counsel at
executive
an
session
67-2345(l)(f)
amended I.C.
to read as follows:
satisfy
requirement.
does
Sess.,
legal
Leg.,
Reg.
To communicate with
for the
S.B.
59th
1st
public agency
(enacted
26, 2007).
to discuss the
ramifications
Sess.
ch. 174
Laws
March
legal options
pending litigation,
amеndment,
of and
July
which
effective
becomes
yet being litigated
controversies not
but immi-
2007, does not
affect
outcome of this case.
nently likely
litigated.
pres-
to be
The mere
urged by the
cannot be
pending litiga-
The result
legal representatives
(3)
the text of the statute.
tion;
reconciled with
general public
there is a
or where
probable litigation.
awareness
part of the stat-
It follows that the second
ute,
general public
aware-
“where there is
amicus,
and
According to the
“to”
“where”
litigation,”
sep-
constitutes a
probable
ness of
The first
begin
separate
clause.
each
independent circumstance under
arate and
clause,
contains the “consider and ad-
may be held. Un-
which executive sessions
forth
language,
vise”
sets
several
interpretation,
“in”
der
State’s
is authorized.
for which an executive session
(“in
parallel; each subclause
“where” are
“where,”
clause, beginning with
The second
litigation”
there is a
pending
and “where
a circumstance in which it is al-
identifies
probable litiga-
general public awareness of
lowed.
tion”)
condition under
specifies an alternative
thusly:
The State reads the statute
may
“consider
which a
may be held to con-
An executive session
legal representatives.” This inter-
advise its
legal representatives
sider and advise its
however,
if
only works
“consider
pretation,
(2)
(1)
pending litigation
or where there
representatives” stands
and advise its
probable
itself,
is a
if “consider”
other words
legal representatives.” On the
refers to “its
hand,
“pending
if “consider” refers
other
State,
only permissible
According to the
does not follow
litigation,” then “where”
“to con-
purpose for an executive session is
(l)(f),
grammatically
anything
from
else
legal representatives.”
and advise its
sider
directly from “held.” In
must follow
remaining language simply clarifies that
words,
signify
each
other
“to” and “where”
and advice must concern
the consideration
“an ex-
independent conditions under which
probable litigation.
pending or
Thus,
session
be held.”
ecutive
*6
merely
Ambiguity is not established
(1)
may be held:
An executive session
differing inter
parties present
because the
consider,
legal representa-
and advise its
No.
pretations to the court.
In re Permit
(2)
in,
litigation; or
where
pending
tives
36-7200,
823-24,
ordinances and their tion; 2. there Whether was a (c) votes, probable litigation upon The results of all member, request of a appeal.
not at the vote of each issue member, by name. required, Even if an is not The Commissioners concede that the votes the State contends the statute was violated are not recorded the handwritten notes topics because some discussed in the execu apparently from the concluded tive session did not litigation relate to at all. litigating this issue was more conse- parties Both submitted affidavits to the dis quence expedient transcribing than the support trict court in of their characteriza recording They argue for a few dollars. tion of what was meeting, discussed at the statutory requirements are satisfied be- properly but the district court did not ad preserved cause the information is in an au- dress the issue its decision. Whether the recording meeting. They dio argue subject meeting qualified matter of the under that the of the statute are better 67-2345(l)(f) disputed is a issue of fact recording by served an audio hand- than that cannot be resolved in the motion for summary necessarily written notes because a pleadings. recording pre- omits information whereas *7 complete a serves and accurate account of B. Minutes proceedings. They point the also to the Pub- Act, §§ lic seq., Records I.C. 9-337 et 1. The motion votes to enter execu- “writing” “every defines to include means of tive session were not recorded in the recording, including ... sounds.” I.C. 9- required by minutes as law. 337(15) (Supp.2006). That not definition is law, open meeting Under the an executive part open meeting law. session not must convene for an author- Legislative definitions of terms purpose comply ized but also must pro- with included within a statute control and dictate requirements. cedural The Commissioners meaning of those in terms as used unanimously by voted roll call vote to enter Mock, 890, 882, statute. White v. 140 Idaho However, executive session. alleg- the State 356, (2004). 