The Federal Bar Association invites you to join us as Chief U.S. District Judge David C. Nye, Chief U.S. Bankruptcy Judge Joseph M. Meier, Chief U.S. Magistrate Judge Ronald E. Bush and Clerk of the Court Stephen W. Kenyon describe preparations and actions, which they took in response to the coronavirus pandemic. They will share the precautions the court will be taking as it begins to gradually return to pre-pandemic operations. The panelists will be also be available to answer your questions on the measures that will be taken to ensure the health and safety of all courthouse users.
For more information: Brown Bag CLE: The Federal Court’s Coronavirus Response – June 4
By John McGown, Jr.
Reprinted from Tax Notes State, January 27, 2020, p. 349
Chairman Tom Harris has been at the Idaho State Tax Commission since May 2019, and he’s still learning how the agency works. He’s a quick study, but he already had the knowledge and experience Gov. Brad Little (R) wanted.
“When the governor’s office asked me to be the chairman, I told them I wasn’t a tax guy,” the retired Western States Equipment president said. “They told me they weren’t looking for a tax guy, and that’s what they got.”
It turns out Harris’s lack of tax expertise hasn’t been a problem. His own skill set more than makes up for it.
“I know how to run a large organization – a complex organization – and there are a lot of similarities between the tax commission and Western States,” Harris said. “We had five businesses under one roof that you had to wrangle and keep harmony in. And the tax commission is much the same. There’s a lot going on, and you have to keep all the pieces in mesh.”
Little appointed him in part because the Governor’s Office and the Legislature had lacked confidence in the tax commission. However, Harris was pleased by what he found when he started the job. “I thought the agency was going to be in disarray, and I expected a lot of dysfunction here. But what I found was hundreds of dedicated people that work hard for the state of Idaho and do the right thing every day.”
Harris came to realize that communication was the biggest problem.
“If the reality is, we’re in pretty good shape but the perception is something different, we have a communication gap. We’re trying to work on the communication to the Governor’s Office. We’ve been much more connected to them and keep them apprised of what we’re doing. We’re also working to keep the Legislature up to speed.”
Harris said several changes to the commission’s organizational structure in recent years have improved the agency. They included separating the audit division from the collection unit and appeals from tax policy. Commissioners created the Taxpayer Resources Unit to improve communications, customer service, and stakeholder relations.
“The changes were made to better serve the taxpayer and to remove the perceived conflicts within the organization,” Harris said. “A lot of pieces were put in place that I get to take advantage of that somebody else did. I can’t take any credit for it.”
Commission stakeholders generally seem to like the agency’s customer service improvements. Respondents to fall 2019 surveys of taxpayers, tax practitioners, local elected and taxing district officials, and state elected officials – primarily legislators – gave the commission high marks for being courteous, knowledgeable and fair. Understanding the agency’s information remains a relative sore spot, with favorable responses ranging from 52 percent to 31 percent.
Harris said making it easier for people to understand the tax commission’s letters, forms, instructions, and other communications is a goal of stepped-up efforts to install “plain talk” skills through more staff training.
Separating Appeals and Operations
Unlike many states that have a director managing their revenue department, Idaho has four commissioners. “I’ve never seen an organization that could have four leaders and be effective,” Harris said. “This agency is a little bit unique. My personal view is probably one person running the agency would be a good idea.”
Little agrees, and recently authorized Harris to restructure the tax commission’s executive administration. Changes effective January 1, 2020, include separating the agency’s appellate functions under the four commissioners, and the chair appointing a director to oversee tax operations, including revenue operations, collections, audit, property tax, and taxpayer resources.
The agency’s existing appeals division, including its legal and administrative personnel, supports the commissioners in hearing appeals and overseeing settlement meetings, and when they sit as the state Board of Equalization, hearing disputes over county property tax valuations. Commissioners continue to have authority over approving the agency’s legislative proposals and rules governing administration to tax laws. Harris continues to lead day-to-day operations during the search for a director, which he said could take several months.
The state’s Board of Tax Appeals – already a separate entity – remains in place to hear appeals from tax commission appellate decisions. Some challenges can continue straight to district court.
Harris noted that nowhere else in Idaho’s state government is any agency led by a board or commission alone without a director who’s immediately responsible for operations. The tax commission and its predecessors in administering Idaho’s evolving tax structure have seen many changes over almost 130 years of state history. The latest restructuring will have no impact on taxpayers or most of the agency’s employees.
“Our goal is to address concerns about potential or perceived conflicts of interest between operational functions and cases on appeal,” Harris said. “At the same time, we’re empowering our leadership team of division administrators and department heads to more efficiently and effectively manage daily business with a single point of oversight.”
Beyond the mechanics of restructuring, Harris is working to make the entire agency more strategic. “At Western States, developing and executing strategy was the center of everything we did. I’m trying to bring that to the tax commission.”
Before Harris came aboard, the strategic planning process was largely a required paperwork exercise that didn’t have much impact on the commission’s day-to-day operations. One of his first tasks as chair was to guide the agency’s leadership team through a more robust and meaningful strategic planning process targeting such weaknesses as stakeholder support and recruiting and retaining talent while leveraging such strengths as operational efficiency and use of technology. “We’ve drawn a road map of where we’re going. We have action items that are in line with that strategy,” he said.
One of those action items is improving relationships with stakeholders, from tax professionals to legislators. Before Harris came aboard, the tax commission was dealing with the political fallout from delays in the state’s receipt of income tax withholding revenue in the wake of sweeping federal and state tax reforms. That left lawmakers concerned about the impact on the fiscal 2020 budget.
“Nobody really knew what the withholding revenue would be. But we got most of the money back when people filed their tax returns,” Harris said. “The latest income tax numbers are ahead of the forecast, so it’s starting to turn around.”
As he was learning about that issue, the commission was implementing a new law requiring some out-of-state retailers and marketplace facilitators to collect Idaho sales tax. The state expected to collect about $31 million from those businesses during the first fiscal year in a special tax relief fund, but almost $29 million came in through the first five months alone.
Looking to the Future
Harris said the commission’s biggest challenge going forward is providing more services, with the same or fewer resources, for a growing population of taxpayers. “We realize that we’re going to keep the same number of employees even as the state gets bigger and we process more tax returns and money,” he said. “That means we need to leverage our technology to get more out of it, and we need to work on more process improvement.”
Harris also sees a tide of retirements changing the tax commission leadership team significantly in the next few years. “When we interview replacements, we’re looking for the soft skills of a leader first, and then the technical skills,” he said. “Everybody who’s been selected recently and going forward — they’re going to be great leaders. Leaders can get people to follow, and leaders can explain the mission of the organization and what we’re trying to do and get people to align with that.”
He’s counting on the expertise of his staff to ensure the agency’s future success. “There are people who’ve been in this business 30 years. I have a lot of resources to get up to speed,” Harris said. “The people at the Idaho State Tax Commission are dedicated to serving the taxpayers of the state. I’ve been really blessed to be given this team.”
John McGown, Jr. is Of Counsel at Hawley Troxell where he focuses on tax, estate planning, and tax-exempt entities. John authored “Tax Thoughts” for The Advocate for 19 years. He was named a Distinguished Lawyer by the Idaho State Bar in 2014. In his spare time, John enjoys being active outdoors and has completed 17 Races to Robie Creek (toughest half marathon in the West) and reached the Summits of Mt. Borah, Idaho’s highest point, and McGown Peak.
By the Idaho Associations of Defense Counsel Staff
“Jack Gjording has a true love of the law.” “He pours his all into every case; he truly enjoys working up cases and preparing the best litigation strategy possible for his clients.” Quotes from the young attorney who nominated Jack for the Idaho Association of Defense Counsel’s (IADC) first Carl P. Burke Award of Excellence in Legal Defense. That attorney went on to comment that when litigation occasionally presents an attorney with a choice to take the high road or a lower road, without fail, Jack chooses the high road. Powerful words to accurately describe a true professional and asset to Idaho’s legal community; one of two recipients of IADC’s Carl Burke Award.
