Stephen L. Adams

There are many statutes that deal with attorney fees in cases involving governmental entities. Three examples include Idaho Code § 12-117, which awards attorney fees in any case involving, “as adverse parties a state agency or a political subdivision and a person,”[i] I.C. § 6-918A, which provides for attorney fees in tort claims act cases, and I.C. § 12-121, which provides for attorney fees wherever a case is “pursued or defended frivolously, unreasonably or without foundation.”[ii]

These three statutes are just a few of the attorney fee statutes or sources applying to governmental cases. However, there are many others, such as when a commercial transaction or employment claim is involved,[iii] when there is a constitutional issue in a case,[iv] when there is a public records act claim,[v] or when there is a public bidding challenge.[vi] Despite this, the three statutes identified previously will be the focus of this article.

At first blush, it seems that any or all of these statutes may apply to a case involving a governmental entity. However, Idaho case law is far from clear on this issue. This article discusses how these statutes operate, the Idaho Supreme Court’s repeated insistence that certain of these statutes are the exclusive source of attorney fees, the history of this exclusivity case law, and how to address it.

Application of Attorney Fee Statutes

Idaho Code §§ 12-117, 12-121, and 6-918A are fairly common attorney fee statutes that apply in lawsuits against governmental entities (outside of federal claims).[vii] They each apply in slightly different circumstances.

When a tort claim is brought against a governmental entity, the primary attorney fee statute is I.C. § 6-918A, which states, “[a]t the time and in the manner provided for fixing costs in civil actions, and at the discretion of the trial court, appropriate and reasonable attorney fees may be awarded to the claimant, the governmental entity or the employee of such governmental entity, as costs, in actions under this act, upon petition therefor and a showing, by clear and convincing evidence, that the party against whom or which such award is sought was guilty of bad faith in the commencement, conduct, maintenance or defense of the action.”[viii]

This language suggests a number of factors related to the application of this statute. First, it applies in tort act claims. Second, the award of attorney fees is discretionary, and not mandatory.[ix] However, this discretion appears to be intertwined with the third factor, which is that attorney fees may only be awarded under this statute if there is a finding by the trial court of bad faith by clear and convincing evidence. “The standard in section 6-918A is a high bar[.]”[x] “Bad faith is defined as dishonesty in belief or purpose.”[xi] Thus, the trial court may exercise its discretion to award attorney fees only after it has found a party acted in bad faith.

In contrast, I.C. § 12-117 has a more general application. “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.”[xii]

Based on this language, this statute applies to any case involving, as parties, agency/subdivision and a person, and is not based on the nature of the action. Unlike I.C. § 6-918A, it is mandatory, as it contains the word “shall.”[xiii] Thus, there is no discretion about whether fees are awarded under the statute. However, “I.C. § 12–117 requires a losing party to have acted frivolously or without foundation before fees may be awarded.”[xiv] The decision as to whether a party acted frivolously or without foundation appears to be discretionary.[xv]

Finally, under I.C. § 12-121, “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.”[xvi]

This language applies to any civil case, regardless of the parties or the nature of the action. Unlike I.C. § 12-117, the award is discretionary. However, like I.C. § 12-117, that discretion is bound by the requirement that the case be brought or defended frivolously or without foundation. Without going into the plethora of cases that explain this language, a simple way of looking at this statute is, “Where questions of law are raised, attorney fees should be awarded under I.C. § 12–121 only if the nonprevailing party advocates a plainly fallacious, and, therefore, not fairly debatable, position.”[xvii] Stated another way, “When deciding whether attorney fees should be awarded under [§] 12-121, the entire course of the litigation must be taken into account and if there is at least one legitimate issue presented, attorney fees may not be awarded even though the losing party has asserted other factual or legal claims that are frivolous, unreasonable, or without foundation.”[xviii]

As with all attorney fee situations, the availability of attorney fee awards is taken from the perspective of the American Rule, “which requires a party requesting attorney fees on appeal to cite either statutory or contractual authority in support.”[xix] As a result, awards of attorney fees are often a matter of statutory interpretation.[xx] In other words, attorney fees are not a matter of right in Idaho and should be hard to get.