364, Statutory 104 P.3d defini comply es that the executive session did not provided apply tions in one act do not “for all with meeting law the min- because generally and in all contexts but utes do not reflect who made the motion to they they establish what mean where go into executive session or who voted on the Yanke, appear Maguire in that same act.” v. motion. 829, 92 The decision to enter provided executive session Where the has not a (2/3) approved by statute, must be “a two-thirds vote definition terms in the statute common, meeting by given recorded the minutes of the everyday meanings. are their DeLaRosa, 405, 407, meeting taken at a Idaho tion violates Landis v. 410, 412 P.3d null meeting law is and void. 2347(1). apply in provision This does not open meeting does not ex law no is this case because action or decision does, however, It plicitly define “written.” challenged. being taking minutes: distinguish recording from mandatory, taking of written minutes” is “the remedy, The other added amend transcript a nor a re “neither full
whereas required.” cording meeting of is penalty provides civil ment 67-2344(1). common, ordinary mean any member against to words or ing of the term “written” refers knowingly participates in a conducts or “who Black’s symbols recorded visual form. See meeting provisions of this which violates ed.2004) (8th (defining Dictionary 1641 Law The Commission act.” I.C. “Any recording “writing” as intentional violation, argue that even if there was a ers form, in a in the form words visual whether they they entitled to because are dismissal any handwriting, printing, typewriting, or meeting the stat complied believed form”). recording is tangible An audio other that the Commis ute. The State contends that term is com “written” record as are there sioners’ beliefs irrelevant because monly understood. good no faith under the statute. defense Act nor the the Public Neither Records State, liability attaches According to the jurisdictions by the from other cited cases (1) showing that upon a the Commissioners interpre- are applicable. Commissioners (2) they meeting, in the knew participated urged by the contra- tation Commissioners meeting, and participating in the statutory “every if means of dicts the text: (3) violated the writing, the Com- recording” constitutes as argue, аccom- nothing then missioners by specifying must be
plished that minutes form, and “written” be- written the term necessary im The mental state superfluous. comes de penalty the statute pose a civil under the statute. State pends on argument The Commissioners’ about Fox, P.2d recording a writ- superiority of an audio over v. policy. Sterrett, summary presupposes (1993) issues of ten (quoting 182-83 prac- Recording a commendable (1922)) 1071, 1072 207 P. tice, noted, there are but as the district court (“[Wjhether necessary a criminal intent is advantages having information also statutory is a matter element of offense event, written, In summarized form. construction, lan from the to be determined to wheth- policy considerations are irrelevant its manifеst guage of the statute in view of complied with the stat- er the Commissioners interpreting design____”). purpose legislature clearly expressed ute. The of the stat statutory language, all the words minutes. intent to written and the given possible, must if ute effect comply did not "with The executive session In re a whole. must be construed as statute *8 open meeting The handwritten law. 36-7200, 822-23, at Permit No. record, only writ- in the are the *9 with Taking the the reading. on an initial It allows for an execu- true, allegations Commissioners’ to be the governing body tive session of consid- “[t]o is not entitled to as a matter legal representatives er and advise its in However, of law. the mental state of the pending litigation general or where there is a оr Commissioners individual Commis- public probable litigation.” question provision sioner is a of fact to be contemplates give determined. The and take 480 in legal the and counsel ence of counsel to be