As a civil defense attorney, Jack has represented defendants in well over 100 civil jury trials. Jack has tried every civil cause of action that can go to a jury. Most trial lawyers stay in their comfort zone, but Jack really doesn’t mind venturing into lawsuits most of us have never heard about. He also is liked by most lawyers on the other side! Jack doesn’t enjoy the wins more than he mourns the losses. After each trial, he just says, “What’s next.” That’s all. He doesn’t brag and he doesn’t beat himself up.
In addition to being a talented trial attorney, Jack truly cares about sharing his experience and knowledge with less experienced colleagues. His door is always open and he willingly spends countless hours working with them on deposition or trial preparation, even if he is not working on the case.
Jack has been a long-time member of IADC and DRI. Jack is an Advocate of the American Board of Trial Advocates (ABOTA) and, like Carl Burke, a Fellow of the American College of Trial Lawyers.
Jack and Trudy have been married for 27 years and he has 8 grandchildren ranging in ages from 22 down to 1 1/2. He sees each one as perfect and with them “yes” is his favorite word! The entire family does wonder, though, why with his large family, are all his screen savers and pictures of his Golden Doodle, Zena! Jack loves to travel and occasionally play golf.
The other recipient of IADC’s Carl P. Burke Award is Richard E. Hall. This year, Rich is celebrating his 50th year as an Idaho attorney. During those 50 years, Rich has earned the reputation as one of Idaho’s legal legends and is widely recognized as one of the best civil defense attorneys in Idaho’s history. Throughout his years of practice, Rich devoted much of his career to defending physicians across the state and has a near-perfect record in doing so. He was recognized by Chambers (USA) as “the best medical malpractice attorney in Idaho – if not beyond.” Known for his incredible presence before juries, Rich commanded the courtroom with an exceptional knowledge of medicine, a gentlemanly and civil nature, and a quick wit.
In addition to Rich’s numerous successes in the courtroom, Rich, like his mentors Chuck Blanton and Dick Fields, is a devoted mentor. Rich was never shy to have a newer attorney handle an oral argument, deposition, or trial witness. In fact, he was notorious for turning to his second chairs during trial and deciding on the fly that his second chair was going to handle the cross-examination of the testifying witness – a horrifying and thrilling moment for all who had the privilege of trying a case with Rich. Rich also has an impressive track record of having his mentees promoted to the bench, with the Honorable Candy Dale serving as Idaho’s first female federal Magistrate Judge and with Judge Steve Hippler serving as a District Judge in Ada County.
Rich is also known for his sense of humor and for his ability to talk to anyone about anything. As Keely Duke knows, having been a dear friend and attorney with Rich for the last 20 years, “there is never a lonely person at a party Rich attends because Rich will quickly make any stranger feel a part of the moment and have them laughing by the night’s end.”
An integral part of Rich’s success is the support of his wife of 53 years, Tonya. She is as well-known as Rich in the organizations Rich belongs to and is a much-loved unofficial member of Idaho’s legal bar. Rich and Tonya have four beautiful daughters and six grandchildren.
Rich is a past President of the Idaho Association of Defense Counsel and, among his numerous other honors, is a Fellow of the International Academy of Trial Lawyers, Fellow of the American College of Trial Lawyers, and Member of the American Board of Trial Advocates. In addition, Rich’s unwavering commitment to professionalism and civility was recently recognized by Concordia University School of Law when he was awarded the Richard C. Fields Civility Award in 2017.
From his childhood in Mountain Home, to law school at Harvard, to 50-years as a civil defense attorney in Idaho, Rich is not just a “legend in his own mind” – a classic Rich saying – but a legal legend in Idaho.
As stated by IADC’s current president, Robert A. Anderson, “The Carl P. Burke Award of Excellence was designed to recognize those attorneys who possess not only the legal skills to successfully navigate the courtroom, but, also the true civility and ethical standards necessary to make the practice of law the respected profession it should be. Both Jack and Rich clearly exemplify these characteristics and it has been a pleasure to know and learn from them both over the years.”
Founded in 1964, the Idaho Association of Defense Counsel (IADC) promotes the highest professional and ethical standards for Idaho’s civil defense and business attorneys. The IADC serves its members through education, recognition, collegiality, and professional development.
By Fred G. Zundel
Assume the following facts. John is an enrolled member of an Idaho Tribe. Jane is not a person of Native American descent and is not a member of any Tribe. The parties are the parents of two minor children. The children are enrolled members of John’s Tribe.
John and Jane were married in 2005 within the exterior boundaries of John’s Tribal Reservation and resided within the boundaries of the Reservation until their separation in 2015. Jane relocated to a home off the Reservation that was 30 miles from John’s home on the Reservation. In January 2016, John filed for divorce in Tribal Court. John’s Petition dealt with all relevant matters pertaining to a divorce action, including custody, child support, and division of property and debts.
John and Jane signed, dated, and filed a settlement agreement for final resolution of all matters regarding their divorce action in Tribal Court. The parties agreed that jurisdiction was proper based on the Tribe’s Law and Order Code and thereby submitted to personal jurisdiction and subject matter jurisdiction within Tribal Court, including subject matter jurisdiction over child custody and child support. They agreed to joint legal custody and primary physical custody of the children for John with reasonable visitation rights for Jane.
Shortly thereafter, the Tribal Court issued its Decree of Divorce, which incorporated all of the terms and provisions of the settlement agreement. The Tribal Court noted that pursuant to its Tribal Code, it could at any time modify the Decree.
Four years later, Jane filed a Petition for Modification in State Court in the county where she was living, which adjoined John’s Reservation. She requested that the Court award her primary physical custody of the children and modify child support accordingly. Pursuant to Idaho’s Uniform Child Custody Jurisdiction and Enforcement Act at Idaho Code § 32-11-209(a), Jane identified the court, case number, and date of the Tribal Court’s child custody determination and thereby alerted the State Court to the Tribal Court’s original jurisdiction of the divorce case and of potential jurisdictional issues regarding her modification case.
Shortly after being served with Jane’s Petition, John filed his own Motion to Modify in Tribal Court and requested that the Court keep in place the custody provisions in the Decree of Divorce but modify child support due to the changed employment of the parties. John and Jane each retained counsel to stay their respective cases until the jurisdictional issues could be resolved.
John and the two children have lived on the Reservation their entire lives. Jane had resided on the Reservation during their marriage but had moved off the Reservation shortly after the divorce. The children have been attending school and receiving medical services on the Reservation their entire lives.
The distance between the Tribal Court and the County Courthouse is approximately 30 miles. Virtually all of John’s witnesses that he would call reside on the Reservation, and virtually all of Jane’s witnesses reside off the Reservation but nearby.
John would argue that since the Tribal Court is aware of the history of the parties and the children, any modification issues could be expeditiously dealt with in Tribal Court, and that the Tribal Court would have the procedures in place necessary to present any evidence in that case. John believes that Tribal Court would be able to deal adequately with the issues raised in Jane’s Petition for Modification and in John’s Motion to Modify and that Jane’s State Cort should be dismissed. Jane would argue that State Court has subject matter jurisdiction to modify the Tribal Decree as to custody and child support and that she should be allowed to proceed in State Court.
Continuing, Exclusive Jurisdiction
Idaho’s Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) found at Idaho Code § 32-11-202(a) reads as follows:
- Except as otherwise provided in section 32-11-204, Idaho Code, a court of this state which has made a child custody determination consistent with section 32-11-201 or 32-11-230, Idaho Code, has exclusive, continuing jurisdiction over the determination until:
- A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training and personal relationships; or
- A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
- A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 32-11-201, Idaho Code.
Idaho Code § 32-11-203 provides as follows:
- Except as otherwise provided in section 32-11-204, Idaho Code [for temporary emergency jurisdiction], a court of this state may not modify a child custody determination made by a court of another state unless a court of this state had jurisdiction to make an initial determination under section 32-11-201(a)(1) or (2), Idaho Code, and
- The court of the other state determines it no longer has exclusive, continuing jurisdiction under section 32-11-202, Idaho Code, or that a court of this state would be a more convenient forum under section 32-11-207, Idaho Code; or
- A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.
