*1 above, have III. CONCLUSION we the standards light conclude there- record and reviewed petition for reinstatement Williams’s deciding justified was the ISB from prejudice. stands dismissed appear for the failure to that Williams’s petition is free to file another Williams agree We hearings intentional. was so, provided he elect to do that he should reception of a re- position that ISB’s comply with Idaho State Bar Commission opposition from Williams sponsive brief 306(a), obligates notify him to Rule which presumptive- proposed dismissal the Executive Director Idaho State evidence, indication, if not strong ly a name, any change in writing Bar receiving at one of the mail Williams business, address, or residence and busi- throughout proceedings, addresses telephone If ness or residence number. he readily deduced that which it only re-petition, does he not has Williams status confer- notice of both the received proving his fitness for rein- burden hearing on the motion ence and statement, 518(e)(2), he must ISBCR hut rule Accordingly, we dismiss. process petition his for reinstatement with appear at the status failures to Williams’s maintaining includes diligence, due hearing on the mo- and at the conference intentional, telephonic contact with regular and we written were tion to dismiss during pen- for petition for reinstatement Bar office the Idaho State dismiss prosecution. Fi- dency petition lack of his for reinstatement. appoint Bar shall nally, the Idaho State New Petition May File a B. Williams which, hearing in order to new committee Reinstatement. for any appearance of conflict avoid the ruled, predicat also interest, The committee a member shall not have as 518(b)(3), Williams was on ISBCR ed regularly practices attorney who for rein refiling petition barred Williams. geographical area as same year. State Bar for a statement It is so ordered. 518(b)(3) provides that Rule Commission petition for reinstatement “[n]o (1) year fol filed within one Rule shall be peti

lowing adverse filed on behalf of reinstatement tion for lawyer.” same SERVICES, HEALTH EASTERN IDAHO apparently believed committee INC., Regional Eastern Idaho d/b/a 518(b)(3) it found applied because ISBCR Center, Plaintiff-Appellant, Medical peti- of his on the merits against Williams to dismiss. of the motion at the time tion Snarr, BURTENSHAW, Wylie Clyde applies only when A. the rule R. believe that hearing on the merits. Long, sitting as the Board there has been Clifford V. did not receive Because Williams County Bonne Commissioners merits, apply. does not the rule Equali as Board of of ville County; for Bonneville zation inapplicable in rule find that We further of Bonneville “judg- read the term we this case because Idaho, Defendants-Respon a decision to mean ment” as used therein petition dents. the merits of resolves reinstatement; wit, a determination No. presently entitled petitioner is not Idaho, Supreme Court Because of law. practice to resume Boise, Term. May 1992 for reinstate- petition his our dismissal prosecution lack of predicated on ment is 5, 1992. Nov. merits, conclude we and not on the 518(b)(3) require Williams does not ISBCR filing another year full before to wait a reinstatement.

petition for *2 Clair, Hiller, Dalling,

St. St. Clair & Ida- Falls, plaintiff-appellant. ho William R. Dalling argued.

Anderson, Bush, Falls, Pike & defendants-respondents. Blake G. Hall ar- gued.

REINHARDT, Judge. District This taken from a decision in court determined that it jurisdiction did not have to consider East- Services, ern Health Inc.’s the Bonneville grant Commissioners’ refusal to refund Hospi- paid tal. We conclude that the district court appeal, hear the remand for a trial de novo as