between order invoked. agree I regarding pending reading. threatened with that language exception applies the indicates However, certainly I would concede that unitary process governing the to a where language employed litigation the in the ex- body legal litigation receives advice ception subject- is somewhat awkward when attorney gives from its and instructions on word-by-word microscopic to scrutiny. proceed. to “Consider” and “advise” are how I wоuld read “consider and advice” Where as “and,” by only together bound an not performed acts to in tandem with be the by things of how also consideration work counsel, presence legal the of Court reads attorney-client relationship. an performed them acts that can sepa- to be be rately be appears to have the consideration to allowable The district court read —the manner, presence the of litigation exception in this or without counsel determin- only advising legal representa- so that the ing follows: of as presence requires tives their at an executive whole, reading In the statute as includ- prefer reading I session. the ad- While ing authorizing all the of circumstances set by adopted and general vanced the (l)(f) forth in section it is clear that court, I by concede that the district would governing can be when exercised reading put plausible the Court forth has of body meeting is with its counsel to Indeed, readings the statute. three different pending litigation probable liti- discuss statutory language presented the of to gation general public about is which there parties the the amicus. Court and Al- interpretation not awareness. That does though reading ques- amicus the is somewhat require presence of counsel at all meet- my opinion, appears that my tionable it ings, require nor does at it to be reading reading and the of the Court are meetings there are whenever Thus, and I plausible both reasonable. But, conflicts it does are discussed. statutory language would find the be am- require gov- when counsel’s the biguous employ statutory and the rules erning go into wants executive legislative to determine the in- construction session to matters which tradition- discuss necessary tent. “If for this Court to it is ally privileged be communications would statute, attempt interpret a will Court be product. or would considered work intent, legislative construing and ascertain argument, Contrary to this re- Defendants statute, used, may language examine the does quirement not burden bod- interpre- proposed reasonableness communities or ies small bod- tations, policy and the behind statute.” regular ies that have access to Gump, 140 Gillihan v. Idaho they It simply counsel. means when determining P.3d (l)(f) go into wish to invoke and executive scheme meaning of a statute “overall session, they do so to discuss must legislation intent must not be over- of- the litigation with le- pending or future their looked.” Idaho State Tax Comm’n Haen- exception lim- gal representative. That Bros., Inc., er Idaho P.2d (and present could ited to when counsel is 304, 307 then, telephonically) but even only to the executive discuss session openness proposition We with the start probable litigation about which pending or government. The framers of Idaho there is a awareness. This proceedings of the State Constitution wаnted pur- consistent with the Legislature to be conducted view. Open Meeting pose of Idaho Law it, delegate put “I want the electric As one reading plain from of that apparent every act that light upon turned publicity provision. Proceedings and Debates do.” II Thus, litigation the district court found the Constitutional Convention of (I.W. 1912) (State of Del. A.F. unambiguous, to be Hart ed. exception to be Parker). is no to believe that protect attorney-client communi- There reason designed have cations, would ex- necessarily pres- and to constitutional framers *10 pected county city governments. strong public policy less of in law is the favor of Indeed, Legislature provided open public meetings county the for has commissions. openness, regard meetings both with Open Meeting Law was enacted in governmental bodies and records of those provide meetings open 1974 “to for more § presumes bodies. Idaho Code 9-338 governing bodies Idaho” and to combat public all open records Idaho are for in- many governing the attitude of “that bodies spection by public. presumes the This Court public’s public’s business is none of the public that all records are to disclosure 602, Purpose, business.” H.B. Statement of exemptions narrowly and that all are con- (Idaho 1974). Leg. 42nd 2nd Sess. As enact- Publications, strued. Federated Inc. v. 1974, legislation did not contain a City, 459, 463, 21, Boise 915 P.2d Laws, litigation exception. 1974 Idаho Sess. 187, 1978, p. In Legislature Ch. 1492. 582, 67-2340,