If John’s Tribe were a sister state within the United States, then the language of these two sections would conclusively support the claim that Tribal Court has exclusive, continuing jurisdiction over the parties’ tribal divorce action given the foregoing facts. A State Court would have no jurisdiction to modify the Tribal Court Decree. Although Jane has moved off the reservation, John and the children have continued to reside on the Reservation.
John and the children have a significant connection with the Reservation. Since John has been providing primary care for the children, there is substantial evidence available on the Reservation concerning the children’s care, protection, training, and personal relationships. To hold otherwise, the Tribal Court would have to determine it no longer has exclusive, continuing jurisdiction or that the State of Idaho would be a more convenient forum. Therefore, pursuant to the UCCJEA, the State of Idaho would have no jurisdiction to modify the Tribal Court Decree.
However, since no Idaho Tribe is a sister state, the issue becomes whether the provisions of the UCCJEA apply to the Tribal Court Decree. In deciding on the final language of the UCCJEA, the Idaho legislature chose not to include the model language proposed by the National Conference of Commissioners on Uniform State Laws that would have provided that “[a] court of this State shall treat a tribe as if it were a State of the United States for the purpose of applying [Articles] 1 and 2.”
Section 104 (Application to Indian Tribes) of the Uniform Child-Custody Jurisdiction and Enforcement Act (1997) was provided to each state for consideration in drafting their own state version of the UCCJEA[i]. Since the Idaho Legislature did not adopt this language, an Idaho State Court is not required to treat an Idaho Tribe as a sister state in applying Idaho’s UCCJEA modification provisions.
However, this does not mean that a state court cannot apply the public policy and purpose of the foregoing sections regarding continuing, exclusive jurisdiction and jurisdiction to modify in the instant case. Section 101 of the model Act recites the main purposes of the language proposed for each state’s UCCJEA as follows:
- Avoid jurisdictional competition and conflict with courts of other States in matters of child custody which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being;
- Promote cooperation with the courts of other States to the end that a custody decree is rendered in that State which can best decide the case in the interest of the child;
- Discourage the use of the interstate system for continuing controversies over child custody;
- Deter abductions of children;
- Avoid relitigation of custody decisions of other States in this State;
- Facilitate the enforcement of custody decrees of other States;[ii]
Since John has filed his own Motion to Modify in Tribal Court, allowing Jane to proceed with her state court modification action could cause jurisdictional competition and conflict with the Tribal Court and have a harmful effect on the well-being of the children. The Tribal Court is arguably in the best position to decide the best interest of the children. If the State Court were to proceed to a state modification decree and John were to proceed to a tribal modification decree, there would be competing modification decrees that could result in competing enforcement of these decrees.
Further, Idaho’s UCCJEA clearly favors the “home state” of a child in making child custody decisions.[iii] The “home state” of a child is that state where the child last lived for at least six consecutive months immediately before the commencement of a child custody proceeding. Although an Idaho Tribe is not regarded as a sister state, it is to be treated as an independent sovereign nation.
Since the children have always lived on the Reservation, the Reservation by analogy has always been the “home state” of the children, and the State of Idaho has never been the “home state” of the child. The public policy favoring the “home state” to resolve child custody matters would, therefore, favor the state court declining jurisdiction to modify the Tribal Court Decree and insisting that any modification take place on the Reservation.
Comity, Self-Government, and Exhaustion of Tribal Court Remedies
Although an Idaho Tribe is not to be regarded as a state for the purpose of applying the UCCJEA, it is important to note the recognized tribal sovereignty of an Idaho Tribe. “The history of tribal self-government forms the basis for the exercise of modern powers. Indian tribes have consistently been recognized, first by the European Nations and later by the United States, as single ‘distinct, independent political communities’, qualified to exercise the power of self-government, not by virtue of any delegation of powers, but rather by reason of their original tribal sovereignty.”[iv]
“The tribes began their relationship with the federal government with the sovereign powers of independent nations. They came under the authority of the United States through treaties and agreements between tribes and the federal government and through the assertion of the authority by the United States. … But from the beginning, the United States permitted, then protected, continued internal tribal government. In doing so, the United States applied a general principle of international law to the particular situation of the Indians. The established tradition of tribal independence within a tribe’s territory has survived the admission of new states, citizenship of the Indians, and other changes in American life. Today courts consider the backdrop of tribal sovereignty in addressing federal Indian law issues.”[v]
Although in the early 1800’s the United State Supreme Court established the relationship between the federal government and the tribes as a guardian-ward relationship, that “did not abolish preexisting tribal powers or make the tribe dependent on federal law for their powers of self-government… Tribes remained states with powers of self-government, despite coming under federal power.”[vi] “Congressional legislation designed to establish cooperative programs with state and local governments has expressly included Indian tribes as participating governments…. Thus, Indian tribes are recognized by Congress as modern governments dealing with modern problems.”[vii]
“Most Indian nations operate their own court systems and, except to the extent demanded by the Indian Civil Rights Act, the structure and procedure of the courts may be determined by the tribes themselves…. Tribal courts’ jurisdiction to adjudicate matters arising in Indian counties is broad, encompassing all civil and criminal matters absent limitations imposed by lawful federal authority. In that sense, tribal courts are more like state courts of general jurisdiction than like federal courts.” [viii]
One accommodation to the relation between Tribal Courts and State Courts was Public Law 280.[ix] In 1953, Congress enacted this statute that delegated to initially five states and then to any other state the option of accepting jurisdiction over most crimes and many civil matters. With tribal consent, Idaho accepted jurisdiction over seven subject areas, including domestic relations, which is codified at Idaho Code § 67-5101-5103 et. seq.
“…, [T]he primary purpose of Public Law 280 was to improve law enforcement within Indian country, which suggests that Congress would not want to eliminate any functioning or potentially effective criminal jurisdiction. Federal policy since the passage of Public Law 208 has only reinforced this reading of congressional intent, as Congress has weighed in heavily in favor to tribal self-government and tribal court development.”[x] “The consensus about concurrent tribal and state jurisdiction under Public Law 280 has developed relatively recently, leaving both sets of courts and law enforcement officers with the task of developing principles of coexistence and comity. In criminal cases, the Double Jeopardy Clauses of the Constitution and the Indian Civil Rights Act permits multiple prosecutions so long as the prosecutions are carried out by separate sovereigns. The Supreme Court has held that Indian nations are separate from the federal government for this purpose, and the same reasoning dictates that Indian nations are separate sovereigns from the state.”[xi]
“In civil cases, concurrent tribal and state jurisdiction under Public Law 280 leads to the possibility of each disputant racing to litigate in the forum of choice. Public Law 280 does not give state courts the power to restrict the exercise of tribal jurisdiction even when the first litigant to file chooses state court. If each sovereign is under some obligation to respect the judgments of the other, then the first forum to reach a judgment will determine the outcome, regardless of the duration or extent of completion of the parallel proceeding. If the sovereigns do not view themselves as under any compulsions to respect one another’s judgments, the litigants may be subjected to conflicting and mutually inconsistent orders.”[xii] The principle of comity would, therefore, urge a state to recognize and respect John’s modification action in Tribal Court over Jane’s action in State Court.”[xiii]
“Judge-made doctrine may also function to limit conflicts. One valuable source of guidance is the doctrine of exhaustion of tribal remedies that has been crafted by the Supreme Court for situations in which Indian nations and the United States share authority over the same matters. According to this doctrine of comity, federal courts will normally decline to invoke their federal question or diversity jurisdiction until the litigants have presented the issues and obtained a resolution from the tribal court system. Some legal issues, such as the extent of tribal jurisdiction, will remain for possible relitigation in federal court; even then, the federal court will grant some deference to the tribal court’s underlying findings of fact.”[xiv]
“ The federal exhaustion doctrine is designed to avoid interference with Indian nations’ self-government and to afford federal courts the benefits of tribal consideration of matters within the tribes’ realm of special expertise. Arguably, this doctrine embodies a federal common law of deference to tribal courts that binds state and federal courts. Even if the doctrine in not binding on state courts as a matter of federal common law, however, the same considerations of comity and efficiency that animate the federal exhaustion doctrine counsel in favor of state courts establishing an identical rule of deference.”[xv]
“A growing number of state courts have embraced such an exhaustion doctrine, requiring plaintiffs to bring their claims to tribal court even though the state may possess concurrent jurisdiction under Public law 280. Most of the state cases exemplifying this development have involved suits against tribal entities or officers, with attendant issues of sovereign immunity and privilege. Exhaustion in the name of respect for the tribal self-government is particularly appropriate in these cases. But just as the federal exhaustion doctrine has been applied to private lawsuits, so arguably should state exhaustion doctrine. Respect for an Indian nation’s power of self-government implies that the tribe should have primary responsibility for activities that occur within its boundaries, and therefore a state court possessing concurrent jurisdiction under Public Law 280 should stay its hand pending exhaustion of tribal remedies….Given the Indian law canons of construction, and the subsequent development of congressional policies favoring tribal self-determination and tribal courts, it is proper to read public law 280 as incorporating a state exhaustion requirement where tribal courts exist.”[xvi]
The Idaho Supreme Court has held that “tribal court judgments are entitled to recognition and enforcement under principles of comity.”[xvii] The policy of the Idaho judiciary is to maintain a “good working relationship between state and tribal courts.”[xviii] Although the Idaho Supreme Court has not expressly held that the doctrine of exhaustion of tribal remedies applies in Idaho, it should arguably so hold under the foregoing facts because the requirement that a party exhaust tribal remedies is a logical counterpart to the doctrine of comity.[xix]
More Convenient Forum
Idaho’s UCCJEA at Idaho Code § 32-11-207 allows for a state court to decline to exercise its jurisdiction to modify if it finds that another forum is a more convenient forum for determination of child custody. Idaho Code § 31-11-207(b) sets forth the factors a court shall consider in doing so, such as: whether domestic violence has occurred, the length of time the child has resided out of state, the financial circumstances of the parties, any prior agreement regarding jurisdiction, the nature and location of evidence including testimony, the ability of each court to decide the issue expeditiously and procedures used, and the familiarity of each court with the facts and issues presented. A Tribal Law and Order Code may have a similar provision.