FACTS appellant is the Idaho Re- Eastern Center,

gional facility care Medical a health Falls, located in Idaho Bonneville (hereafter “Hospital”). For the 1989 year, tax was assessed $1,089,- property taxes the amount 710.19, paid in equal to be two installments. 2203A, paid appli- would constitute a retroactive installment was December The first installment, however, 20, 1989; the second change cation of a substantive law. due on June on to note that even if court went result of the late until 5. As a paid applied, statute were failure assessed inter- payment, tax than apply collector rather *3 $47,- penalties in the amount of est and preclude Board for would paid by This amount was the Hos- 764.47. statute, relief that the as would July 6. on pital presented that had no there evidence 13, 1990, Hospital the filed On “designated having as to the Board set a penal- for relief interest and petition adjustments limit” for the claiming payment that the late was due ty, Because no facts “there were de- neglect in there excusable that had been to affidavit, veloped by testimony sworn or personnel in significant in the turnover the before Board” to otherwise show After Hospital’s office. an unre- business properly the Board exercised whether Board, matter, this corded on discretion, the district court found that the 14,1990, denying August issued a letter on Hospital’s contention that the Board Hospital’s request for a reduction supported by abused its discretion was not and interest because the Board penalty was any records and without merit. legal authority allowing find no them could filed Hospital such an The to take action. ISSUES ON APPEAL August on request for reconsideration following Hospital The raises the issues dated the Board also denied letter appeal: August 1990. the district err in determin- Did court September Hospital On ing jurisdiction no that it had over the August from the a notice Hospital’s appeal because: with the district decision of the Board County. Hospital notice A. did reference in Bonneville That The not court Longmore, sent to Ronald Bonneville appeal; was Code 31-1509 its notice § Auditor, as well as to Clerk and Hospital B. The failed to amend no- commissioners, attorney Blake argu- at time of oral tice of Hall, county prosecutor, and the ment; ar- The district heard oral assessor. only from C. was taken 4,1991, April and issued a mem- gument on 14, 1990, August decision and Board’s 24, 1991, in April decision on orandum therefore, timely; and did court that it not have which the held Hospital D. to serve notice Although appeal. to jurisdiction hear proper party. juris- that it recognized court in its 2. Did the district court err deter- 31-1509, it ruled diction under I.C. § 63-2203A, pro- that Idaho Code mination statutory appeal was waived § basis of Hospital no for relief from specify to vides the basis by the failure appeal. notice of payment penalty in its interest on delin- particular statute that the notice The trial court also held quent ad valorem taxes. filed, being more timely appeal was failing the district court err Did decision twenty days after the Board’s than Hospital de conduct a trial novo after decision appealed the Board’s decision. specified in the notice. ap- anticipation filing of this I. proceeded rule on district court

peal, HAD JURISDIC- THE COURT DISTRICT it of its decision that spite the merits APPEAL THE TO HEAR TION hear matter. jurisdiction to was without COUNTY THE BOARD OF FROM there was no factual The court found that DECISION COMMISSIONERS’ excusing the legal basis for that the trial appellant contends neglect, and penalties because of excusable finding it was court 63- erred applying newly enacted I.C. hear jurisdiction from the there nowas reference to I.C. Hospital

Board’s decision because the of appeal the notice insufficient specify of appeal notice support finding of of jurisdiction. lack appeal was taken under I.C. The district court also denied agree. failed to move to denying ap- its memorandum decision amend the notice of oral peal, 31- the district court addressed I.C. argument 31-1509; to include I.C. how- 1509, as follows: ever, reading of the transcript clearly provide

This statute does a basis of shows that the advised the district peal from almost argument order of However, in the Board. EIRMC’s notice relying statutory appeal. on that *4 appeal, of there is no reference to this showing In the a absence of that the coun- Rather, five, paragraph ty prejudiced by appeal the notice of specifically EIRMC states that it has a being specific, more such a notice will appeal under I.C. 63-2210 not be fatally § held to be defective. Fisher and/or 67-5215. Because EIRMC § v. Board Commrs. Bannock of of include I.C. 31-1509 in its 381, 4 County, Idaho 39 P. 552 appeal notice of appeal, a basis for its showing Because there was no that and further failed to move at the time of county any prejudice by suffered virtue of argument to amend to include I.C. specify failure to 31- statutory this of appeal basis 1509, statutory jurisdiction, as the basis for was waived. we conclude appeal notice of was sufficient. This required The notice when appealing ground refusing jurisdiction over the district court from a decision aby board of appeal from the Board’s decision is re- is addressed in I.C. versed. 31-1510: appeal may Such be taken district II. thereof, or the judicial

district of which part, by is a THE NOTICE OF APPEAL serving upon the clerk of the WAS TIMELY appeal act, notice of referring so The district court ruled that or proceeding appeal order from as to appeal twenty was filed more than identify days Upon it. writing notice in of 14, August after the Board’s decision appeal being brought such by any person timely. was not find this con judge, to the attention of such he shall erroneous, clusion to be time, reverse that fix the earliest place conve- portion himself, deny memorandum decision nient for for the of such ing appeal. appeal, ... filed a request for reconsid- requires