Attorney fees may be exclusively available under only one statute

Even if attorney fees should be hard to get, the situation need not be as confusing as it is. Idaho’s appellate courts have not made it easy to figure out which statute parties may rely on. In a 2013 article about this exact same issue, it was pointed out that Idaho case law is extremely confusing as to whether any particular attorney fee statute is exclusive in a given situation.[xxi] The article noted numerous cases between 1996 and 2013 holding that I.C.§ 6-918A was exclusive where it applied, and numerous cases holding that I.C. § 12-117 was exclusive where it applied.[xxii] During the same time period, there were at least eight other cases involving governmental entities where the exclusivity of these statutes was not noted, and fees were awarded under other statutes.[xxiii] Consequently, it was difficult to know which fee statute applied when a governmental entity was involved in a lawsuit.

The situation has not gotten any clearer since then. In 2013, the Supreme Court seemed to make some headway as to the whether attorney fee statutes are exclusive when a governmental entity is involved, stating in Syringa Networks, “we hold that section 12–117(1) is not the exclusive basis upon which to seek an award of attorney fees against a state agency or political subdivision, but attorney fees may be awarded under any other statute that expressly applies to a state agency or political subdivision, such as sections 12–120(3) and 12–121.”[xxiv] This language was upheld a year later in an April 2014 opinion.[xxv]

However, in a June 2014 opinion, the Supreme Court went into detail about the exclusivity between I.C. §§ 12-117 and 6-918A, and held that 6-918A is exclusive where it applies.[xxvi] The Supreme Court followed this up with two 2020 opinions further confusing this matter, holding that “section 12-121 is not applicable because section 12-117 is the exclusive means for awarding attorney fees for the entities to which it applies.”[xxvii] Thus, if there ever was clarity on the issue of exclusivity, it has sunk again into a quagmire of conflicting opinions.

A brief history of statutory exclusivity

As discussed, attorney fees are only available if there is a statute that provides for them. Thus, application of attorney fee statutes should turn on interpretation of the statutory language. In looking at these three statutes, the only one of them that utilizes the word “exclusive” in any form is I.C. § 6-918A, which states, “[t]he right to recover attorney fees in legal actions for money damages that come within the purview of this act shall be governed exclusively by the provisions of this act and not by any other statute or rule of court, except as may be hereafter expressly and specifically provided or authorized by duly enacted statute of the state of Idaho.”[xxviii] Neither I.C. § 12-117 or 12-121 mention exclusivity. Therefore, how and why have courts interpreted these statutes as exclusive?

As far as the author can tell, the first case discussing exclusivity of fees is Camp v. Jiminez, a 1984 case in which the Idaho Court of Appeals noted that I.C. § 12-121 was not exclusive of other potentially applicable statutes.[xxix] The Court utilized similar language in 1988 when it found that I.C. § 32-704(2) was not the exclusive source of attorney fees in a divorce action, and that “I.C. § 12–121 applies to all civil actions.”[xxx] In other words, neither of these two cases held that a fee statute was exclusive.

The first case where a fee statute was held to be exclusive was the 1989 case Kent v. Pence, where the Court of Appeals noted that I.C. § 6-918A was exclusive as to cases involving the Tort Claims Act.[xxxi] This analysis was based on the language of § 6-918A which, as noted previously, states that the statute is exclusive. Kent, oddly, relies on language from Packard v. Joint Sch. Dist. No. 171, a 1983 case which does not discuss exclusivity, and even analyzes both §§ 6-918A and 12-121.[xxxii] Regardless, Kent appears to be the first case discussing statutory exclusivity.

After Kent, in Tomich v. City of Pocatello, the Idaho Supreme Court again discussed exclusivity of § 6-918A over § 12-121, noting that § 6-918A is both the later and more specific statute, and therefore it applies when there is a conflict.[xxxiii] In applying these canons of construction, the Supreme Court did not actually state that a conflict occurred; it merely decided to apply § 6-918A as the relevant fee statute.

The exclusivity issue appears to have jumped to I.C. § 12-117, like a contagious disease, for the first time in 1996. In Roe v. Harris, the Idaho Supreme Court discussed the “interplay between I.C. § 12–117 and the private attorney general doctrine.”[xxxiv] After substantial discussion about prior caselaw discussing exclusivity, the Supreme Court again turned to the canon of construction that new and more specific statutes control when there is a conflict.[xxxv] In doing so, the Court found a conflict in the language of § 12-117 and the attorney general doctrine (which it compared to I.C. § 12-121) because the two statutes were different in how attorney fees were awarded (“the private attorney general doctrine considers the value of the prevailing party’s contribution, while I.C. § 12–117 considers the character of the losing party’s case.”).[xxxvi] However, they did not note that the actual language of § 12-117 and 12-121 conflicted; only that they were different.