Moreover, the Tribal Court pursuant to its own Tribal Code may have a provision for continuing, exclusive jurisdiction, and therefore have exclusive jurisdiction to modify its prior Decree. If so, it would be for the Tribal Court to decide whether it is a more convenient forum than State Court.
There is a strong public policy that favors modifying the Tribal Court Decree in Tribal Court on John’s Reservation, where John and the children have always resided. The reservation is in effect “the home state” of the children. Although it is not required to do so, the State Court should regard the Tribal Court as having continuing, exclusive jurisdiction to modify John’s Decree of Divorce. Comity and a strong public policy of deference to tribal self-government and requiring Jane to exhaust her custody remedies in Tribal Court favor dismissing the State Court modification action of Jane and requiring her to pursue such a modification action in Tribal Court, where John has filed his modification action. Court decisions or legislative action may, in the future, provide more certainty regarding Idaho’s jurisdictional provisions and their application to Tribal Courts.
[i] Uniform Child Custody Jurisdiction and Enforcement Act (1997), National Conference of Commissioners on Uniform State Laws. Article 1 contains the General Provisions, and Article 2 pertains to Jurisdiction. Section 104
(Application to Indian Tribes) reads: “a) A child-custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. §1901 et seq., is not subject to this [Act] to the extent that it is governed by the Indian Child Welfare Act. [(b) A court of this State shall treat a tribe as if it were a State of the United States for the purpose of applying [Articles] 1 and 2.] [(c) A child-custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this [Act] must be recognized and enforced under [Article] 3.]” The Idaho Legislature only adopted subparagraph (a) of Section 104, which is now found at Idaho Code §32-11-104.
[ii] Id., [Article] 1, Section 101.
[iii] Idaho Code § 32-11-201.
[iv] Cohen’s Handbook of Federal Indian law (2005 edition, Lexis Nexis, Matthew Bender) at 205. The author has chosen to quote from Cohen’s Handbook more extensively than might seem called for because of the importance of tracing the orgin and development of tribal sovereignty in sufficient detail to underscore the policy position that author will advocate in this article.
[v] Id. at 206.
[vi] Id. at 208.
[vii] Id. at 211.
[viii] Id. at 217.
[ix] Act of Aug. 15, 1953, 67 Stat. 58 (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-1326, 28 U.S.C. §§ 1360, 1360 note).
[x] Cohen at 561.
[xi] Id. at 562.
[xii] Id. at 563-564.
[xiii] See Teague v. Bad River Band of the Lake Superior Chippewa Indians, 612 N.W. 2d 709720 (Wis. 2000). (when faced with conflicting tribal and state court judgments, the Wisconsin Supreme Court invoked the doctrine of comity and found the State court should respect the tribal judgment).
[xiv] Cohen at 564.
[xv] Id. at 564-565.
[xvi] Id. at 565.
[xvii] Coeur d’ Alene Tribe v. Johnson, 162 Idaho 754, 759, 405 P.3d 12 (2017).
[xviii] See Sheppard v. Sheppard, 104 Idaho 1, 8, 655 P. 2d 895, 902 (1982); see also Idaho tribal-State Court Bench Book at 1(2014 ed). (https://isc.idaho.gov/tribal-statetribal-benchbook).
[xix] See Nat’l Farmers Union Ins. Companies v. Crow Tribe of Indians, 471 U.S. 845, 856-57 (1985) (“[P]olicy of supporting tribal self-government and self-determination…favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge.”); Strate v. A-1 Contractors, 520 U.S. 438, 56 (1997) (“[E]xhaustion requirement [is] a prudential rule based on comity.” (internal citations and punctuation omitted)).
Fred G. Zundel is an attorney in the Pocatello Office of Idaho Legal Aid Services. He received his law degree from the J. Reuben Clark Law School at Brigham Young University and his B.A. from the University of California at Davis. He is currently a member of the Bannock County Sexual Assault and Domestic Violence Task Force and serves as an at-large member of the Idaho State Bar’s Family Law Section. He is licensed to practice law on the Shoshone-Bannock Reservation.
By Keith Bryan
A Meridian couple is facing felony charges after police say officers found their children in a house filled with garbage, mildew, and expired food. Four children, who range in age from five months to 12 years old, have been placed in state custody.[i] This home was filled with trash, rotten food, soiled diapers, metal scraps, and other dangerous devices and materials.
It was so filled with filth, officers were unable to find a clear path through the home.[ii] Floors, furniture, and countertops were unusable as filth overran the home. In addition, police said officers detected a strong smell of mildew in the house and found a bottle of bleach on the floor.[iii] These parents put their children in an extremely dangerous environment.
Abuse comes in a variety of ways; severe neglect, physical abuse, and emotional abuse take a toll on the children who deal with abuse in their daily life. We, however, read stories like this and think, “those kids are lucky to be out of that situation.” While the sentiment is accurate, the struggle for the kids continues well beyond being taken from their home. Most times, the kids are scared or angry they’re being removed. What may seem like an obviously bad situation to us, is their reality, all that they know. They do not want to live anywhere else. They want to be with their family.
The Idaho foster care system works hard to place abused children, like those just removed from the Meridian home, together. Those who work to place children don’t like to break up siblings when placing them in foster care. However, sometimes it’s unavoidable. For all the great Idahoans who open their homes to foster children, the need far outweighs the availability of homes. This article will address how child protection and foster care work in Idaho, the need for additional foster care homes, and how Idaho attorneys can help children in need of protection.
How Child Protection & Foster Care Works
The Division of Family and Community Services (FACS) is part of the Idaho Department of Health and Welfare (IDHW). FACS is responsible for child protection, adoptions and foster care, interstate compact on the placement of children, Indian child welfare, services for persons with developmental disabilities, resource development and eligibility, navigation services and early intervention/screening for infants and toddlers.[iv] The Child and Family Services (CFS) program provides child protection, adoption, foster care, and Native American child welfare services in close collaboration with other FACS Division programs.[v]
These programs reflect the philosophy that a family-centered environment is the best place for children to thrive. Idaho provides many services to foster parents and collects data to help improve these services. Idaho’s Statewide Resource Family Recruitment and Retention activities are contracted through Eastern Washington University (EWU).