In enacted H.B. Idaho Code which established the liti- Legislature (l)(f) gation exception in policy “finds and declares that it is subsection to “allow of this go public state the formation of bodies to into executive session policy is public to consider representa- business and shall not be and advise its conducted in Legislature pending litigation.” secret.” The tives on H.B. implemented State- this (Idaho policy through Purpose, Leg., mandate ment of 44th 2nd Idaho Code Sess. 2342(1), 1978); Laws, requires which all 1978 Idaho Sess. meetings p. of a Ch. public agency legislative history 759. The to be instructive. open, Representative specified exceptions Ingram sponsor certain was the for Evans, legislation, executive sessions. proposed Gardner v. which was 925, 929, According 719 P.2d Association of Idaho Cities. exceptions should, for developed executive the record in the House sessions exceptions law, like public legislation for the Affairs Committee when the records narrowly first Singer, construed. See Norman considered: J. Sutherland Statutory Statutes and Construc- Rep. Ingram spoke to the committee on (6th tion, Ed.2002) (“where § 47:11 general proposed legislation and said this
provision in a statute has certain limited amendment would allow bodies exceptions, all doubts should be resolved in city county like councils and commission- favor general provision rather than the ers, etc., go into exеcutive session to exceptions”). legal representa- consider and advise its pending litigation. tives on He said the counties, regard specifically With Association of Idaho Cities had asked that Legislature provided has in Title the code bring he this to committee since he was pertaining law, title county to counties and original meeting the author of the law. that all county of a board of com- Marty Mr. Peterson from the Association missioners public.” “must be Idaho Code spoke of Idaho Cities to the committee and Legislature provides city said this amendment will allow coun- exceptions no county law. 1985 the cils to meet with counsel matters Appeals Court of found a clear and definite concerning litigation attorney-client in an provision conflict between this and the execu- relationship. provisions tive session of I.C. holding govern that the latter because it was Boundary later-enacted. Nelson v.
County,
Rep.
good open-
Winchester felt we have a
(Ct.App.1985). This Court
ing meeting
has not had occa-
already
wordage
law
and the
particular
sion to rule on this
issue and it
this bill would allow the
to be
necessary
to do
light
meetings.
so at this time in
shut out of the
He felt this was
legislative history,
contrary
indicates that
Rep.
to the
litigation exception
was not
Ingram
intended to
said he had
been little concerned
apply
himself, however,
in the circumstances of this case.
wordage
about the
when
important
county
What is
to draw from the
a suit had been filed he felt it would be
*11
for a
to meet
legitimate
Thus, entity requesting legislation legislative sponsor to allow intended
governing “to meet with bodies concerning litigаtion in an attor- matters
ney-client relationship.” exception With no attorney-client
for confidential communica- enactment,
tions in the 1974 and its would have had to session, litigation strategy
discuss privi-
thereby defeating attorney-client
lege. designed amendment The 1978
specifically keep attorney-client ex-
change It should not be more confidential.
broadly construed.
Although this case has been somewhat Legislature’s
mooted 2007 amendment 67-2345(1)©, it is
of I.C. worthwhile long-standing policy in
make mention of the maintaining openness govern-
Idaho of narrow requires
ment. That construction rule, openness including exception to the
openness bodies.
Thus, support opinion I Court’s while regard I respects,
all dissent with other part III.A.l. and would conclusion ruling
affirm court’s on that is- the district
sue. in the notes were not recorded handwritten meeting, they preserved but recording an audio not transcribed was public. to the The executive is available 56(c). was not For motion session recorded. I.R.C.P. of a permitted moving pleadings, party attend the executive session. on the allegations the opposing admits all session, In the executive the Commission- party’s pleadings and also admits the untruth ers and Councilman Bisterfeldt discussed re- allegations of its own the extent have City County lations between Boise and Ada Bloom, Sterling been denied. v. Idaho which had become strained over the issue (1986) (supersed potential approval county subdivision statute). grounds by ed on other This Court impact county development freely reviews statute city The meeting cost services. did not application facts. VC VFP pending litigation, relate to but the Commis- Co., 326, 331, 109 P.3d Dakota topics claim sioners that the discussed were
Notes
notes