This brings us to State v. Hagerman Water Right Owners, Inc. (HWRO), a 1997 case which appears to be the genesis of most exclusivity language in later cases discussing attorney fee statutes. In that case, it simply says, “I.C. § 12–117 provides the exclusive basis of an award of attorney fees against a state agency.”[xxxvii] Hagerman relies on Roe v. Harris for this analysis and does not include any discussion of conflict between statutes.

There is no need for attorney fee statutes to be exclusive

Neither the statutory language nor the historical case law justifies the rampant and confusing rulings discussing exclusivity of attorney fee statutes in governmental entity cases. Exclusivity with regards to I.C. § 6-918A makes sense, as the statute clearly says that it is exclusive where it applies. However, neither I.C. § 12-121 nor § 12-117 contain language mandating exclusivity. To the extent that exclusivity has arisen out of the context of a “conflict” between statutes, only Roe discusses a conflict, and that conflict is based on a statute (§ 12-117) and a common law attorney fee doctrine. There was no actual statutory language discussed which was shown to conflict.

In reviewing these three attorney fee statutes, they do not conflict; instead, they all do the same thing, but in different ways. As noted, awards under I.C. § 12-117 are mandatory where they apply, whereas awards under I.C. § 12-121 are discretionary. However, both require a similar analysis as to the level of conduct necessary to support an award. There is nothing in either statute that suggests the legislature intended one to apply over the other. Indeed, I.C. § 12-117 begins with, “[u]nless otherwise provided by statute,”[xxxviii] which suggests that it may be intended to give way to other statutes. Regardless, there is nothing in these two statutes that indicates a judge cannot analyze both separately to determine whether attorney fees are available under both, either, or neither.

Frankly, the entire discussion of exclusivity of attorney fee statutes appears to be based on a misapplication of Roe. Roe, in turn, seems to misapply the “later in time” and “more specific” canons of construction. These canons only apply if statutes cannot be reconciled.[xxxix] Roe provided no explanation of the conflict and does not appear to have attempted to reconcile the two statutes. Based on their plain language, I.C. § 12-117 and I.C. § 12-121 could both be applied to a given case, and one or both may allow for an award of fees. Nothing about this constitutes a conflict. Further, to the extent that Hagerman (and ostensibly Roe) was abrogated by Syringa Networks,[xl] there is no reason why the Supreme Court shortly jumped back to interpreting attorney fee statutes as exclusive without mentioning Syringa. As a result, there appears to be directly conflicting case law, without any logical reason as to why the conflict exists.

Possible steps to ask for attorney fees

Realistically, clearing up this matter is in the hands of Idaho’s appellate courts or the legislature. However, as a practical matter, when it is impossible to determine which statute is the exclusive attorney fee statute, or whether there is even an exclusive attorney fee statute, a practitioner should make arguments under every potentially applicable statute. As demonstrated, the legal standards to various statutes are not identical, but they are similar enough that making multiple arguments should not create substantial extra work. Then, because it is unclear which statute may apply, the practitioner should ask the court for findings under each potential statute. This way, even if the matter is appealed, the trial court will have addressed all potential statutes, and the matter is less likely to be remanded for additional findings. In other words, until the Supreme Court clears this issue up, a shotgun approach, which is not usually the best approach for an argument, may be ideal.

Stephen L. Adams is an attorney with Gjording Fouser, PLLC in Boise. He is a member of the Government & Public Sector Lawyers Section and is on the boards of the Appellate Practice Section and the Idaho Association of Defense Counsel. He also is happily married to a lovely wife and has four kids. He has defended school districts, hospitals, cities, insurance companies, and lots and lots of individuals. Needless to say, he’s tired all the time.

[i] Idaho Code § 12-117(1).

[ii]  Idaho Code. § 12-121.

[iii] See  Idaho Code § 12-120(3).

[iv] See 42 U.S.C. § 1988.

[v] See Idaho Code § 74-116.

[vi] See Idaho Code § 67-2809(2)(e).

[vii] Though, as discussed, there are many other statutes that apply to specific circumstances.

[viii] Idaho Code § 6-918A.

[ix] “This Court has interpreted the meaning of the word ‘may’ appearing in legislation, as having the meaning or expressing the right to exercise discretion.” Rife v. Long, 127 Idaho 841, 848, 908 P.2d 143, 150 (1995).

[x] Hollingsworth v. Thompson, 168 Idaho 13, 24, 478 P.3d 312, 323 (2020).