Contracted services include resource family recruitment, retention, Parent Resources for Information, Development, and Education (PRIDE) pre-service training, core training, Resource Training & Support Groups, and three annual Resource Family and Social Worker Conferences.[vi] EWU is responsible for the collection, compilation and analysis of data, and the development of reports for management specific to the Resource Parent Mentor (RPM) program.
During Fiscal Year 2017, the number of licensed non-relative and relative resource family homes increased. The need to find and prepare families to foster and adopt children continues to grow. In 2017, Idaho’s foster care system served 2,714 children and 1,502 licensed resource families.[vii] The number of children in the systems has increased: 2,434 kids were in foster care in 2015, 2,559 kids were in foster care in 2016, and 2,714 kids were in foster care in 2017.[viii] As our population continues to grow, the need for foster homes will grow as well. At this point, Idaho does a good job of meeting the foster care needs.
However, the IDHW is spread thin; more foster parent volunteers are needed to help kids adjust to their new realities and new norms. For the kids, being taken from their home can be a scary thing, some of these kids have not been able to trust adults their entire lives, others do not know any better. For most people, the fear of the unknown is real; for a child, that fear is magnified. Either way, it is important that our community rally around the youth of our state.
A Call to Help Children in Need
Not everyone is in a place to open their home to children that need help. But you can be involved in other ways. For example, Family Advocates places guardians ad litem and attorney candidates with new Child Protection cases as the program is appointed. I am personally involved with Family Advocates and am guardian ad litem in a case for two kids.
As a guardian, I speak on behalf of the kids in court. Often, the state has an attorney, the parents are assigned an attorney, but the kids need their voice heard as well. The guardian ad litem program has been very rewarding and ensures these frightened children know that their opinion matters. Their voice is being heard. In Fiscal Year 2019, Family Advocates in Boise had to turn away 30 children’s cases because of a lack of guardian ad litem, attorney to represent or a combination of the two.
Being an attorney in Idaho puts you in an important position to assist the community in tremendous ways. The Rules of Professional Conduct outline that attorneys should aspire to 50 hours of pro bono service per year.[ix] There are a variety of ways to give back to our great community. One of those ways is to volunteer as an attorney representing guardians ad litem that operate through the Family Advocates nonprofit organization in the Fourth Judicial District, or one of the seven CASA programs in each of the judicial districts around the state.
As a Guardian, you must represent the child’s best interest. The child may want one thing, and the foster parents want something completely different. In addition to that, the biological parents may want something else, too. As a guardian, it can be very helpful to have an attorney to bounce ideas off, when you inevitably have a difficult situation arise in the representation of a minor child.
As Idahoans, we care deeply for our community. As attorneys, it’s important we use our gifts and abilities as counselors to assist our community when they need it. Taking care of children and respecting a strong family dynamic are important to the future of our state. The system works, but only because of volunteers. It is important to always remember these issues, and when you’re able, help those that are less fortunate.
[iv] 2019 Annual Progress and Service Report, Child and Family Services Program, Idaho Department of Health and Welfare
[ix] Rule 6.1, Idaho Rules of Professional Conduct.
Keith Bryan and his wife live in Boise with their twin sons. Keith is a second-year law student at Concordia University School of Law and works full time as a paralegal at a local law firm.
By Michael T. Carney and Kirsten Heninger
If she’s really a victim, why didn’t she just leave? [i]
We have all heard the saying “Be the change you wish to see in the world.” While Mahatma Gandhi never actually uttered these words,[ii] the sentiment is not lost on the law students working tirelessly to change the world for those looking to escape abusive relationships in and around Ada County.
One of the first lessons for the students enrolled in the University of Idaho College of Law’s Family Justice Clinic is the difference in what is “legally” domestic violence and what it “really” is. When most people hear the words “domestic violence,” they often think about a story like the one told in popular songs such as the Dixie Chicks’s “Goodbye Earl,” where the woman wears “dark sunglasses” and “makeup to cover the bruise.”
What does not usually come to mind are the bruises and marks we cannot see but that cut just as deeply. Through emotional, verbal, and financial abuse, psychological scars are left that can be even more damaging than physical injury.[iii] Women consistently report that psychological abuse is the greatest source of their suffering.
If you do a quick search on Twitter for #WhyIStayed, you’ll be flooded with Tweets expressing the psychological toll of domestic violence, such as: “Because he had already shredded my self-worth with his words in a hundred subtle ways;” “I thought I wasn’t worthy of any other kind of love;” and “I believed I deserved it.” Mix in her friends saying, “If he ever hit me, I’d be gone!” and threats by the abuser to take the kids so she never sees them again. It becomes easier to see how much she’s been beaten without anyone ever laying a finger on her.
Trauma-Informed Practice is Good Lawyering
One afternoon a woman turned in an application for help from the Clinic that simply indicated she was “seeking legal advice.” After calling her to find out more, we learned her ex-boyfriend had taken their children and refused to give them back to her. We then found out he had not been involved in the kids’ lives for the better part of the last year. It had been three weeks since she last saw her children and she was looking for advice on how to get them back.
The catch: approximately two weeks prior, he offered to return the children to her on a couple of occasions, but she refused.
Good lawyering practices tell us it’s important to continue the conversation. Many attorneys would. Some may not. Who could blame someone for ending the call after learning she could have got the kids back but refused? After all, refusing to take your children when they are offered to you could be a sign that you did not really want to have them.
But the goal is not to teach at future lawyers, but to shape students into good lawyers – and thus, the call continued. We kept asking questions – and as the story developed, it wove an intricate narrative entwined with years of physical, emotional, verbal, and financial abuse. It became clear why she had refused to take the kids back. He was trying to force her into agreeing to custody and visitation terms that were completely unreasonable – and he wouldn’t let her see the kids until she agreed to his terms.
The practices described here are also an example of good trauma-informed practice. Not only do clinical students learn to recognize the effects of trauma in their clients’ decision making, they strive to put aside their own personal bias by understanding that victims of traumatic events often do not behave how we would want or expect. Our client here did not act how we expected someone would. By continuing with the story, someone who really needed and deserved legal assistance received it and was reunited with her children.
The Harsh Reality of Saying “No”
In 2019, the Clinic received well over 300 applications for legal assistance and the number is sure to only go up in the coming years. It would be easy for the clinic director to review each and make case acceptance decisions on their own. However, case selection is an important aspect of a successful practice.
This is why each week the Clinic faculty sits down with enrolled students to review all our new applications. Students present any applications they completed and give their assessment of the pros and cons of the cases. They are ultimately tasked with giving their opinion as to whether the Clinic should accept the case or not.
Young and eager law students start the semester passionately advocating for every single applicant. And as each week passes, the looks of dejection grow as applicant after applicant is declined. “But I’ll put in more hours!” or “They can’t afford another lawyer!” are common pleas, despite being reminded we must be mindful of our resources – including ourselves – and our commitments to existing clients.
On one particularly grueling Friday afternoon in October, students faced their toughest task yet. Story after story pulled at the heartstrings of everyone in the meeting. Women with next to nothing who fled a violent relationship and sought to divorce. Parents seeking to protect their children from child abuse. All people with next to nothing and nowhere else to turn.
Vigorous debate ensued. Voices were raised and a few tears shed. Ultimately a consensus was made and the two clients we had capacity for were selected out of the 13 applications being considered that day. Painful phone calls to the others were made before leaving for the weekend, but not before two very important lesson were learned.
First, domestic violence impacts far too many and despite endless passion and desire far too many are unable to obtain the legal services they so desperately need and deserve. And second, being able to obtain a legal education and help those we can is rewarding and life altering.
The success of the Clinic speaks for itself. In 2019, 262 lives were made better because of the students’ passion and desire to learn. Far more than would have been helped before the Clinic started in January 2018.