It clear only is that this statute eration of the 14 decision. Under specifies notice written the decision Appellate filing Rule termi- appealed. is being specific No form nated running appeal the time for required, requirement is is and there no original from the decision: statutory appeal that the basis for stated the notice. As this any Court noted time for an civil 585, 593, Udy v. 65 judgment, Cassia order or decree in an action is (1944), 149 P.2d filing timely the law does not terminated mo- which, require an appellant to state the or tion if granted, any reasons could affect grounds fact, in an findings under I.C. 31-1509. conclusions of or grounds A statutory any judgment (except statement of the in the action mo- under either Idaho Rule tions under Rule of the Idaho Rules of 83(f) Appellate Civil Procedure regarding Civil Procedure motions 17; fees), attorneys Rule therefore we find the fact costs or which case judgments, primari- all or- flects that the clerk’s duties are ly decrees commences to run to record the

ders and activities the board— filing stamp perform of the clerk’s the date ministerial duties. It is parent deciding order such motion. from the statute that when a no- Board, tice is received it would be deny- issued its decision When the Board duty of the clerk to make a note or ing request for reconsideration on Au- receipt record such and in ordinary the time for com- gust course events the clerk would become Septem- run. menced to We find aware the notice. It is difficult to filing of the notice of ber any prejudice understand how could re- limit, twenty-day within the time was well mailing sult from a of a notice of finding court’s and reverse itself, instead of to the timely. clerk. Bennion, Application 97 Idaho at III. 554 P.2d at 943. TO THE FAILURE SERVE NOTICE OF present findWe the circumstances in the THE THE APPEAL ON CLERK OF Bennion, squarely point case to be A FATAL BOARD WAS NOT DE- record is also devoid of *5 FECT prejudice respondents showing facts May having by appeal In its memorandum the notice of not been denying motion for reconsidera on the clerk. served Under these circum- tion, stances, Hospi district court held that the the the we conclude that sub- perfect by neglecting stantially complied tal to its the statutory re- quirements of on clerk to serve the notice the of for service of the notice of County peal. dismissing Board of The erred in the Bonneville trial court basis, portion as I.C. the on this and that of denying appeal 31-1510. The Board does claim that the memorandum decision Hospital’s they did not receive notice of the is reversed. decision, only

intent to proper party. on the notice was served IV. however, county on Notice served CODE 63-2203A IDAHO clerk, ex of who officio clerk BE MAY APPLIED 31- of commissioners under I.C. attorney, as well as on the Board’s In initial of the its denial assessor, county county prosecutor, request penalties for a reduction and Board itself. and the members assessed, Board stated that it interest authority allowing legal could find no them on clerk of Whether service Hospital, in to take such an action. The essential county board of commissioners is denial, requesting of that reconsideration from an order of perfection to 63-2203A, relied on been I.C. § by in such board was considered this Court February That stat enacted Bennion, Application 97 Idaho provides ute that: There, we determined that county commissioners require- compliance substantial with that may state of Idaho any county within the ment will suffice—the county tax collector authorize by a technical failure to serve the not lost adjustments penalty, make county commissioners clerk of the board designated and fees not exceed board, when service had been made county com- as set the board limit county attorney, prosecutor. missioners, col- to facilitate the order As we noted in that case: taxes. lection ad valorem duties 31-708 enumerates the I.C. § rule on the proceeding The trial of the board of commis- clerk action, that it would be of the held of this statute re- merits sioners. Examination inappropriate apply parties submitting that statute. Be- with the briefs and the dispute cause the was over taxes for 1989 argument. agree court not enacted and the statute was until appellant’s with the contention that the tri- the trial court felt use of that statute failing al court erred in to conduct a trial application would constitute retroactive de novo as change in of a substantive the law. We pertinent portion of I.C. 31- conclude that the relevant date this mat- provides from a deci ter is the date on which the of county sion a board assessed, interest were which was “the matter must be heard anew and the Because this occurred assessment act, proceeding appealed order or so statutory enactment, after the affirmed, may be reversed or modified ...” holding 63-2203A, court erred in that I.C. § meaning phrase “heard anew” applied in this matter. could predecessors this statute and its has disagree We also with the trial interpreted by require been this Court to holding court’s is not action to be retried the district court 63-2203A, to relief under entitled I.C. § though originally brought in that court. applied directly to the Board for Gardner Blaine 15 Idaho rather than tax collec (1909), 99 P. 826 the Court discussed is, again, hypertechnical appli tor. This proceeding the nature of a in the district cation of the statute. view upon appeal a board of permit that the actions of the tax collector commissioners, holding that: ted under this statute are directed anew,” What is meant “heard as used County Commissioners, Board of it is diffi statute, in this is that the district court respondent cult to see how the could have try though shall the case as originally prejudiced any way by Hospi *6 brought in said and the case going directly must tal’s to the Board with its proven way be the same as before the request. Hospital We hold that the sub (cid:127) board of stantially complied requirements commissioners. The affirma- with the 63-2203A, proof of I.C. tive and burden of is with the that the trial court same holding party. erred in the statute It is a retrial of inapplica to be the case tried ble. before the board of commission- ers.

Because this matter is to re County, Gardner v. Blaine 15 Idaho at manded, opportunity we take this to ex 702-03, 99 P. at Udy 827. See also v. press opinion our that under I.C. 63- 65 Idaho 2203A, County, Cassia 149 P.2d 999 the Board is not required to autho (1944); v. Young, Johnson 53 Idaho 23 rize the tax adjust penalties collector to (1932); Prothero v. Board stating which are assessed. Commrs., 598, 127 22 County P. 175 “may that the Board authorize” such an (1912); Fisher v. adjustment, legisla County it seems Board clear that the 4 ture intended such decisions Commrs. Bannock to be left to 39 the discretion of the Board. The P. 552 fact that statutorily the Board is authorized to make required Because the trial court was adjustments does not mean that failure to anew, hear this matter we remand to the discretion, argued do so is an abuse of as novo, district court for a trial de Hospital. by the Hospital opportunity time will have the present support evidence to their claim

V. County Board of Commissioners should make an THE DISTRICT COURT WAS and interests assessed. REQUIRED TO CONDUCT A TRIAL DE NOVO The function of the district court at the not, however, merely to The district court conducted its trial de novo is appellate procedure, on this an the Board abused its matter as determine whether 910 grant adjust- refusing or the decisions reached an Board of

discretion judicial appropriate County standard Commissioners. ment. in an

review decision was addressed CONCLUSION partial Bakes in his concurrence Justice holdings We reverse the district court’s Cooper County Commrs. Board that it lacked to hear P.2d County, 101 Idaho Ada County from the Board of (1980): Commissioners’ decision, timely, was not had an If the statute “abuse perfected judicial re- standard for of discretion” par- proper failed to serve the view, I affirm unhesitatingly would 63-2203A, ty, appli- and that There is decision of the court. The matter is cable. remanded for trial sustain ample the record to evidence opinion. de novo consistent with this County de- Board of Commissioners’ However, while the district court cision. findings, make de novo ... did some BAKES, C.J., and BISTLINE and whole,

taking appears its as a decision McDEVITT, concur. JJ. though the district court was as conducting appellate type an review. Justice, JOHNSON, dissenting. making have should (The respectfully part I dissent from II own facts and Appeal Timely) Notice of Was opinion zoning unfettered view, opinion. my pursuant Court’s and the Board Commis- twenty I.C. § regard In that sioners below. days within Board’s making, his decision “as They brought in though originally [the district] period. accept within this I cannot court,” proved the facts based trial, evaluating authority evidence to I.A.R. as the extension of but was filing whether or not see below had “abused Appellate Board’s decision. ruling they did. discretion” in appellate govern only proceedings Rules *7 Appeals. in our this Court and Court Cooper v. Board Commrs. of P.2d County, 101 Idaho Ada also 83 as cites I.R.C.P. authority support the of its timeliness matter, in help The district ad- appeal. This rule does not the Board action, held: dressing the merits part: provides, either. The rule question properly the Board whether gov- An from an administrative question of discretion is a exercised its body agency, ernmental or board must developed by no facts fact. There were appropriate district affidavit, testimony or otherwise sworn days after a has been within 42 there Board. Therefore is before the signed by appropriate officer nothing court to review to deter- for this governmental agency administrative fact, an abuse of ifmine there pro- is where no other Accordingly, con- EIRMC’s discretion. vided the Board abused its discre- tention that added). 83(e) (emphasis I.R.C.P. supported record tion is merit. without time on for the first asserts appeal to this Court remand, court is instructed the district On and, therefore, comply with I.C. § make its own hear the matter anew and to I.C. 31- appeal pursuant time for of the facts and the running. Because never commenced presented the evidence regard either

9H preserved in this issue was not address I would not it here. BRENNAN,

Kenneth Petitioner-

Appellant, Idaho, Respondent. STATE of No. 19754. Appeals of Court of Idaho. Oct.