[xi] Renzo v. Idaho State Dep’t of Agr., 149 Idaho 777, 781, 241 P.3d 950, 954 (2010).

[xii] I.C. § 12-117(1).

[xiii] Rife, 127 Idaho at 848, 908 P.2d at 150. See also Univ. of Utah Hosp. v. Ada Cnty. Bd. of Comm’rs, 143 Idaho 808, 812, 153 P.3d 1154, 1158 (2007) (“The statute is mandatory and we will award attorney fees to the providers if the County did not act with a reasonable basis in fact or law.”).

[xiv] City of Osburn v. Randel, 152 Idaho 906, 910, 277 P.3d 353, 357 (2012).

[xv] Id.

[xvi] I.C. § 12-121.

[xvii] Lowery v. Bd. of Cnty. Comm’rs for Ada Cnty., 115 Idaho 64, 69, 764 P.2d 431, 436 (Ct. App. 1988).

[xviii] Robirds v. Robirds, 169 Idaho 596, 611, 499 P.3d 431, 446 (2021).

[xix] Mortensen v. Stewart Title Guar. Co., 149 Idaho 437, 447–48, 235 P.3d 387, 397–98 (2010).

[xx] Med. Recovery Servs., LLC v. Lopez, 163 Idaho 281, 282–83, 411 P.3d 1182, 1183–84 (2018) (“However, when an award of attorney fees depends on the interpretation of a statute, the standard of review for statutory interpretation applies.”).

[xxi] Stephen Adams, “An Update on Attorney Fees in Cases Involving Governmental Entities”, 56 Advocate 60, 60–61 (2013).

[xxii] Id. at 61 (n. 15).

[xxiii] Id. at 61 (n. 16).

[xxiv] Syringa Networks, LLC v. Idaho Dep’t of Admin., 155 Idaho 55, 67, 305 P.3d 499, 511 (2013)..

[xxv] See Sanders v. Bd. of Trustees of Mountain Home Sch. Dist. No. 193, 156 Idaho 269, 272–73, 322 P.3d 1002, 1005–06 (2014) (relying on Syring Networks to award attorney fees under Idaho Code § 12-120(3)).

[xxvi] Block v. City of Lewiston, 156 Idaho 484, 490, 328 P.3d 464, 470 (2014).

[xxvii] Dep’t of Env’t Quality v. Gibson, 166 Idaho 424, 447, 461 P.3d 706, 729 (2020), reh’g denied (May 7, 2020). See also Lingnaw v. Lumpkin, 167 Idaho 600, 609–10, 474 P.3d 274, 283–84 (2020) (discussing exclusivity of §§ 12-117 and 12-121).

[xxviii] I.C. § 6-918A.

[xxix] Camp v. Jiminez, 107 Idaho 878, 884, 693 P.2d 1080, 1086 (Ct. App. 1984).

[xxx] Hentges v. Hentges, 115 Idaho 192, 197, 765 P.2d 1094, 1099 (Ct. App. 1988).

[xxxi] Kent v. Pence, 116 Idaho 22, 22–23, 773 P.2d 290, 290–91 (Ct. App. 1989).

[xxxii] Packard v. Joint Sch. Dist. No. 171, 104 Idaho 604, 614, 661 P.2d 770, 780 (Ct. App. 1983).

[xxxiii] Tomich v. City of Pocatello, 127 Idaho 394, 400, 901 P.2d 501, 507 (1995).

[xxxiv] Roe v. Harris, 128 Idaho 569, 572, 917 P.2d 403, 406 (1996), abrogated by Rincover v. State, Dep’t of Fin., Sec. Bureau, 132 Idaho 547, 976 P.2d 473 (1999).

[xxxv] Id. at 572–73, 917 P.2d at 406–07.

[xxxvi] Id. at 573, 917 P.2d at 407.

[xxxvii] State v. Hagerman Water Right Owners, Inc. (HWRO), 130 Idaho 718, 726, 947 P.2d 391, 399 (1997), abrogated by Syringa Networks, LLC,155 Idaho 55, 305 P.3d 499.

[xxxviii] I.C. § 12-117(1).

[xxxix] Hyde v. Fisher, 143 Idaho 782, 786, 152 P.3d 653, 657 (Ct. App. 2007). See also 73 Am. Jur. 2d Statutes § 161.

[xl] Syringa Networks, LLC,155 Idaho at 67, 305 P.3d at 511.