History of the Family Justice Clinic
Since 2006, the now Faces of Hope Victim Center (FACES) has existed as a safety net for all those experiencing abuse and neglect. The Center provides essential services all under one roof. From medical, safety planning, education, and basic needs, those impacted by domestic violence, sexual violence, child abuse, elder abuse, and stalking can access the services without driving across town to several different organizations.
Despite all the resources provided, Jean Fisher, a deputy Ada County prosecutor and FACES COO, saw a gap in services. Survivors coming to the Center were able to see a doctor, meet with a victim advocate to draft a safety plan, and get clothes for themselves and their children. Yet, the survivors were unable to talk to a lawyer about how to permanently separate from their abuser and protect themselves and their children.
Fisher also wanted survivors to have access to a lawyer to represent them in obtaining a civil protection order, a divorce, or to establish a child custody order. After years of hard work, Fisher and the University of Idaho College of Law agreed in 2017 to a joint effort to bring a licensed attorney and third-year law students into Faces of Hope. This allows the Center to offer complete crisis-intervention services to all those who walk through the front door.
In January 2018, the University of Idaho College of Law offered students the ability to enroll in an experiential program at Faces of Hope. Under the supervision of a law professor, the students provided free legal assistance for civil protection orders to those impacted by domestic violence in Ada County. Over the 18 months that followed, the program grew and transitioned into providing services in family law cases in addition to the civil protection help the group was already providing.
The experiential program was such a success that the University of Idaho College of Law faculty approved the creation of their newest law school clinic and the Clinic was born. In August 2019, the Clinic officially enrolled its first class of students. As word spreads among students of the educational experiences of their classmates – the ability to meet with clients, draft pleadings, negotiate with opposing parties, and conduct hearings and trials – interest in the program is through the roof. Clinic enrollment is full through the Spring 2021 semester and a waitlist is in place.
In such a short time the Clinic has shown great success and will continue to prove Nelson Mandela’s point that “education is the most powerful weapon which you can use to change the world.”
[i] Statistically, far more women are victimized by domestic and sexual violence and therefore we chose the female pronoun throughout. However, it is important to note men can and are survivors as well. The services of the Family Justice Clinic and Faces of Hope are open to both men and women experiencing domestic or sexual violence.
[ii] While some version of this “quote” appears on everything from inspirational posters and bumper stickers to coffee mugs and memes on the Internet, there is no evidence Gandhi ever said such a thing. While it sounds very much like he said, it seems at best to be a tweaked version of a 1913 writing about snakebites. Garson O’Toole, Be the Change You Wish To See In The World, Quote Investigator (Oct. 23, 2017), http://quoteinvestigator.com/2017/10/23/be-change/.
[iii] Deborah Epstein & Lisa A. Goodman, Discounting Women: Doubting Domestic Violence Survivors’ Credibility and Dismissing Their Experiences, 167 U. PA. L. REV. 399, 418 (2019).
Michael T. Carney is an Assistant Professor with the University of Idaho College of Law and oversees the Family Justice Clinic as its clinical director and staff attorney. For more than 17 years, he has been involved in advocacy for survivors of domestic and sexual violence. Prior to joining the University of Idaho, Professor Carney practiced with Mid-Missouri Legal Services, Corp. in Columbia, MO. He actively litigated hundreds of cases, including divorce, custody, paternity, evictions, and protection orders, among many others. He also created and supervised the Housing Practicum with the University of Missouri School of Law where advanced law students assisted in housing-related matters. When not teaching, Professor Carney can be found spending time with his partner of nearly 12 years, Megan, and his five-year-old daughter, Madelyn, or in the backyard making the neighborhood jealous with a variety of homemade Kansas City style BBQ.
Kirsten Heninger is a third year law student at the University of Idaho College of Law and a Fall 2019 Family Justice Clinic Student.
By Frederick G. Zundel
Over the past several years state legislatures have addressed the scourge of domestic violence by passing civil protection order statutes and adding domestic violence as a factor in their custody provisions. Idaho has joined this movement. However, the survivor of domestic may face jurisdictional challenges to securing his or her safety from an abuser. This article will summarize those challenges and possible solutions to obtaining personal jurisdiction over the abuser and subject matter jurisdiction to decide custody of the survivor’s and abuser’s children.
Most domestic violence protection order cases in Idaho will involve parties who reside in the State of Idaho, where personal jurisdiction issues will not arise. However, the practitioner may be asked to represent a petitioner in a domestic violence proceeding where the alleged survivor has relocated to the State of Idaho and the respondent resides in another state. When the victim chooses to file for a civil protection order in Idaho, the issue arises as to whether the State has personal jurisdiction over the respondent to issue a protection order against the respondent.
This issue should be distinguished from the issue as to whether the state can issue a custody order concerning the parties’ children, where the requirements for custody pursuant to the Uniform Child Custody and Jurisdiction Prevention Act (“UCCJEA”) in Idaho and the federal Parental Kidnapping Prevention Act (“PKPA”) have been satisfied but there is no personal jurisdiction over the respondent. This latter issue will be discussed in the following.
The Domestic Violence Crime Prevention Act at Idaho Code §39-6301 et.seq. does not address personal jurisdiction over the respondent. It simply provides that with regard to civil protection orders issued in the State, personal service of the order is required, unless the order itself indicates that the respondent has already received a copy or the respondent has waived service in a prior court appearance.[i]
For a foreign civil protection order to be enforced in Idaho, it must be “valid,” which means that (1) the order identified the protected person and the respondent; (2) the order is currently in effect; (3) the order “[w]as issued by a tribunal that had jurisdiction over the parties and subject matter under the law of the issuing state”; and (4) the respondent had been given reasonable notice of the foreign protection order proceeding and had an opportunity to be heard, in a manner “consistent with the rights of the respondent to due process.”[ii] This language requires the State of Idaho to enforce civil protection orders issued by other states so long as the issuing court had personal jurisdiction over the respondent-abuser.
The Idaho Supreme court has held that “[t]he proper exercise of personal jurisdiction of non-resident defendants by an Idaho court involves satisfying two criteria. (cases omitted). First, the court must determine that the non-resident defendant’s actions fall within the scope of Idaho’s long-arm statute. (case omitted). Second, the court must determine that exercising jurisdiction over the non-resident defendant comports with the constitutional standards of the Due Process Clause of the U.S. Constitution.”[iii]
As to the first criterion, Idaho’s long-arm statute is found at Idaho Code § 5-514. Acts subjecting a non-resident to the jurisdiction of an Idaho Court include (a) the transaction of any business within the state; (b) the commission of a tortious act within the state; (c) the ownership, use or possession of any real property within the state; (d) contracting to ensure any person, property or risk located within the state at the time of contracting; (e) the maintenance within the state of a matrimonial domicile at the time of the commission of any act giving rise to a cause of action for divorce or separate maintenance; and (f) the engaging in an act of sexual intercourse within the state, giving rise to the cause of action for paternity under Chapter 11, Title 7, of the Idaho Code.
As for the second criterion, “[t]he Fourteenth Amendment to the U.S. Constitution permits a state to exercise personal jurisdiction over a non-resident defendant when a defendant has met certain minimum contacts with the state such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ (case omitted). In determining the existence of minimum contacts, a court must focus on the relationship among the defendant, the forum, and the litigation (case omitted). Once a court finds the requisite minimum contact, it must then proceed to determine whether its assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice.”[iv]
The most likely act subjecting an alleged perpetrator of domestic violence to personal jurisdiction would be the commission of a tortious act. Tortious causes of action for domestic violence may include: assault, battery, defamation, false imprisonment, intentional or reckless infliction of emotional distress, negligent infliction of emotional distress, intentional interference with custody or visitation, third-party negligence, tortious infliction of a sexually transmitted disease, wrongful death, defamation, libel and slander, marital rape, stalking, fraud, destruction of property, implied cause of action for violation of a criminal statute, and interference with parental rights of custody.[v] In attempting to satisfy the tortious cause of action in the long-arm statute, a petitioner could show that the act causing injury either happened in Idaho or happened in another state but injured the petitioner in Idaho.
An Idaho court may thus get personal jurisdiction over a non-resident respondent if the petitioner can show that the respondent’s actions outside of Idaho caused the petitioner to suffer emotional distress in Idaho. Some examples of acts that may cause such injuries might include threatening phone calls, letters, electronic messages via the internet or cell phones, or third party contact (e.g. messages sent through friends) from the respondent to the petitioner while residing in Idaho.
Some have argued that another emotional injury that may be sufficient for the long-arm statute to apply is the fear resulting from a batterer. Although the fear of domestic violence is often ongoing after the battered woman has left the state where the respondent resides, the petitioner may present the fear as a separate injury that occurred while the battered petitioner resided in Idaho, although the event causing the fear occurred outside of Idaho.
There are no Idaho cases that address tortious activity by a non-resident tortfeasor in a domestic violence setting. However, the Idaho Supreme Court has held that a non-resident wholesaler’s alleged fraudulent statements made during telephonic and electronic communications regarding the quality, value, and packaging of jeans sold to an Idaho resident was sufficient to satisfy the tort language of Idaho’s long-arm statute.[vi] Since the alleged fraudulent representations were directed at an Idaho resident and the injury occurred in Idaho, Idaho had personal jurisdiction over the non-resident wholesaler. This reasoning could apply to at least the torts directed against a domestic violence survivor just summarized.
The petitioner would also need to show that the non-resident respondent has sufficient minimum contacts with the petitioner’s new state. “The commission of a tort within the state is considered sufficient contact ‘to invoke the tortious act language of I.C. Section 5-514(b).’ (case omitted). This section is designed to provide a forum for Idaho residents, is remedial legislation of the most fundamental nature and should be liberally construed.”[vii]
Other states that have addressed the issue of whether personal jurisdiction is required before issuing a domestic violence civil protection order against a non-resident abuser have for the most part tried to fashion a remedy for the victim that allows for the issuance of a protection order in the refuge state.[viii]
Apart from personal jurisdictional issues, if the petitioner and respondent have any minor children, and the petitioner wants primary or sole physical custody of the children, then the petitioner must satisfy a separate set of criteria in order for an Idaho Court to have subject matter jurisdiction to issue a custody order regarding the children.
Idaho Code § 39-6306(1)(a) provides that “[t]emporary custody of the minor children of the petitioner or the parties [may] be awarded to the petitioner or respondent if exercise of such jurisdiction is consistent with the provisions of Section 32-11-204, Idaho Code, and consistent with prior custody orders entered by a court of competent jurisdiction unless grounds exist pursuant to Section 32-717, Idaho Code.” Idaho Code § 32-11-204 is the temporary emergency jurisdiction provision under the UCCJEA.
Idaho Code § 32-717 contains the factors for evaluating the custody arrangement that is in a child’s best interests. Interestingly, this language in Section 39-6306(1) is provided for the guidance of the court at the hearing on the merits in a civil protection order proceeding but is not found in Idaho Code § 39-6308, which allows the court to issue an ex parte temporary protection order on the basis of petitioner’s sworn affidavit. The legislature apparently intended that all child custody jurisdictional issues would be reserved for the hearing on the merits.
As a preliminary matter, it should be noted that although Idaho Code §39-6306 refers only to Idaho’s UCCJEA temporary emergency jurisdiction provision, the protection order judge must also consider whether the court has jurisdiction pursuant to Idaho Code § 32-11-201 in assessing initial child custody jurisdiction where there is no prior custody order.
This section evaluates the four bases under which a court may exercise jurisdiction over a child custody case: home state, significant connection, more appropriate form, and last resort or default. And this for the reason that a “child custody proceeding” pursuant to Idaho’s UCCJEA, in which legal custody, physical custody, or visitation with respect to a child is in issue, includes “protection from domestic violence.”[ix]
It should be noted that pursuant to Idaho’s UCCJEA, “. . . personal jurisdiction over a party or a child is not necessary or sufficient to make a child custody determination.”[x] Therefore, if an Idaho court does not have personal jurisdiction over the respondent to issue a protection order against the respondent, which would normally include a child custody provision if the parties have children, then the petitioner could seek a custody order through a different type of proceeding, such as filing for custody or divorce under the domestic relations laws of Idaho.
The petition initiating such a proceeding could also provide for the kind of injunctive relief found in a civil protection order proceeding but without the criminal remedies available for violation of a domestic violence protection order. The only remedy available in that case would be a motion for contempt.
Idaho Code § 32-11-201 establishes four bases under which a court may exercise jurisdiction over a child custody case: home state, significant connection, more appropriate forum, and last resort or default. In addition to these bases, Idaho Code § 32-11-204 permits a court to exercise temporary emergency jurisdiction under certain circumstances. The UCCJEA’s jurisdictional bases are set forth as a hierarchy, with home-state jurisdiction given the highest priority.
Therefore, if there is a state with home-state jurisdiction, only this state may decide the custody case, unless the state declines to exercise jurisdiction, as explained below. If there is no state with home-state jurisdiction or if the home state declines to exercise its jurisdiction, a state having significant-connection jurisdiction may decide a custody case. If all states having home-state jurisdiction or significant-connection jurisdiction decline to exercise jurisdiction in favor of another state, then that state may exercise more appropriate forum jurisdiction. Finally, last resort or default jurisdiction is available when no state satisfies the jurisdictional criteria described above.[xi]
The UCCJEA’s inconvenient forum provision allows a court in the state with home-state or significant-connection jurisdiction to decline to exercise jurisdiction if it determines that it is an inconvenient forum and there is a more appropriate forum.[xii] This provision can be of great use where a victim of domestic violence has fled from the home state or the significant-connection state to escape abuse. The UCCJEA explicitly directs courts to consider domestic violence in determining whether to decline jurisdiction. The first among eight statutory factors that the court must consider is “whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.”[xiii] In making an inconvenient forum analysis, the court is required to consider all relevant factors, including the eight explicit factors set forth in the statute.
The lead case in making an inconvenient form analysis in a domestic violence setting is Stoneman v. Drollinger.[xiv] In this case, the parties and their four minor children had lived in Montana for several years, and there was no question that Montana was the home state. There had been extensive litigation in Montana between the parties, resulting in a case file that was then in its 13th volume.[xv] However, there was persuasive evidence that the father had repeatedly battered the mother during the marriage and that the mother had obtained several court-issued orders of protection during their multiple separations.
The father had pled guilty to partner and family member assault in 1990, 1991, 1994, 1996, and had violated the mother’s protection orders on numerous occasions.[xvi] The mother finally relocated from Montana to Washington with the four children, and the Washington trial court issued a permanent protection order. The mother then filed a motion in Montana requesting that the Montana court decline jurisdiction under the UCCJEA in the party’s pending custody case in Montana.
The trial court denied the motion, and the Montana Supreme Court reversed and ordered the trial court to communicate with the Washington court and to decline jurisdiction based on inconvenient forum.[xvii] The Montana Supreme Court urged the trial court “to give priority to the safety of victims of domestic violence when considering jurisdictional issues under the UCCJEA.”[xviii]
The expanded temporary emergency jurisdiction under the UCCJEA at Idaho Code § 32-11-204 is another valuable tool for attorneys representing domestic violence victims who flee to Idaho. A court may exercise temporary emergency jurisdiction when “it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected or threatened with mistreatment or abuse.”[xix] Pursuant to the same section, to exercise emergency jurisdiction, the court must determine that there is an emergency and that the child is present in the state.
Where another state has child custody jurisdiction under Idaho Code § 32-11-201 (4 jurisdictional bases), 32-11-202 (has exclusive continuing jurisdiction), or 32-11-203 (Idaho has no authority to modify the other state’s custody order), and that state has not declined to exercise its jurisdiction, then jurisdiction under the UCCJEA may be exercised but is temporary only for a set period of time. The Idaho court exercising emergency jurisdiction is required to communicate with the foreign court with proper jurisdiction to resolve the emergency, protect the parties and the child, and determine the duration of the emergency order.[xx]
It would, therefore, be incorrect for anyone to advise a survivor of domestic violence that they may not file for custody in a refuge state until they have been there for six months. The emergency jurisdiction provision is designed for exactly this kind of situation, in which a parent or child is in danger and the parent and child have escaped to a safer jurisdiction.
The UCCJEA also has provisions permitting interstate discovery in cases where traveling to another jurisdiction to try a party’s case would be unsafe or too difficult for the party. The party may offer the testimony of witnesses located in another state, or a court may order testimony to be taken elsewhere.[xxi] Out-of-state depositions, as well as testimony by telephone, audio/visual means, or other electronic means before a designated court or other location in the foreign state, may be conducted to keep domestic violence survivors safe.[xxii] [xxiii]
[i] Idaho Code § 39-6308(5) and 6310 (1).
[ii] Idaho Code § 39-6306 A (3) (d) (emphasis added). Idaho Code § 39-6306 (A) is Idaho’s adoption of the Uniform Enforcement of Domestic Violence Protection Orders Act. See Uniform Laws Annotated, Master Edition, Vol. 9, Pt. IB.
[iii] Blimka v. My Web Wholesaler, 143 Idaho 723, 726, 152 P.3d 594 (2007).
[iv] Id. at 727.
[v] See TP: Solo Law Trends and News-Family Law Vol. 1, No. 4 (August 2005) (www.americanbar.org/newsletter/publications/law_trends_news_practice_area_e_n…); “The Rule of Thumb’: Plaintiffs’ Domestic Violence Tort Actions”, www.plaintiffmagazine.com(November 2009, January 2010, April 2010), and “Domestic Violence Torts”. Jennifer Wriggins, Southern California Law Review, Vol. 75:121 (2001).
[vi] Blimka v. My Web Wholesaler, 143 Idaho 723, 152 P.3d 594 (2007).
[vii] McAnally v Bonjac Inc., 137 Idaho 488, 491, 50 P.3d 983 (2002). For a fuller discussion of a minimum contacts analysis, see St. Alphonsus Regional Medical Center v. State of Washington, 123 Idaho 739, 743-744, 852 P.2d 491 (1993).
[viii] Bartsh v. Bartsch, 636 N.W. 2d 3, 6 (Iowa 2001) (personal jurisdiction not required for a protected status); Shah v. Shah, 875 A.2d 931 (N.J. 2005) (if no personal jurisdiction, protection order can only provide prohibitory relief), which is followed by Spencer v. Spencer, 191 S.W. 3d 14, 19 (Ky. Ct. App 2006) and Caplan v Caplan, 879 N.E. 2d 117,123 (Mass. 2008). For an excellent review of the cases on the issue of whether a court needs personal jurisdiction over a non-resident defendant to issue a civil protection, see “Comment: ‘Til Death Do Us Part: Why Personal Jurisdiction Is Required to Issue Victim Protection Orders Against Nonresident Abusers.” Bevan J, Graybill, 63 Okla. L. Rev. 821 (2001).
[ix] Idaho Code § 32-11-102(d).
[x] Idaho Code § 32-11-201(c) (emphasis added).
[xi] Idaho Code § 32-11-201.
[xii] Idaho Code § 32-11-207.
[xiii] Idaho Code § 32-11-207 (b).
[xiv] 314 Montana 139, 64 P.3d 997 (2003).
[xv] Id. at 153.
[xvi] Id. at 143.
[xvii] Id. at 151.
[xviii] Id. at 148-149.
[xix] Idaho Code § 32-11-204 (a) (emphasis added).
[xx] Idaho Code § 32-11-204 (d).
[xxi] Idaho Code § 32-11-1111.
[xxii] Id. at (b).
[xxiii] The author has drawn heavily upon the more detailed treatment found in “Look Both Ways Before You Cross State Lines: Using the Uniform Child Custody Jurisdiction and Enforcement Act to Assist Domestic-Violence Survivors,” 43 Clearinghouse Review 346 (November/December 2009). See also “Shelter from the Storm: Using Jurisdictional Statutes to Protect Victims of Domestic Violence after the Violence Against Women Act of 2000”, 13 Colum. J. Gender & L. 101 (2004), and “Protecting Victims of Domestic Violence under the UCCJEA,” Deborah Golman and Darren Mitchell, Juvenile and Family Court Journal 61, No. 4 (2010).
Fred G. Zundel is an attorney in the Pocatello Office of Idaho Legal Aid Services. He received his law degree from the J. Reuben Clark Law School at Brigham Young University and his B.A. from the University of California at Davis. He is currently a member of the Bannock County Sexual Assault and Domestic Violence Task Force and serves as an at-large member of the Idaho State Bar’s Family Law Section. He is licensed to practice law on the Shoshone-Bannock Reservation.
By Donald F. Carey
I resist change. In fact, I hate change. I like routine. I am very comfortable in my routines. I embrace change only when it is forced on me, and then with significant grumbling. And so, when I am told to make significant changes in the way I live my life, the way I practice law, and the way I socialize, I grumble, a lot!
We have had viruses before, Polio and Smallpox, to name just two. Why is this one different enough to upset our routines? Admittedly, I was one to think initially that the imposed quarantines were an overreaction. I have since changed my mind on that score. This disease presents differently, in different population groups, but there are no immune population groups. Some of those infected will have little if any symptoms, some very mild symptoms, and some very severe, perhaps fatal symptoms.
The same could be said for the “ordinary” flu if there is such a thing. What seems the very real concern is the speed at which COVID-19 can be transmitted from person to person. The speed of infection presents a real risk of overwhelming the healthcare delivery infrastructure and therefore causing the mortality rate to rise unnecessarily. So, we are all told to make some changes, for a while at least.
Changing how we practice law presents opportunities to learn and experience new ways to communicate that we may have previously avoided. We are now forced, out of necessity, to appear for hearings, depositions, mediations, and other meetings using Zoom, Skype, Facebook Hangout, and/or cellular phones. To some, the challenges of using these types of platforms present concerns with the technology itself, concerns over security and privacy, and for a few, considerable frustration with the upset of routine.
If we learned anything in law school, we learned how to educate ourselves. Granted, the education and training we received was focused on the law, but we would not have succeeded without the disciplines of inquiry, analysis, and research, all motivated by the need to find answers. At this moment, we have a substantial need to learn new ways to practice law in order to effectively represent our clients, meet our obligations, and protect ourselves and our families to the extent possible. What greater motivation is there?
If you, like me, are not familiar with the various platforms available for use at mediations, depositions, or hearings, now is the time to learn something new. You’ve heard the colloquialism, practice makes perfect. So, practice! Practice a Zoom meeting with your partners and associates. Set up a group chat on Facebook Hangout for your immediate and extended family. Call a friend on Skype. Get familiar with technology available to you, so when that hearing, or deposition, or meeting is called, you’ll be comfortable using the selected platform. It is not that difficult.
By using the available technologies, you can continue to practice law, despite the restrictions imposed in response to a very real health emergency that we all face. The unexpected consequence is that you can also learn how to stay in touch with those people who are important to you without risking illness, theirs or yours.
So, learn the technology, grumble if you must, just make sure your mic is off. If you don’t know how to turn the mic off on your device, Google it! Stay safe.
Donald F. Carey is a 1991 graduate of the University of Wyoming College of Law. He is a founding partner in the Idaho Falls-based law firm of Carey Romankiw. He is a certified mediator. His practice includes general litigation and alternative dispute resolution. When he is not in the office you may find running ridiculous distances int the mountains of eastern Idaho and western Wyoming.
The United States District and Bankruptcy Courts for the District of Idaho have issued General Order No. 367 regarding continued court operations in response to coronavirus (COVID-19) and Idaho Governor’s guidelines for reopening Idaho. Please read the full Order linked below:
We have been informed of another email scam circulating to attorneys, particularly those who serve in some Bar or Foundation leadership capacity. This particular scam is a phishing scam in which the sender appears to be a District Bar or Committee officer requesting payment be sent to him/her via gift cards for veterans due to COVID-19. If you receive a similar email, please do not reply or open any links. No member of Idaho State Bar or Idaho Law Foundation leadership will ever email you regarding a request for payment. See the example below: