Month: June 2022

Various Authors

Published January 2022

Attorneys for Civic Education (ACE) is proud to announce that three Idaho students and their schools were selected for prizes in ACEs first Civics Contest. Student essays explored Constitutional rights and correlating responsibilities. The three winning entries were: Audra Bunn, Wendell Middle School; Adison Buzzell, Idaho Home Learning Academy; and Dylan Hughes, North Junior High School.

The ACE Civics Contest is open to Idaho middle school students. In its inaugural year, the contest was financially sponsored by the Government and Public Sector Lawyers Section of the Idaho State Bar, whose financial contribution allowed ACE to award prizes to the top three entries along with an honorarium to the schools. The Idaho Supreme Court and the University of Idaho College of Law also provided extensive support.

Entries were critiqued by a panel of judges that included: Idaho Supreme Court Justice Gregory Moeller; Donald Burnett, retired Acting President of the University of Idaho, former Dean of the College of Law, and former Idaho Court of Appeals Judge; Pandi Elison-Chang, Ph.D., Social Studies Teacher at Preston High School, Secondary Social Studies/Adjunct Professor Idaho State University; and Melissa Davlin, Producer/Host at Idaho Public Television.

Justice Moeller said of the entries, “It was a delight to read so many inspiring essays and, frankly, reassuring to see that the rising generation has such a deep love for and understanding of the U.S. Constitution.”

Don Burnett noted regarding the essay topics, “The students identified an impressive array of constitutional provisions, including all of the first five amendments as well as the 8^th, 13^th, 14^th, 15^th, 19^th, and 16^th Amendments. Students also showed thoughtful insight into how individual rights come with personal responsibilities.”

ACE would like to thank our judges and sponsors for their support of the Civics Contest. We appreciate their dedication to advancing civic education in our state.

The three winning entries are published in the following two pages.

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The United States Constitution Protects Numerous Individual Rights

Audra Bunn

The United States Constitution protects many individual rights that have impacted our country. Three rights that can be found in the Constitution include women’s right to vote, freedom of speech, and freedom of religion. These rights are all important and all come with great responsibility that people need to be willing to follow.

Women’s right to vote was very important because it gave women an opportunity to vote for their country. Women’s suffrage rights are found in the 19th Amendment of the Constitution of the United States. In 1920, this amendment was passed in the House of Representatives, the Senate and ratified in the states (nps.gov). However, this didn’t give voting rights to all women immediately. Women of color, lower income women, and women of crime were all excluded. Native American women couldn’t vote until 1924, when they were recognized as U.S citizens (nps.gov). The obligation of women voters is to know and understand the candidates. It is also important to not be affected by public opinion. This means that you can’t always assume what is being said is true. As voters, women need to think about what is going to benefit everyone, and not just them personally.

Freedom of speech allows us to speak our minds freely about something important. This right was adopted in the Constitution on December 15, 1791, as part of the First Amendment and the Bill of Rights (guardianlv.com). Freedom of speech means that whatever you write, or say, the government can’t jail or fine you, except in exceptional circumstances (guardianlv.com). With having the right of freedom of speech, you want to be responsible with what you say because it represents what you stand for. Make sure what you say does not hurt others with hateful remarks, accusations, and untrue statements. When this is done, it does not show freedom of speech, but instead shows immaturity or foolish behavior.

Freedom of religion, like freedom of speech, was first adopted into the Constitution on December 15, 1791, as a part of the First Amendment (“U.S Constitution”). This gives people the right to speak, act, and live their religious beliefs peacefully and publicly. It also protects their ability to be themselves at work, class, or social activities (heritage.org). People can live in peace not having to be worried about being punished by the government (heritage.org). Another responsibility is not making fun of or bullying others because of their religion. So, when talking about your religion or someone else’s, try not to judge them for it because everyone is different.

In conclusion, The United States Constitution protects many individual rights that have made changes toward how we live today. Three rights that can be found in the Constitution include women’s right to vote, freedom of speech, and freedom of religion. With all these rights, there are great responsibilities as well. It is also very important to remember the way we act can represent us as human beings.

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America’s Instruction Manual

Adison Buzzell

The Constitution of the United States is one of the most important documents ever written in American history. Our forefathers wrote this to act as an instruction manual for our government leaders and ensure a way to protect the rights of citizens. It also serves to limit government power.

Freedom of expression is one of our protected rights as American citizens. It is found in the First Amendment of the Bill of Rights. Expression includes our right to free speech, peaceful assembly, petitioning the government, and freedom of religion. This means that Americans can express their thoughts, opinions, and beliefs freely, without fear of persecution. Each citizen also has the individual responsibility to exercise these rights appropriately. America was founded on the belief that people should have the right to choose their own religion, not the government. As citizens, we must protect our rights by petitioning our leaders, or by peaceful protest, when we feel those rights have been violated, and to hold our officials accountable. The First Amendment is an important factor in keeping our voices and individuality.

The right to bear arms is another freedom protected by the Constitution. It is the Second Amendment found in the Bill of Rights. This right means a citizen can own firearms. Our founding fathers knew that in order for people to remain free, they must have means to form a militia, should they need to, against enemies foreign and domestic. This includes a tyrannical government. Leaders are held more accountable when they fear the people. History has shown that the birth of tyranny in a country always begins with disarming the people. We learned this from Nazi, Germany and other communist regimes. We would never want this in America. This freedom to bear arms carries much individual responsibility. Citizens must be good stewards of this right and learn how to use firearms safely. People must also use good judgement, and be able to discern if and when a militia is truly necessary.

A citizen’s right to vote is an essential freedom. This right is represented in Amendments 15, 19, 24, and 26. The Constitution states that legal citizens cannot be denied the right to vote based on gender, race, skin color, previous servitude, age (over 18), or tax status. Voting is how leaders of our country are selected at all levels of government. I believe it is the responsibility and civic duty of each citizen to carefully examine candidates for election and choose representatives who will uphold and protect our Constitutional freedoms and liberties. Choosing not to vote, is forfeiting a citizen’s voice in government.

The American people have the right to life, liberty, and the pursuit of happiness. All generations have the responsibility to understand their Constitutional rights and learn how to protect them. We must teach these truths if our country is to remain a free, sovereign, and independent nation. I know I will be one who always stands up for freedom and the Constitution.

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Voting Rights

Dylan Hughes

Voting, a vital part of citizenship in the United States, is how we elect who we believe has our best interests in mind. There are three amendments to the Constitution that establish the right to vote for all adults regardless of race, sex, and age. These amendments can, however, leave gaps that allow for unfairness when people are exercising their right to vote.

Passed in 1870, the right to vote regardless of “color, race, or previous condition of servitude” [1] can be found in Section 1 of the 15th Amendment. My Chinese ancestors wouldn’t have been able to vote until this amendment was passed. This right allowed for people of any race or skin color to vote, as well as the formerly enslaved. Also, even if you were a slave in the past, you could vote. While this amendment made all men eligible to vote, it left open the opportunity for unfairness. This included poll taxes and literacy tests [2]. I believe the individual responsibility that comes with this right is to make voting accessible to everyone, including people of color. 19.5% of Black people are below the poverty line, with Hispanics at 17%, and Asians at 8.1% [3], which could make it harder to commute a long distance to a polling place. After all, if you are allowed to vote but can’t, what good does this amendment really do?

It was another 50 years before the 19th Amendment was ratified, giving women the right to vote. At the time, in 1920, women were not seen as equals to men. Many women followed their husbands’ lead and let them make the decisions. As a female, my responsibility when I can vote will be to not let other people tell me who I should vote for. By voting for who I believe is the best choice, I am not placing myself below men like women did in the past.

51 years after this, in 1971, the 26th Amendment was ratified. Found in Section 1 of the 26th Amendment is the right to vote at 18 years of age. Before this time, men were drafted in wars, but they were seen as too irresponsible to vote. When I turn eighteen, my responsibility will be to stay educated on current politics so I know who I want to vote for. If I am not informed about the issues that affect me, how will I know which candidate wants to help with these issues?

In conclusion, it took over 100 years for these three amendments to be ratified, but to this day, unfairness persists. As a female of Chinese descent who will turn 18 in a few years, these amendments affect me in many ways. To realize the full potential of these rights, my generation needs to take on the individual responsibilities of increasing access to vote, having confidence in your vote, and making an educated vote.

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References

[1] The US Constitution, Section 1 of the 15th Amendment, passed by Congress February 26, 1869. Ratified February 3, 1870.

[2]https://www.senate.gov/artandhistory/history/common/generic/CivilWarAme ndments.htm

[3] https://www.statista.com/statistics/200476/us-poverty-rate-by-ethnic-group/

Ryan Lindig

Published January 2022

Editor’s Note: Due to length and space constraints, the author and Editorial Advisory Board have opted to split publication of this article into two installments. This portion is the first half with the remaining half scheduled to be published in the September 2022 issue.

In the hands of an expert, gemstones can be cut into brilliant works of art, taking in rays of light and producing the shimmer and color that makes them so alluring. But when a raw diamond is pulled from the earth, it is simply a pretty rock, not yet deserving of protection. Value has not been added to the stone. Traditionally, only once a gem cutter has cut and polished the stone into something of value does it warrant protection under United States intellectual property law.

A diamond in its cut and polished form is graded based on the 4 C’s: color, clarity, cut, and carat weight.[1] The way a diamond is designed and shaped is called a “cut.” A cut is the arrangement of facets on a diamond and how well those facets interact with light.[2] Depending on which cut is used, the diamonds that qualify to be called that specific cut can be broad, but it can be very specific, down to the arrangement, number, and even angle, of its facets.[3] The most common cut is called the round “brilliant” cut.[4] Historically, the diamond cut was the only aspect of a diamond in relatively complete control by large diamond manufacturers. Large diamond mines are able to sort which diamonds to sell for jewelry use and which to sell for industrial use.

Smaller scale diamond miners do not have the same control over the four C’s of a diamond. For example, an amateur miner might go to a public mine and find only one jewelry viable diamond; that piece could be very large but narrow or have imperfections within. In order to preserve carat weight or provide the best clarity, that diamond would have to be cut in a specific way. The only other semi-controllable aspect of diamonds, historically, is the color. Natural diamonds can be treated with radiation to adjust the color to achieve a desired color scheme, but a precise color scheme could not be guaranteed.[5]

With the advancements made in synthetic diamond manufacturing, cut, color, clarity, and carat weight are all now completely controllable aspects of diamonds. These advancements have raised the question as to whether the intellectual property aspects of synthetic diamonds, and the IP rights of synthetic diamond manufacturers, are protectable under more avenues of IP than with respect to natural diamonds.

This paper will examine how the rights of diamond manufacturers have traditionally been protected, how synthetic diamonds are created, and the possible ways the IP aspects of synthetic diamonds, as well as the IP rights of synthetic diamond manufacturers can be protected under modern day technology and law.

The historical protection of diamond intellectual property

The natural diamond itself is not protected by intellectual property law before being cut. It is a fact of nature; nothing more than a rock, albeit ripe with potential. When a diamond is cut to be used in  jewelry, the rock itself is still not protected. Rather, the cut is what is protected, as that is the useful element added by the labors of a human.

The diamond cut is the defining factor in how a diamond looks and how it interacts with light. The way different diamond cuts interact with light is deliberate; the gem cutter is creating a functional feature, thus making it protectable under patent law. Unique and creative diamond cuts have been historically protected through patent and trademark law.

Patent protection

The round brilliant cut is the most common partly because it has been around for centuries, but also because it is one of the most efficient arrangements of facets in causing a diamond to interact with light to create desirable visual effects, such as “brightness,” “fire,” and “scintillation.[6]”

A diamond’s interaction with light to create these effects is the reason a cut is functional, and thus protectable under utility patent.[7] At the most basic level, a utility patent protects the way an article is used and works.[8] In the diamond industry, a utility patent protects how the cut, not the diamond, transmits light and creates brilliance, fire, and scintillation.[9]

While the round brilliant cut dominates the consumer market, a multitude of other types of cuts exist. Figure 3 shows a portion of the first page of Tiffany & Co’s utility patent for the Lucida cut filed in 1998.[10]  Figure 4 is a page from Henry Grossbard’s radiant cut utility patent filed in 1976.[11] Both of these patents have since expired, as well as Tiffany’s concurrent design patent, however Tiffany & Co. is still actively using and protecting the Lucida trademark.[12] Utility patents require a detailed explanation of how the facets work to refract light and create the aforementioned visual effects, and will protect a diamond cut for 20 years measured from the filing date.[13]

Figure 5 shows how far science and technology have come in accurately measuring the light performance of a cut.[14] This image is a compilation of pages from a patent filed in 2017 for a very specific way to create an emerald cut, down to the precise degree that each facet should be cut every time, for the purpose of obtaining a perfect light performance grade from the American Gem Society. This patent is one of many that measurably demonstrates the functionality of a cut.

In the alternative, a design patent protects the way an article looks; in the diamond industry, a design patent protects the ornamental appearance of a diamond cut.[15] (35 U.S.C. 171) When a diamond has been cut, an observer can view the physical manifestation of a diamond design. Design patents are usually less complex than related utility patents and require only a diagram of what the finished cut looks like to warrant protection. Figure 6 is a page from a patent assigned to Lili Diamonds for the Meteor cut, registered in 2011.

While a design patent does not protect any of the functional, structural, or utilitarian elements of a cut, a design patent and a utility patent are not mutually exclusive. A company that wishes to create a new diamond cut can apply for, and receive, both a utility and design patent. In addition, the name of a unique cut can be protected by trademark.

Trademark Protection

Certain cuts are profitable enough that failing to name the cut would be to miss out on a safety net for missing money. For example, Lili Diamonds patented the Meteor cut above, however it was not patented as the “Meteor Cut.” It was patented simply as “Gemstone.[16]” Lili Diamonds filed for trademark protection of the “Meteor” cut name in the United States in 2016, 5 years after the date of first use. Trademarks in the diamond industry protects the brand name of the cut, and need not be registered if used in commerce, and need not be registered after first use.

However, once the name is registered, the name must be used in commerce.[17] Trademark protection for the cut name is desirable, as the duration will be indefinite if affidavits of continued use are timely filed.[18] Lili Diamonds, a jewelry company has a couple of trademarked cuts, such as the Lily cut and the Orchidea cut. While the patent protection has since expired, the company is meticulously active in maintaining trademark use and protection for all of their recognizable cuts.[19]

The names of Lili’s cuts would likely fall under suggestive, and thus are inherently distinct marks that do not require secondary meaning within the minds of consumers. I say this because even though the cuts are named after real things, like Lily, and Meteor, if courts were to apply the imagination test to the Meteor cut, it would likely require imagination, thought, and perception to reach a conclusion as to the nature of the goods, rendering it a suggestive mark. Zatarain’s Inc. v. Oak Grove Smokehouse, Inc. Furthermore, Orchidea is a funny spelling of a word, and would also be found to be suggestive.

Other IP protection

Trade dress is a special type of mark. The trade dress of a product is essentially its total image and overall appearance.[20] In a relatively recent case, the Supreme Court established three categories for determining whether a product’s trade dress is protectable: product packaging, product design, and a “tertium quid.[21]” Trade dress that is either product packaging or akin to product packaging, like the robin’s egg blue boxes and bags that Tiffany’s products come in, is considered trade dress that is inherently distinctive, and protectable without requiring proof of secondary meaning.

However, product-design trade dress does require a showing of secondary meaning to be protectable.[22]Because court’s have been instructed to err on the side of caution, and classify hard cases at the margin as product-design, diamond cuts would likely not qualify for trade dress protection. The USPTO will also not issue protection for functional trademarks.[23]  The unfortunate reality for diamond manufacturers is that 95 percent of the public knows nothing more than the popular “round” or “square” shapes, – even less know the name of the actual popular cut, and can’t tell the difference between propriety cut designs.[24] 

Trade secrets are essentially useless in protecting natural diamond cuts. Any trained observer can take a diamond, count the facets, and recreate the cut on a couple pieces of quartz until they’re ready to recreate it on a diamond. However, synthetic diamonds are grown using a formula, and this paper will explore whether all that goes into a growth formula can be protected under trade secret.

Copyright protection for diamond cuts has not been accepted by courts and issuing offices because of problems with meeting the originality threshold, the problems that come with the exclusive rights of copyright holders, and the inseparability of a diamond cut’s utilitarian aspects from its aesthetic elements. The originality requirement is a high barrier to protecting diamond cuts. Under the Constitution and by statute, copyright validity depends on originality.[25] The novelty and originality thresholds are extremely low, yet diamond cuts do not meet the threshold for a number of reasons.

First, diamonds cuts have been in the market since the 16^th century.[26] The market has been saturated with diamond cuts for hundreds of years. Thus, claiming creative originality for a new diamond cut would be difficult, especially if based on copyright standards; most of the popular diamond cuts, like the brilliant cut, are in the public domain today. Exclusive rights of copyright holders present an even greater hurdle.

For illustrative purposes, consider the Queen’s cut, a 60-facet modified oval, patented by Henry Grossbard.[27]  Imagine that Mr. Grossbard was granted copyright protection instead of patent protection. Mr. Grossbard would have the exclusive rights of copyright holders: to do and to authorize the activities that implicate these rights. One of these rights includes the right to create derivative works. Now that a court has granted copyright protection to a cut of a diamond, the court would have to determine what constitutes a derivative work.

Mr. Grossbard himself said that anyone can copy the Queen’s cut by changing a few facets around. Therefore, a person who copies the Queen’s cut and changes a few facets around would likely face infringement liability under copyright, where he would escape under patent law. A derivative diamond cut would likely include more than merely changing a couple of facets around, but it’s unknown how far the rights would extend, because courts had the foresight to predict this rabbit-hole.

Lawsuits would be brought against any diamond cutter who sold a modified oval cut, or an oval, or even a circular shape in general. There would likely be arguments made that any cut with around 60 facets would be a derivative work. Additionally, because a derivative work has a higher threshold requirement for originality than the copyrighted work, it is unlikely any diamond cut that looks remotely like the Queen’s cut could be sold within 70 years. 

The last hurdle a diamond cut would have to make to garner copyright protection is a mixture of the merger doctrine and functional qualities of the cut. Copyright does not protect the pictorial, graphic, or sculptural features of useful articles, unless those features are separable from the useful article’s utilitarian elements.[28] In Mazer, the part of the lamp that could get protection is the separable elements, the sculpture, not the lamp as a whole. In this case, a sculptor could take a piece of stone and cut it in the shape of a Queen’s cut. In theory then, the cut could be protected under copyright.

However, what if someone then wanted to apply that cut back onto a diamond in order to create the light refractions? It would be impossible to create the light refractions of a specific cut without cutting a diamond in that shape. In this instance, the merger doctrine would likely kick in. There is only one way to cut a diamond to create the type of light refractions that the Queen’s cut offers, and thus, the idea and expression would merge and the cut would not be copyrightable.

The fundamental problems with protecting diamond cuts through copyright are the novelty and originality threshold, the problems that come with the exclusive rights of copyright holders, and the inseparable qualities a diamond cut has. This is why most inventors who create a new diamond cut have elected to protect their cuts through the simultaneous use of utility and design patents, rather than through copyright law.

Synthetic diamond creation

Synthetic diamonds can be created through a variety of methods, but only two methods are primarily used to create gem-quality diamonds that are used for jewelry.[29] These techniques are known as “High Pressure, High Temperature growth,” (HPHT) and “Chemical Vapor Deposition” (CVD).

The HPHT growth process is shown in Figures 8, 9, and 10. To grow a diamond using the HPHT method, a diamond manufacturer needs equipment to simulate the key conditions of natural diamond growth, which are high temperature and high pressure.[30] Figure 8 is a diagram of a heating cell where the high temperature portion of the growth process takes place.

First, a manufacturer will place a diamond seed crystal at the bottom of the cell. A seed crystal is a tiny piece of diamond (pure carbon) that behaves as a blueprint for carbon atoms. The diamond seed is then surrounded with a metal solvent like iron, cobalt, nickel, or titanium, which is then topped with a pure carbon source like graphite or diamond powder.

Next, the manufacturer begins to heat the cell, heating the top of the cell significantly more than the bottom. The cell heats the metal solvent until it melts; the metal solvent acts as a filter, allowing the carbon at the top to travel down into the cooler part cell, where it meets the diamond seed. The diamond seed is the blueprint for the way the manufacturer wants the carbon atoms to arrange, and does not have to be natural diamond.

HPHT or CVD grown diamonds can be used as a seed crystal, as the atom structure is the same across all types – strong diamond. The carbon atoms from the source find the strong diamond seed blueprint, and begin arranging and attaching to the diamond seed, causing growth.

Figures 9[31] and 10[32] show how diamond manufacturers mimic the second key condition of natural diamond growth: pressure. Figures 9 and 10 shows cubic presses; 6 anvils simultaneously push onto a heating cell to apply massive amounts of pressure. There are other types of presses, however cubic presses are the most popular throughout the industry, due to the efficiency and  customizability. Cubic presses can come in massive sizes to accommodate large-volume cells; the entire apparatus is often much bigger than a person. The entire process can take anywhere from days to weeks, depending on the efficiency of the process, and the desired diamond size.

The second method diamond manufacturers use to grow diamonds for jewelry is called “Chemical Vapor Deposition” (CVD), which is a gas-phase chemical reaction. Figure 11 is a diagram of the chamber and components needed to grow a diamond using the CVD method. Just like in the HTHP process, a diamond seed is needed, which is termed “substrate” in the diagram. However, unlike the HTHP process which takes place in a high-pressure environment, this reaction takes place in a vacuum chamber below atmospheric pressure.

Hydrocarbon gas is mixed with pure hydrogen gas and then microwaves are introduced to generate plasma to stimulate the hydrogen and hydrocarbon bonds to bounce around at high speeds. The microwave frequency used is actually the same as used in a typical microwave oven, although you can’t grow diamonds in your kitchen microwave. The diamond seed is placed on a platform and heated from below, although not as much as with the HTHP method.[33] A diamond seed is a pure carbon structure, but the edges of the carbon structure are terminated by hydrogen atoms.

To add more carbon atoms to the diamond seed, the terminating hydrogen atoms need to be removed first, which is the purpose of the pure hydrogen gas. Figure 12 is a picture of what this process looks like. Hydrogen atoms like to be in pairs, so the singular hydrogen atoms will “clean-up” the edges of the carbon seed by picking up the terminating hydrogen atoms, leaving space for a hydrocarbon atom to take its place. Then the process repeats atom by atom, layer by layer, as the diamond grows. The time required to grow a diamond using the CVD can be anywhere from days to weeks, depending on the specifications of the manufacturer.

Diamond manufacturers who use either of these diamond growth methods are in greater control over the diamond. Because a diamond manufacturer is able to control the size, or carat weight, he also has absolute freedom in the desired cut. With two of the 4C’s now controllable through the mere growth process, the other two are within reach – Color and Clarity. 

Natural diamonds and synthetic diamonds, can be treated with heat or radiation to produce or change the color. Depending on the inclusions/impurities in a natural diamond, a manufacturer with the right knowledge and tools can create a variety of colors but cannot reproduce the exact same color on any diamond every time. Synthetic diamonds provide diamond manufacturers with the ability to control color at more precise levels. The number and types of atoms in a growth chamber can be modified to create different results. If a diamond manufacturer wanted to create a blue diamond, it would add boron atoms into the chamber (HTHP more common than CVD), or it would add nitrogen to grow a yellow diamond[34].

Synthetic diamond manufacturers who produce fancy gem quality diamonds for jewelry have specific formulas in order to create the same color diamond every time.[35] A CVD growth will often result in a brownish tint when the growth process is sped up. This is a result of vacancy clusters and non-diamond carbon inclusions. However, some diamond manufacturers who wish to grow colorless diamonds with CVD will cause this intentionally to shave time off the growth process, as the CVD grown diamond can be quickly treated under HTHP to remove the color.[36]

Natural diamonds have impurities called inclusions that occur when a diamond grows around mineral grains during its formation stage. In HTHP grown diamonds, traces of the metal solvent may get trapped within, creating inclusions that look different than the minerals trapped in natural diamonds. CVD diamonds are usually higher clarity, as there’s no metal solvent to trap. Non-diamond carbon inclusions can detriment clarity, but CVD inclusions are not common, especially when conducted correctly.[37] As illustrated, a diamond manufacturer now has perfect control over color and clarity.

Now, let’s assume the diamond manufacturer we’re talking about is Lightbox, a synthetic diamond manufacturer under DeBeers; it grows, cuts, and places its diamonds into jewelry using the CVD method. As discussed above, this means that Lightbox has complete control over the 4C’s. Lightbox can grow the same diamond, with the exact same size, color, and relative clarity, to be cut the same way each time. To explore how this control translates to IP protection, let’s have an exercise through a hypothetical.

Suppose Lili Jewelry has licensed the Meteor Cut trademark and design and utility patents to Lightbox for its creation of its flagship synthetic diamond: The Blue Moon Diamond. The diamonds are CVD grown in Lightbox laboratories and are cut using the Meteor Cut. After cutting and polishing, each diamond weighs 5 carats every time. In the CVD growth chamber, Boron is added 300 parts per billion to consistently create the same light blue color, and the clarity is always graded at either VVS1 or VVS2. We will be using this fictional Blue Moon Diamond as a starting point for the following discussion on synthetic diamond protection.

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Endnotes

1. https://4cs.gia.edu/en-us/diamond-cut/

2. https://www.gia.edu/gia-about/4Cs-Cut

[3] U.S. Patent No. 10,448,713

[4] https://www.gia.edu/gia-about/4Cs-Cut

[5] Mike Breeding, The Evolution of Laboratory-Grown Diamond Evaluation at GIA | GIA Knowledge Sessions Webinar, (Oct. 1, 2020), http://www.youtube.com/watch?v=sZ1keCKdv_U

[6] https://4cs.gia.edu/en-us/diamond-cut/

[7] http://gemologyproject.com/wiki/index.php?title=File:SRB800px2.JPG

[8] USPTO.gov/web/offices/pac/mpep/s1502.html (citing)  (35 U.S.C.S. § 101).

[9] Thomas Overton, Legal Protection for Proprietary Diamond Cuts, 38 Gems & Gemology 310, 314 (2002)

[10] U.S. Patent No. 5,970,744

[11] U.S. Patent No. 4,020,649

[12] https://www.tiffany.com/search/?q=Lucida%C2%AE

[13] https://www.uspto.gov/web/offices/pac/mpep/s1502.html

[14] U.S. Patent No. 10,448,713

[15] Thomas Overton, Legal Protection for Proprietary Diamond Cuts, 38 Gems & Gemology 310, 314 (2002)

[16] U.S. Patent No. D650,306

[17] Thomas Overton, Legal Protection for Proprietary Diamond Cuts, 38 Gems & Gemology 310, 314 (2002)

[18] Id.

[19] Lilijewelry.com/specialty/lili-diamond-cuts/

[20] Two Pesos, Inc. v. Taco Cabana, Inc. 505 U.S. 763 (1992).

[21] Wal-Mart Stores, Inc. v. Samara Bros., Inc. 529 U.S. 205 (2000).

[22] Id.

[23] Traffix Devices, Inc. v. Marketing Displays, Inc. 532 U.S. 23 (2001)

[24] Pers. Comms, Thomas Overton. LinkedIn, 2/12/2021, 4:56 p.m.

[25] Yurman Design, Inc. v. PAJ, Inc., 263 F.3d 101, 109 (2d Cir. 2001) (citing Feist & U.S. Cons. Art. 1 § 8 , cl. 8).

[26] https://www.langantiques.com/university/rose-cut/

[27] Shor, Russel. “A Diamond Smorgasbord.” Jewelers Circular Keystone Aug. 1997: 80+. Business Insights: Global. Web. 12 Feb. 2021.

[28] Mazer v. Stein, 347 U.S. 201 (1953)

[29] Mike Breeding, The Evolution of Laboratory-Grown Diamond Evaluation at GIA | GIA Knowledge Sessions Webinar, (Oct. 1, 2020), http://www.youtube.com/watch?v=sZ1keCKdv_U

[30] Pressure ~5-6 GPa (equivalent to 150 – 190 km dept in the earth) with a temperature of anywhere from -~1300-1600 degrees Celsius, can take anywhere from days to weeks.

[31] Mike Breeding, The Evolution of Laboratory-Grown Diamond Evaluation at GIA | GIA Knowledge Sessions Webinar, (Oct. 1, 2020), http://www.youtube.com/watch?v=sZ1keCKdv_U

[32] https://www.hatchbrilliance.com/diamond-education/article/cvd-and-hpht-diamonds-explained-3

[33] About 300 degrees Celsius lower

[34] Low Boron 0-100 parts per billion: colorless. Higher Boron (>~100 ppb): blue

[35] Pers. Comms. GIA Librarian

[36]  Mike Breeding, The Evolution of Laboratory-Grown Diamond Evaluation at GIA | GIA Knowledge Sessions Webinar, (Oct. 1, 2020), http://www.youtube.com/watch?v=sZ1keCKdv_U

[37] Id.

Chief Justice G. Richard Bevan

Published March/April 2022

I thank you, on behalf of Idaho’s third branch of government, for allowing me to address you today. This speech offers me a chance to reflect and report on the past year, while providing you with a road map of the courts’ needs going forward.

I come here on behalf of not only my fellow justices and Court of Appeals judges, who are with me in the gallery, but also the hundreds of judges, local court clerks, administrative staff and other state and county personnel who help our system run. I thank them for their dedicated service and willingness to continue laboring under less-than-ideal conditions this past year. As I’m sure you recognize, we have faced challenges in 2020 and 2021 unlike anything we have seen for a century. But through it all, because of the dedication of so many devoted people, the rule of law remains alive and well in Idaho.

And that is what we continue to bring to this constitutional partnership with you. While in some parts of this country it’s not uncommon to find the branches of government at odds with each other, in Idaho, we have long remained unwavering in our commitment that as co-equal branches, we strive together to support and enable the freedom, happiness and security of our people.

Our recent experiences are not altogether new in Idaho’s history. In fact, our state courts have evolved with the times, and our friends in the Legislature have been a part of making this happen. We can go back almost a century to the 1920s, when legislation created small claims courts and expanded the number of justices on Idaho’s Supreme Court.

In 1949, the Legislature created the position of coordinator of the courts, an extra role assigned to a sitting justice to help manage administrative needs across our judicial districts. That position was a first step in what led to the court reforms of the 1960s: our unified court system, the magistrate division, the Idaho Judicial Council and the Administrative Office of the Courts.

In the 1970s, Idaho was among the first states in the nation to have automated tracking of trial and appellate cases. In the eighties you funded what became our first electronic case management system, ISTARS. And in the nineties, with your help, we first piloted the treatment courts that have grown to include drug courts, mental health courts, DUI courts, and veteran’s treatment courts. Idaho’s treatment courts are among the nation’s finest – providing our most valuable tools to prevent recidivism.

This year marks the 55th anniversary of our Administrative Office, which provides invaluable assistance supporting the Court’s constitutional role to administer our statewide court system. The employees of our Administrative Office focus first and foremost on supporting our local courts. Especially in my current role, I am extremely grateful for their work.

Throughout these decades, even going to “court” has had a flexible meaning at times. As one example, Idaho newspapers record multiple instances of court being held on trains passing between cities more than a century ago. We find ourselves today again innovating to meet the needs of society, holding court online or using space at local fairgrounds to enable jury selection in a safe and prudent manner.

History also records examples of Idaho courts having to postpone or adjust their work during the influenza pandemic of 1918 to 1920. I am grateful in this modern age to have help from technology — also funded by you over the past five years — which has helped us maintain our courts and keep them open to the public.

I offer these examples to show that the past two years’ challenges, while unique, are not entirely novel to our state government. The judiciary has always worked to build traditions that support the rule of law while adapting as society, times, and technology grow. Our continued ability to blend established process with the needs of modern Idaho have ensured that throughout the past two years, the courts remained open to all who wished to file or respond to a claim. I am thus extremely proud of how our courts have responded to the crisis.

Many people who interact with Idaho’s courts do not do so by choice. Defendants, jurors and witnesses are examples of people who are ordered to participate in a court proceeding. Judges, clerks and other staff keep the whole system moving. In order to balance the interests of those required to be in such places without a choice, with those who choose to come to a courthouse, the Idaho Supreme Court developed its COVID-19 emergency orders. These orders act both to keep courts open and accessible, while also protecting the health and safety of those who have no choice about whether they must appear.

These steps took different forms throughout 2021. During the worst waves of the virus, my fellow justices and I ordered uniform precautions statewide, including moving most court proceedings online and adjusting various rules about how hearings are conducted. For much of the year, we were pleased to be able to give judicial districts more flexibility to manage local conditions — and this is how courts in your areas are operating today.

Importantly, these orders changed the ways that hearings were conducted — but they did not halt court business.

In 2019, before the pandemic, judges in Idaho’s state courts presided over more than 300,000 court hearings of all types. In 2021, they conducted nearly as many, and conducted them safely.

The only activities that were completely paused during parts of the year were jury trials and grand jury proceedings. These gatherings represent our highest-risk activities for COVID-19, with large groups of people gathered for days or weeks at a time in small spaces. As a result, such proceedings merited special caution. That said, it’s important to realize that hundreds of trials still took place across this state in 2021 at times when the health guidance allowed them.

Much focus has been put on orders delaying trials, and understandably so. But even before the pandemic, very few cases in Idaho courts actually resulted in a trial. On average, 2% or less of Idaho criminal cases went to trial in 2018 and 2019, a percentage that aligns with patterns in other states. Cases resolve through many ways other than trial: the parties choose to settle, they receive a final decision based on the law, or the party who filed the case chooses to dismiss it.

Some case types don’t include a trial at all, like adoptions: Idaho’s judges handled 820 of those this past year. Courts also managed thousands of open guardianship and conservatorship cases — more than 9,500 were open at the time we assembled our annual report to you.

None of this has been simple. We expect it will take at least a couple of years to fully address the effects of the pandemic. Idaho’s courts still face a dramatically higher number of unresolved cases compared to before COVID-19 reached this state. As of December 2021, that included more than 41,000 pending criminal cases, an increase of 29% from December 2019. On the flipside, pending civil caseloads have declined almost 6% over that same period.

We have gotten frequent questions about this backlog since I discussed it at this time last year. It is important to understand that there are many reasons a court case doesn’t move forward. With the unique circumstances that affect each case, it is hard to say what the primary reasons are. We know that overall, the number of pending cases has increased during the pandemic; that it grew more in the pandemic’s first year than in its second; and that the growth has not been uniform throughout Idaho’s 44 counties. Regardless, we are committed to tackling this challenge even as the pandemic continues.

Technology continues to offer us solutions. Over the past year, we’ve expanded and refined our investment in videoconferencing and related hardware, allowing courts to hear cases remotely and to include participants both within and without courtrooms. Our livestreaming directory can enable access to public hearings when the public cannot attend in person. Judges, clerks and administrative staff have found it necessary to work from any location and respond to the ebb and flow of the pandemic; we have invested in technology to give them as much flexibility as possible while ensuring reliable, secure courts.

In Ada County we tested an alternate solution to resolve eviction cases outside of court called online dispute resolution. While Idaho’s short statutory timeline for evictions posed a challenge to this tool’s effective use, we continue to examine better ways to use technology to enable parties to resolve their disputes.

The Guide & File program allows people to complete and file many court forms themselves over the internet, including for a civil protection order, divorce without children, minor guardianship, or small claims. As you may imagine, this tool has become markedly more important during the pandemic; in fiscal year 2021, more than 7,500 people used it to open an Idaho court case.

Our guardianship and conservatorship monitoring coordinators have found that with the use of remote hearings, they actually have less need to travel and find themselves in greater demand by the courts because of their increased availability over videoconference. Similarly, group and individual counseling services for our treatment courts became available online within weeks of COVID-19 arriving in Idaho and have continued to offer increased flexibility for participants of those courts.

Investments in technology have made it possible to keep courts operating over the past two years, but our foresight will benefit the people of Idaho long after this pandemic has passed. We fully expect that the benefits of technology and the time savings it provides will continue as one silver lining to the otherwise dark cloud of the pandemic. But the realities of financing such an undertaking require that we bring you a request to support investments in technology in dedicated ways as we continue to meet our constitutional duties.

The Idaho Supreme Court’s technology system is mainly supported through the Court Technology Fund. The money in that fund mainly comes from legislatively established fees imposed in criminal and civil cases. The cost of providing technology to support Idaho’s courts has significantly increased over the last five years, far outpacing the collected fees designed to support these needs. Simply put, revenues in the dedicated fund are not keeping pace with the cost of supporting court technology operations across the state — especially when those operations will be in heavy demand to address the pending cases I described earlier.

The Court is examining various solutions to this issue. One involves revisiting certain costs related to our electronic filing system. This year the Court requests a one-time General Fund appropriation to pay the cost of electronic envelope fees within that filing system. This short-term appropriation will provide the Court time to research and present a longer-term solution, likely transitioning some or all of those costs to parties who use the system.

Technology supporting remote work and proceedings is not a temporary need, but an essential component to Idaho’s courts becoming more efficient and flexible. Because some form of virtual court proceedings will need to continue well into the future, there is no expectation that associated costs will subside. Indeed, in 2021, Idaho’s courts held hundreds of thousands of hearings via Zoom, a platform that was not planned or budgeted for when it was implemented. At the same time, greater use of technology and changes in the threat landscape have led to greater cybersecurity concerns for state courts throughout the nation — Idaho included.

To address these concerns, the Court requests a one-time appropriation from the Coronavirus State and Local Fiscal Recovery Fund of the American Rescue Plan Act (ARPA) of 2021 with carryover spending authority over the next three years. This funding would support continued development of our court technology infrastructure and cybersecurity, while preserving the Court Technology Fund to support ongoing costs.

Idaho’s courts offer many services that benefit both case parties and the state of Idaho, supplying additional support that can dramatically improve outcomes for all involved. These include our family courts, treatment courts and other programs.

Evaluations of Idaho’s felony drug courts, DUI courts, and mental health courts have shown results on par with national averages, reducing recidivism between 10 and 15%. Some of Idaho’s treatment courts serve as national learning centers and are viewed as national leaders for how to properly engage with court participants. Programs focused on domestic violence cases also decrease those incidents, and services for children and parents involved in divorce or custody cases reduce conflict within Idaho families.

For fiscal year 2023 the Court seeks increased spending authority to expand and improve these services. Each year, family court service offices spend their full allocated amount but report that there are still many families who go unserved. We propose to increase this amount of direct service funding by 20% over the next two years. We also propose establishing domestic violence courts in the two judicial districts that do not currently have them, and we seek to put more state resources into treatment court coordination, allowing the courts more options in determining the number of treatment courts and participant caps throughout the state. These actions would be funded by increased spending authority for existing revenues in the drug court, mental health court and family court services fund.

Idaho’s courts provide funding for treatment services for treatment court participants that are unable to be funded through either private insurance or Medicaid. Over the last year, other state agencies have increased reimbursement rates for some treatment services beyond the levels used to estimate the courts’ planned costs. Parity in these rates is vital to ensuring court clients can access the treatment they need. The Court requests increased spending authority in the Substance Abuse Treatment dedicated fund to ensure this parity.

The Court also seeks spending authority from this fund to support newly adopted Best Practice Standards for Treatment Courts. Research shows these actions improve outcomes for treatment court participants. Investing in them will reduce future substance abuse and recidivism among those participants. The fund holds sufficient revenue for both these requests without more demands on taxpayers.

Some services are necessary to help people access the courts. The courts have an obligation to provide access for people for whom English is not their customary language. In this next fiscal year, the Court requests General Fund support for language access services in the Third, Fourth and Sixth Judicial Districts, all of which have identified a need for funding based on local demand — a need we expect to grow as we work through more of our pending caseload. In Ada County alone, an average of 3,600 requests for interpreter services in 42 different languages have been made over the past two years.

The demand trends I describe here also affect the basic administration of the courts.

The trial court administrators, or TCAs, in our judicial districts perform vital work helping the Supreme Court with our constitutional oversight of our unified and integrated judicial system. Under the direction of their administrative district judges, the TCAs work with judges, elected county officials, attorneys and others to maintain efficient court operations. In most judicial districts they cover multiple counties and vast geography. They are tasked to act as the courts’ liaisons in each county throughout the district, managing judicial disqualifications in the magistrate court, appropriate staffing of court reporters, networks of treatment providers for the treatment courts, and many other necessities.

Their work is thus both legally complex and time-intensive — and it has become clear that a single person can no longer accomplish all the necessary tasks to function adequately. As such, our administrative judges recently identified funding a deputy TCA in each district as their top budget priority for fiscal year 2023. The Court requests General Fund support to create these positions.

Along with new deputy TCAs, we again ask for additional judicial resources. Last year, you funded additional judges for the Third Judicial District. Now we ask your help for the Fourth District to add one district judge and court reporter to be chambered in Elmore County, and two magistrate judges to be chambered in Ada County.

In fiscal year 2021, the Fourth District had 1,628 cases per magistrate judge — a volume of work that requires magistrate judges elected in Boise and Valley counties to spend two days a week presiding over Ada County cases. The level of administrative work in the Fourth District also means its administrative district judge cannot carry a full traditional caseload. The Fourth District would like to expand its treatment courts in response to need but cannot do so without additional judicial support.

Meanwhile, we still face challenges in judicial recruitment. My predecessors have told you for some years now about the retirement and recruitment trends that challenge Idaho’s judiciary. Recruitment for district judges remains a particular challenge. We are preparing to survey members of the State Bar about their interests in, and concerns about, becoming a judge. Past surveys have repeatedly identified as a primary issue that judicial salaries are not competitive enough with attorneys in the workforce. Judicial salaries sufficient to attract the best and the brightest must be addressed if we are to recruit such individuals to the bench.

Idaho Code requires separate legislation for any change in judicial compensation. The Court for fiscal year 2023 asks that you consider at least the same percentage of change in compensation for judges as you do other state employees, especially in consideration of the role compensation plays in the recruitment difficulties for district judge positions in the state.

While recognizing our need for additional human capital to function at our best, we also acknowledge that collaboration across our branches is increasingly important to our duties for the people of Idaho. Previously, our Court joined you in establishing the Idaho Behavioral Health Council to find better solutions for those in this state who live with mental illness and addiction. I was proud to see the release of the Council’s strategic plan this past year, and I can report the courts have been active in starting to implement our areas of the Council’s top priorities.

The Council this session endorses legislation to improve Idaho’s civil commitment laws. This bill reduces ambiguity and creates more consistent processes across the state. It also addresses funding questions stemming from legislation passed last year. It is just a start; next year, we look forward to bringing you a proposal, now in development, on earlier engagement with individuals who end up in the justice system.

Judges this spring will help to lead service mapping projects in three counties, gathering community stakeholders to identify gaps in behavioral health care for people involved in the criminal justice system and in intercepting those who need that care. This work should give those communities the information they need to respond more effectively to such cases and address them earlier. Assuming these initial projects succeed, a court-sponsored facilitator training will enable them to be repeated in the other regions across the state.

This topic is a meaningful one for the judiciary. Judges have spontaneously reached out to provide feedback on Idaho’s current system, and have volunteered their time to work on projects related to the Council. Our annual fall judicial education conference focused heavily on creating behavioral health expertise within the judiciary, reinforced by a series of webinars with nationally recognized speakers on this topic. I hope you have seen the same interest in the Legislature.  I can pledge the Court’s continued support for our partnership.

Other important work to improve our courts continues, regardless of the pandemic. We continue to invest in our electronic case management system; we performed a key upgrade last year providing greater efficiencies and resolving various software concerns. Just this month we relaunched our public court data website to provide a more comprehensive view of information spanning court activities and finances. The website gives independent access to court financial and filing data and is part of our commitment to operating transparent, accessible courts.

We are working to better tell our story and help Idahoans understand the role of the Judicial Branch. Indeed, the founders of this country recognized that an educated populace is necessary to maintain our system of government. Public education on topics such as the courts helps our citizens understand the third branch of government and their role in sustaining it. As James Madison said, “The advancement and diffusion of knowledge is the only guardian of true liberty.”

The Court helps support several civic education efforts including those focused on teaching students, as our leaders for tomorrow, about our government. Often this is through helping to judge contests like last year’s Attorneys for Civic Education Civics Contest, which in its first year received an exceptional number of essays by middle school students about constitutional rights and their related responsibilities.

For the Idaho Law Foundation’s Law Day Podcast Contest, high school students submitted 5- to 10-minute podcasts on topics such as the relationship between law and morality, and on the application of American civil liberties throughout U.S. history. We partner regularly on educational institutes benefitting teachers and journalists, and we are working this year to build additional civic education programs within the courts.

It benefits us all when Idahoans learn more about their government: how it works, how to engage. Which brings me back to this annual gathering here. Together, each January we find ways to better serve the people and maintain a court system that uniquely reflects Idaho. We appreciate the opportunity once again to share our vision with you.

We are living through an extraordinary time. But together, we have seen Idaho and its people through such times before. Abraham Lincoln is quoted as saying, “You cannot escape the responsibility of tomorrow by evading it today.” I have faith and confidence that we will continue to meet the demands of our tomorrows as we accept the challenges before us today — just like those who have come before.

Thank you for joining us to make it happen.

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Kolby K. Reddish

Published March/April 2022

One of the things I enjoy immensely about receiving my copy of The Advocate every month and my membership in the Idaho State Bar is the way that we are able to learn from each other’s unique perspectives, experiences, and positions. Nothing excites me more than listening to lawyers from different practice areas discuss the developments and evolution of those areas. With acknowledgement that some of the “more seasoned” members of the Bar or Bench may be better equipped to present a guide on statutory interpretation, I am eager to share lessons that I have learned thus far in my career.

This article examines the following keys in the Idaho Supreme Court’s statutory interpretation analysis: the plain meaning rule and ambiguity, determining legislative intent, as well as several other canons of construction. In some ways, these keys can be understood as progressive steps in resolving any statutory interpretation issue. For example, a typical statutory interpretation case begins with examining the plain meaning of the statute. If the statute is found ambiguous, legislative intent and the other canons must be applied to construe the statute. This article is named for the 2020 Idaho Supreme Court case of Fell v. Fat Smitty’s, LLC, that serves as a reminder of the importance of the principles of statutory construction.[1] Let’s explore those steps in detail.

Plain-Meaning Rule

We begin with the plain meaning rule, which examines the plain language of the statutory scheme at issue. As the Supreme Court has repeatedly held: “Interpretation of a statute ‘must begin with the literal words of the statute; those words must be given their plain, usual, and ordinary meaning; and the statute must be construed as a whole. If the statute is not ambiguous, this Court does not construe it, but simply follows the law as written.’”[2]. For a term that is undefined in the statute or a related provision, the Court turns to ordinary dictionaries to give the term its plain meaning.[3] The Court has strongly adhered to this plain meaning rule since the 2012 decision of Verska v. Saint Alphonsus Regional Medical Center.[4] Review of the reasoning of this case helps outline the Court’s reliance on the plain meaning rule.

In Verska, the Court was faced with the question of the Court’s authority to modify the plain language of a statute because the plaintiffs argued that the result of the unambiguous language would lead to an absurd result.[5] The plaintiffs contended that “[t]he literal wording of a statute cannot be honored if it creates unreasonable, absurd results” based upon dicta from past decisions of the Court.[6] The Court rejected this argument and repudiated this language on the basis of the principle of the separation of powers.[7] As the Court explained: “we have never revised or voided an unambiguous statute on the ground that it is patently absurd or would produce absurd results when construed as written, and we do not have the authority to do so.”[8]

As the Court has stated: “The most fundamental premise underlying judicial review of the legislature’s enactments is that . . . the courts must assume that the legislature meant what it said.”[9] On this basis, the Court disavowed any language in previous cases that indicated that the stated intent of the Legislature[10] or policy concerns[11] could control over the unambiguous language of a statute. Thus, in interpreting statutory or constitutional provisions, the plain meaning primarily controls.

As Applied to Court Rules

The plain meaning rule applies to limit the Court’s authority to interpret statutes due to operation of separation of powers concerns. “The public policy of legislative enactments cannot be questioned by the courts and avoided simply because the courts might not agree with the public policy so announced.”[12] After all, as the Court has recognized: “If a statute is unsound or the policy behind it unwise, the power to correct the statute rests with the Legislature, not the judiciary.”[13]

However, the plain meaning rule does not strictly apply to the interpretation of Court rules, largely because the same separation of powers concerns do not apply to the Court revising or interpreting its own directives rather than those of the Legislature. The Court held accordingly in Montgomery: “We are not constrained by the constitutional separation of powers when interpreting rules promulgated by the Court. Today we make it clear that while the interpretation of a court rule must always begin with the plain, ordinary meaning of the rule’s language it may be tempered by the rule’s purpose. We will not interpret a rule in a way that would produce an absurd result.”[14] Thus, in interpreting a court rule the plain meaning of the words is still an important consideration, but not absolutely controlling as it is for interpreting statutes. Instead, the courts will interpret the plain language in ways that avoid absurd results.

The Court’s guiding principle in determining what qualifies as an “absurd result” seems to be those interpretations that would violate the Idaho Criminal Rules’ aspiration “for the just determination of every criminal proceeding.”[15] In other words, all court rules should be construed so as “to secure simplicity in procedure, fairness in administration and elimination of unjustifiable expense and delay.”[16] The Court has explicitly extended this reasoning in construing the Idaho Rules of Family Law Procedure in Kelly v. Kelly.[17] Accordingly, it seems that the same analysis in Montgomery would apply equally in civil actions as well, though the Court has yet to so hold.

To see an interesting contrast between the way the application differs for statutes and rules, examine the cases of State v. Osborn and State v. Chambers.[18] In Osborn, the majority of the Court followed the plain language of the statute for calculating credit for time served despite the undesirable effect: “The fact that we may dislike the result is of no moment. We will not interpret the plain language of a statute simply to reach a more desirable result.”[19]

However in Chambers, the Court treated the language of a court rule very differently. In Chambers, the Court examined the effect of the plain language of Idaho Rule of Evidence 412.[20] The Court noted that the plain language of the rule limited testimony to false allegations of sex crimes “made at an earlier time[.]”[21] In the case, the parties offered different interpretations of what constituted an “earlier time” within the context of the rule.[22] Ultimately, the Court resolved the question, after citing to Montgomery, by stating: “The most logical interpretation of Rule 412(b)(2)(C) is that it contains no temporal requirement.”[23]

The takeaway for us practitioners is that the Court seems willing to construe the language of Court rules contrary to their plain language to avoid undesirable results, but is unwilling to do so when interpreting statutes.

Applicable Test for Administrative Rules

Finally, the Court has articulated a separate set of rules applicable to the pervasive world of administrative law. Rather than simply adopting the Federal doctrines,[24] our Court has recognized that: “it is this Court’s responsibility to determine the validity of [administrative] rule[s].”[25]

To accomplish this test, the Court has espoused a four-prong test originally announced in J.R. Simplot Company v. Idaho State Tax Commission.[26] This test embodies four considerations. “First, we must determine if the agency has been entrusted with the responsibility to administer the statute at issue. Second, the agency’s statutory construction must be reasonable. Third, we must determine whether the statutory language at issue does not expressly treat the precise question at issue. Finally, we must ask whether any of the rationales underlying the rule of deference are present.”[27]

If the four-prong test is satisfied, then courts will give “considerable weight” to the administrative agency’s interpretation of the statutory provision.[28] The nuances of the way this test has been applied are better suited for comprehensive exploration in a standalone article, but all practitioners should be aware of the deference that the Simplot test affords administrative agencies.

Ambiguity and Determining Legislative Intent

A statute cannot have the plain meaning rule applied where the language is ambiguous. In that sense, the plain-meaning rule and ambiguity are opposite sides of the same coin. “A statute is ambiguous where the language is capable of more than one reasonable construction.”[29]

“Ambiguity is not established merely because different interpretations are presented by the parties. If that were the test then all statutes whose meanings are contested in litigation could be considered ambiguous.”[30] “[A] statute is not ambiguous merely because an astute mind can devise more than one interpretation of it.”[31] If a statute is determined to be ambiguous, courts interpret the statute in a way that accomplishes the Legislature’s intent.[32]

The literal words of the statute still provide the best guide to legislative intent, highlighting the continued importance of the plain-meaning rule throughout the interpretative process.[33] When the Court must further determine legislative “intent, we examine not only the literal words of the statute, but also the reasonableness of proposed constructions, the public policy behind the statute, and its legislative history.”[34] Determining a single legislative intent poses a unique challenge precisely because one of the beauties of the Legislature is that it is full of many different voices, viewpoints, and perspectives.

For example, in State v. Clarke, the Court turned to the intent of the framers of the Idaho Constitution to determine legislative intent.[35] This required the Court to examine “the practices at common law and the statutes of Idaho when our constitution was adopted and approved by the citizens of Idaho.”[36] Sometimes however, determining a singular intent is difficult. Take for example, the paired cases of Idaho Telephone Company v. Baird and Idaho State Tax Commission v. Simmons.[37]

Both of these cases turn to the debates of the Idaho Constitutional Convention to answer questions regarding the power of the Legislature in granting exemptions from property tax and come to exactly opposite answers based upon review of the material.[38] These cases, examined as a pair, demonstrate the inherent difficulty and challenge in identifying one singular legislative purpose. Reasonable minds can examine the same legislative history and interpret its purpose differently.

Other Canons of Construction

Finally, in applying the legislative intent, the Court has cited several different canons of statutory construction that can be applied to find the proper meaning. For a practitioner, it would be recommended to ensure that your argued interpretation satisfies more of these guiding canons than your opponent’s construction does. From that point of view, here are several canons that you should become familiar with for solving any statutory interpretation problem. Keep in mind that these rules are not unimpeachable rules of law, simply guides to help accomplish legislative intent.[39] Once you do, these are invaluable tools for resolving any statutory interpretation dispute:

• Noscitur a sociis or “a word is known by the company it keeps.”[40] This maxim works to help define terms by understanding those defined terms around them.[41]
• Expressio unius est exclusio alterius is the maxim “where a constitution or statute specifies certain things, the designation of such things excludes all others.”[42] This maxim can be an especially useful tool when comparing the demands of two different statutory provisions.
• Ejusdem generis provides that “where general words of a statute follow an enumeration of persons or things, such general words will be construed as meaning persons or things of like or similar class or character to those specifically enumerated[.]”[43] This maxim is another useful tool for providing additional context to an interpretation.
• Finally, in pari materia advises that “statutes relating to the same subject—or those that are in pari materia—must be construed together.”[44] This maxim can be particularly helpful when attempting to divine the way that two statutory provisions work in concert.

Of course, this list is not intended to be definitive or exhaustive. However, I hope that the cases provided demonstrate how the Court applies these principles and will be helpful to you as you work on your next statutory interpretation problem or case.

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Endnotes

[1] 167 Idaho 34, 467 P.3d 398 (2020).

[2] Florer v. Walizada, 168 Idaho 932, 489 P.3d 843, 846 (2021) (quoting State v. Ambstad, 164 Idaho 403, 405, 431 P.3d 238, 240 (2018))

[3] Curlee v. Kootenai Cty. Fire & Rescue, 148 Idaho 391, 398–400, 224 P.3d 458, 465–67 (2008).

[4] 151 Idaho 889, 265 P.3d 502 (2011).

[5] Id. at 894, 265 P.3d at 507.

[6] Id.

[7] Id. at 896, 265 P.3d at 509.

[8] Id. (emphasis added).

[9] Id. at 894–95, 265 P.3d at 507–08 (emphasis added).

[10] See Idaho Dep’t of Health and Welfare v. Doe, 151 Idaho 300, 256 P.3d 708 (2011) and State v. Doe, 147 Idaho 326, 208 P.3d 730 (2009).

[11] State, Dep’t of L. Enf’t v. One 1955 Willys Jeep, V.I.N. 573481691, 100 Idaho 150, 595 P.2d 299 (1979), abrogated by Verska, 151 Idaho 889, 265 P.3d 502.

[12] Verska, 151 Idaho at 896, 265 P.3d at 509 (quoting State v. Village of Garden City, 74 Idaho 513, 525, 265 P.2d 328, 334 (1953)).

[13] State v. Montgomery, 163 Idaho 40, 44, 408 P.3d 38, 42 (2017) (citing Verska)

[14] Id.

[15] Id.

[16] Id. (citing I.C.R. 2(a)).

[17] 165 Idaho 716, 724, 451 P.3d 429, 437 (2019) (citing I.R.F.L.P. 101).

[18] 165 Idaho 627, 449 P.3d 419 (2019); 166 Idaho 837, 465 P.3d 1076 (2020).

[19] 165 Idaho at 632, 449 P.3d at 424.

[20] 166 Idaho at 842–43, 465 P.3d at 1081–82.

[21] Id. at 842, 465 P.3d at 1081 (citing I.R.E. 412(b)(2)(C)).

[22] Id. at 842–43, 465 P.3d at 1081–82.

[23] Id. at 843, 465 P.3d at 1082 (emphasis added).

[24] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).

[25] Mason v. Donnelly Club, 135 Idaho 581, 583, 21 P.3d 903, 905 (2001).

[26] 120 Idaho 849, 820 P.2d 1206 (1991).

[27] Mason, 135 Idaho at 583, 21 P.3d at 905.

[28] Id.

[29] Porter v. Bd. of Trustees, Preston School Dist. No. 201, 141 Idaho 11, 14, 105 P.3d 671, 674 (2004).

[30] Bonner Cty. v. Cunningham, 156 Idaho 291, 295, 323 P.3d 1252, 1256 (Ct. App. 2014).

[31] Ada Cty. Prosecuting Attorney v. 2007 Legendary Motorcycle, 154 Idaho 351, 354, 298 P.3d 245, 248 (2013).

[32] State v. Doe, 140 Idaho 271, 274, 92 P.3d 521, 524 (2004).

[33] State v. Doe, 147 Idaho 326, 328, 208 P.3d 730, 732 (2009).

[34] Id.

[35] 165 Idaho 393, 397, 446 P.3d 451, 455 (2019).

[36] Id.

[37] 91 Idaho 425, 423 P.2d 337 (1967); 111 Idaho 343, 723 P.2d 887 (1986).

[38] Baird, 91 Idaho at 430, 423 P.2d at 342; Simmons, 111 Idaho at 348, 723 P.2d at 892.

[39] Hewson v. Asker’s Thrift Shop, 120 Idaho 164, 167, 814 P.2d 424, 427 (1991).

[40] State v. Schulz, 151 Idaho 863, 867, 264 P.3d 970, 974 (2001).

[41] State v. Sams, 160 Idaho 917, 920 n.3, 382 P.3d 366, 369 n.3 (Ct. App. 2016).

[42] Fat Smitty’s, 167 Idaho at 38, 467 P.3d at 402.

[43] State v. Hart, 135 Idaho 827, 831, 25 P.3d 850, 854 (2001).

[44] In re Adoption of Doe, 156 Idaho 345, 350, 326 P.3d 347, 352 (2014).

Olivia N. Ford

Gwen K. Sweesy

Published March/April 2022

Boomers don’t understand new technology.[1] Generation X are apathetic.[2] Millennials are killing department stores.[3] Generation Z canceled skinny jeans and side parts.[4] It seems every week there is a new gripe from one generation about another. This isn’t just in popular culture either, as these labels and stereotypes have the potential to bleed over into the legal profession and workplace.[5] It is time we reevaluate how we in the legal profession use and view these generational labels and decide if they offer any valuable information or are just a way to cut down those outside our respective “in-groups.”

Defining the Generations

While there is some debate regarding exactly when one generation ends and the next starts, the Pew Research Center has emerged as the “expert” and deciding voice on the most readily accepted generational definitions. Pew Research Center is a self-described “nonpartisan fact tank that informs the public about the issues, attitudes and trends shaping the world. It conducts public opinion polling, demographic research, media content analysis and other empirical social science research.”[6]

The disagreement on the definitions of generations, aside from Baby Boomers, is that the start/end dates for each generation are picked arbitrarily. The generation labeled “Baby Boomers” is the only generation that is based on a shared demographic event: the post-World War II baby boom. All of the generations following, and even the silent generation before, were simply lumped together in 14–20-year ranges.

Based upon these age ranges, persons within the Silent Generation group are currently 77-94 years old, Baby Boomers are 57-76 years old, Generation X are 42-57 years old, Millennials are 26-41 years old, Generation Z are 10-25 years old, and Generation Alpha are 0-9 years old. See Figure 1.

Legitimacy of Generational Labels

As previously mentioned, the age/birth year cohorts and the names associated with them are for the most part made up and have no demographic reasoning behind them. Adding to this confusion is the length of different generational groupings changing from generation to generation. The only grouping that is based off a distinct demographic event is the Baby Boomer generation. The remaining labels were created by the media and consultants looking for ways to capitalize on what are perceived differences between the groups to make a profit.[8]

For researchers, consultants, and publication writers and editors, picking the winning label for the next generation and becoming “the” authority on that particular generation can be highly lucrative.[9] Consultants and the media add to this “generational warfare” by making generalized claims about how one cohort is so different from the others, causing companies to pay ridiculous sums to hire experts to explain these differences.[10] The Wall Street Journal and Bobby Duff, author of “The Generation Myth,” report that in 2015, American companies spent around $70 million on generational consulting.[11]

Further proof of the illegitimacy of generational labels is the consistent low and mixed results of people within each generational group identifying with the group they are assigned to. Based on a poll taken by The Atlantic in 2021, only 45% of those polled born in between 1981 and 1996 even identify as “millennials.”[12] See Figure 2. The only individuals polled who overwhelmingly self-identified as the age cohort to which they are assigned were Baby Boomers at 74%. Even more puzzling were the results from a 2015 Pew Research Center survey in which 33% of “millennials” self-identified as “generation x.”[13] See Figure 3.

However, just because generational labels are not supported by empirical evidence, that doesn’t mean similarities do not exist among groups of people that belong to the same generational label or that differences do not exist among people who have been assigned to different generational labels. Rather, the argument is that those similarities or differences cannot simply be attributed to a defined range of birth years. In fact, these similarities or differences are better supported by other factors, such as individual differences, the period of time that people were assessed, external environmental factors, and individual development changes.[16]

Yet, despite the lack of empirical evidence supporting generational labels and the stereotypes that have been attached thereto, we still love to use them. Research has shown that the reason why people gravitate back to using generational labels and accepting reasoning based on stereotypes is because the human brain loves cognitive shortcuts.[17] As David P. Costanza and Lisa M. Finkelstein put it, “[g]eneralizations and heuristics save us time, and anything timesaving is hard to purposefully part with in exchange for commitment to the extra cognitive effort it takes to discern people’s individual qualities.”[18]

Stereotypes associated with generational labels are often false and over-generalizations

Relying on stereotypes that have been assigned to different generational labels is not only fallacious, but it can also be harmful. Most of these stereotypes, beyond the ones sensationalized by the media, are rooted in misguided human perception rather than any concrete evidence.[19] Take for example the classic gripe of older individuals that “kids these days” are in some way lesser regarding a particular trait than when said older individual was the same age.

In a 2019 study, two researchers from the University of California, Santa Barbara found that the degree to which an older individual negatively views certain traits of “kids these days” is associated with their current perception of their embodiment of that trait.[20] For example, the researchers asked their sample participants to what extent they believe “kids these days” enjoy reading compared to when they were young, then took an objective measure of how well-read the sample participants were.[21]It was found that the more well-read an individual was, the more they believed “kids these days” do not like to read.[22] This study found the “trait­ specific tendency to see today’s youth as especially lacking on those traits on which one particularly excels (respect for elders, intelligence, and enjoying reading).”[23]

The use of generational labels in the legal profession among peers or in the workplace lacks any discernible value

Generational labels have no value. Rather than focusing on the stereotypes about a particular generational group, the legal professional, and the workplace as a whole, should shift their focus to the differences among individuals that actually impact performance and outcome.[24] Like we stated previously, the differences that can be seen among different generations exist for reasons, such as social changes, technological changes,[25] and other developmental changes in the workforce, not because of generational memberships.[26]

The age that a person becomes an attorney is not set in stone. Some people opt for the kindergarten straight through law school route and take no time off between high school and undergrad or undergrad and law school. Others may take a year or two off to work before law school, such as these authors, or law may be a second career coming later in life. This variance further blurs the lines and usefulness of generational labels. When two people enter the field of law at the same time, maybe even hired at the same firm, but one is a “baby boomer” and the other a “millennial,” do these arbitrary terms matter or provide any significant information on what they know about the law or how well they work? We think not.

Idaho is unique with our small and cordial bar. Even from our limited time in practice, we both have noticed the welcoming and professional attitudes of our peers all over the state. Generational labels are easy to use and confirm our preconceived, and quite often incorrect, assumptions and stereotypes about those we don’t know outside our own age cohorts. We want to ensure that the civility and professionalism we have had the pleasure of experiencing in our first couple of years in practice continues for all future attorneys joining the Idaho State Bar. Dropping these arbitrary generational labels appears to be one easy way that we in the legal profession, at least here in Idaho, can work towards keeping civility and professionalism at the forefront of our interactions with our peers.

From our perspective, the only generational difference that holds any value in the legal profession is the debate of one or two spaces after a period.

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Endnotes

[1] Jona Jone, 5 Reasons Baby Boomers are Tech Resistant, (June 8, 2016), https://www.inman.com/2016/06/08/5-reasons-baby-boomers-are-tech-resistant/.

[2] Lavanya Ramanathan, We Thought Gen X Was a Bunch of Slackers. Now They’re the Suits, (March 1, 2017), https://www.washingtonpost.com/lifestyle/style/we-thought-gen-x-was-a-bunch-of-slackers-now-theyre-the-suits/2017/03/01/eba47346-f924-11e6-9845-576c69081518_story.html.

[3] Izzy Greenblatt, Millennials are killing…department stores, (July 16, 2019), https://www.abc10.com/article/life/millennials-are-killingdepartment-stores/103-e066d55e-d8d1-437d-90a5-223917c31035.

[4] Priya Elan, ‘No skinny jeans’: Gen Z launch TikTok attack on millennial fashion, (February 12, 2021) https://www.theguardian.com/technology/2021/feb/12/no-skinny-jeans-gen-z-launch-tiktok-attack-millennial-fashion.

[5] Joel Stein, Gen Z Has Arrived At the Office–And It’s Freaking Everyone Out, (December 29, 2021), https://www.lamag.com/article/gen-z-has-arrived-at-the-office-and-its-freaking-everyone-out/.

[6] https://www.pewresearch.org/about/.

[7] Michael Dimock, Where Millennials End and Generation Z Begins, (January 17, 2019), https://www.pewresearch.org/fact-tank/2019/01/17/where-millennials-end-and-generation-z-begins/. See also Joe Pinsker, Oh No, They’ve Come Up With Another Generation Label, https://www.theatlantic.com/family/archive/2020/02/generation-after-gen-z-named-alpha/606862/.

[8] Id.

[9] Id.

[10] Id. See also Joe Pinsker, ‘Gen Z’ Only Exists in Your Head, (October 14, 2021), https://www.theatlantic.com/family/archive/2021/10/millennials-gen-z-boomers-generations-are-fake/620390/.

[11] Lindsay Gellman, Helping Bosses Decode Millennials—for $20,000 an Hour, (May 18, 2016), https://www.wsj.com/articles/helping-bosses-decode-millennialsfor-20-000-an-hour-1463505666. See also Louis Menand, It’s Time to Stop Talking About “Generations”, (October 18, 2021), https://www.newyorker.com/magazine/2021/10/18/its-time-to-stop-talking-about-generations.

[12] Pinsker, Supra note 7.

[13] Pew Research Center, Most Millennials Resist the ‘Millennial’ Label, (September 3, 2015), https://www.pewresearch.org/politics/2015/09/03/most-millennials-resist-the-millennial-label/9-2-2015_03/.

[14] Pinsker, Supra note 10.

[15] Pew Research Center, Supra Note 13.

[16] David P. Costanza & Lisa M. Finkelstein, Generationally Based Differences in the Workplace: Is

There a There There?, Industrial and Organizational Psychology 3, available at CJO 2015 doi:10.1017/iop.2015.15.

[17] Id. at 5.

[18] Id.

[19] John Protzko & Johnathan W. Schooler, Kids these days: Why the youth of today seem lacking, (October 16, 2019), 1–2, available at https://www.science.org/doi/10.1126/sciadv.aav5916.

[20] Id. at 2.

[21] Id.

[22] Id.

[23] Id.at 3.

[24] Costanza & Finkelstein, Supra note 16 at 11.

[25] Pinsker, Supra note 10.

[26] Costanza & Finkelstein, Supra note 16.

Debora Kristensen Grasham

Preface by Hon. Candy W. Dale

Published March/April 2022

Preface

As I began my third year of law school, I recall watching President Reagan’s historical nomination of Sandra Day O’Connor as the first woman associate justice to the Supreme Court of the United States.  She was confirmed by the Senate by a 99-0 vote on September 11, 1981. This “first” signified a “beginning” that lead lawyers like myself to realize that our previously unthinkable dreams of women taking seats on the bench among men could be a reality.  Ruth Bader Ginsburg followed as the second associate justice in 1993, and to date three others have served on the highest court in our country.  Idaho too has had its own “firsts” during my career, starting with Deborah Bail who was the first woman appointed as District Judge in 1983, followed by Linda Copple Trout as the second in 1990.  Cathy Silak was the first woman appointed to the Idaho Court of Appeals in 1990, followed by Karen Lansing as the second in 1993.  Linda Copple Trout was the first woman appointed to the Idaho Supreme Court in 1992, followed by Cathy Silak as the second in 1993.  And in 2008, with my appointment as United States Magistrate Judge, I became the first woman to serve on the federal bench in Idaho.  I am pleased to now say that my appointment was also just a beginning, as Debora Kristensen Grasham will join the federal bench in Idaho as a United States Magistrate Judge on or about April 1, 2022, upon my transition to recall status.

Over the past 20 plus years, as evidenced by the article that follows and several prior articles, Ms. Grasham has spent countless hours researching and writing about lawyers and jurists who have made contributions to Idaho’s legal history, notably including a focus on the “firsts” who were admitted to the practice of law or who attained a seat on our state and federal courts. Soon, Ms. Grasham will add her own chapter to the history she has preserved about so many of us.  To borrow a quote from former Justice Sandra Day O’Connor, “It’s fine to be the first, but you don’t want to be the last.” Welcome to the bench!

—Judge Candy W. Dale

Former U.S. Secretary of State Condoleezza Rice once remarked: “People who end up as ‘first’ don’t actually set out to be first.  They set out to do something they love and it just so happens that they are the first to do it.”  Such is the story of Idaho’s first African American woman lawyer and judge, Ida Leggett.  Leggett, a native of Alabama, did not set out to be a “first” in Idaho.  Nonetheless, her determination to become a lawyer led her to Idaho and her unique place in Idaho legal history.

Leggett’s Early Years

Ida Rudolph Leggett was born in 1948 in a small town in Alabama at a time when racial tensions were high.[2] Her father was a sawmill worker and her mother was a schoolteacher. Separate water fountains existed for whites and people of color, along with separate entrances to the courthouse. When Leggett was young, she was not permitted in the whites-only city library.[3] An avid reader, she read anything and everything should could get her hands on. When she was seven, one of the magazines she found was an issue of Ebony with an article about Thurgood Marshall arguing Brown v. Board of Education. When Leggett asked her mother about it, she explained Marshall’s role as chief counsel for the NAACP Legal Defense and Education Fund and said that he was “going to change the schools because he could argue in court.”[4] That is when Leggett decided to become a lawyer and help bring about change herself.

Leggett graduated from her segregated high school in 1965 and attended Tuskegee Institute, in Alabama.[5] After just a year and half, however, she got married and dropped out of school. She became a mother, and then a single mother, to three children, before she returned to college.[6] When she applied for financial aid, she was denied based on the argument that she had chosen her career as a mother over other options. Leggett persevered without the financial aid and returned to college later. She graduated from the University of South Florida in Tampa in 1979, the first integrated school she had attended.[7]

Leggett Decides to Go to Law School

After college, Leggett was not sure what to do with her life, even though she had aspirations of becoming a lawyer. Her finances were tight and she had three children and very little support. But she decided, “I can do this myself,” and she began applying to law schools throughout the nation.[8] One day she received a telegram offering a fellowship to pursue her legal education at Gonzaga Law School in Spokane, Washington. Leggett described how she had to pull out a map to see where Washington State was, but she happily accepted the offer.[9] With her three kids in tow, she moved from Florida to Washington in 1979.

Leggett recalls studying for her law school classes at night while her children slept. She attended summer terms at Gonzaga and graduated cum laude after just two and one-half years.[10] During that period, Leggett participated in two moot court teams that won regional championships and one that placed third in the nation.[11] She also worked as an Assistant U.S. Attorney in Spokane. After graduation in 1981, she accepted a clerkship with Chief Justice William Williams of the Washington Supreme Court.[12] Leggett was admitted to the bar in Washington State one year later.

Life After Law School & A Move to Idaho

After her clerkship, Leggett accepted a position with the Lane Powell law firm and worked in civil litigation, including insurance defense and construction law.[13] A few years later, Janet Jenkins, a law school classmate, invited her to move to Coeur d’Alene, Idaho, to start their own firm. She accepted and practiced civil law for several years at Jenkins & Leggett.

Leggett was admitted to practice law in Idaho on April 25, 1986, and thereby became the first African American woman admitted to the Idaho bar – an accomplishment she did not recognize until years later. Indeed, when she did learn that she was the first African American woman pass the bar in Idaho she was perplexed and asked “How can that be? It was the late 80s when I passed the bar and I thought there must have been someone else.”[14]  Nonetheless, she was thrilled to learn of her distinction and called it “pretty good, pretty neat.’”

In 1986, Leggett was interviewed by the Associated Press about the racism she had experienced in Coeur d’Alene.[15] Leggett described how her son had been taunted by high school classmates using racial epithets. Her secretary had been followed home by people who yelled the same words, and Leggett described the precautions she herself took each day to stay safe.[16] A newspaper of the day reported:

In September, when bombs rocked the rugged, mountain ringed beauty of smalltown Coeur d’Alene, Ms. Leggett got serious about precautions.

She left markers on the hood of her car each day to warn her if someone tampered with the engine. She drove different routes to and from work.

“No one should have to live this way,” she said. “Probably the only reason we’re here now is because I don’t want him [her son] thinking he has to run for his life.”[17]

Nevertheless, she persisted.

Leggett’s Good Work Gets Noticed

Within a few years, Leggett came to the attention of the Idaho Governor Cecil Andrus, and in 1988 he appointed her to the State Commission on Pardons and Parole.[18] In this position, Leggett found herself in a new role as decision maker and having to find consensus with her fellow board members. She was the only woman and only person of color on the commission.

During a 1991 interview, Leggett was asked whether she missed anything about “being in the thick of black culture.”  Her response was personal and reflected the ever-present pressure she faced just by being herself in a white-dominated community:

I do miss that just being a person.  Just being one person of a lot of people.  I’d like to walk in a room and not cause a stir just by walking in.  I miss that sameness.  I miss that – I don’t know what it is, but when my family’s all together – it’s there.  You’re just a person.  And if you do something, you’re doing it for yourself and if you fail, you fail for yourself.  You didn’t do it for every other black person in town.  That’s a product of being the only one who’s visible.[19]

Leggett Applies for Idaho Judgeship

In 1992, Governor Andrus announced his intention of appointing a woman to the open seat on the Idaho Supreme Court. Leggett decided to throw her name into the mix, becoming the first black woman to apply for an Idaho Supreme Court position.[20] During her interview with the Judicial Council, Leggett told the members that the circumstances of her life had forced her to excel—something she would continue to do as a justice. She said she had been so successful in private practice that she would be taking a pay cut if she were named to the Supreme Court. The job paid $74,701.

“I am qualified to do this job; I’m willing and I’m able,” Leggett said. “And because of what my parents have given me, I don’t have any choice but to do a good job.”[21]

Linda Copple Trout was chosen for the position, but that did not end Leggett’s ambition to join the bench. In fact, Trout’s elevation to the Idaho Supreme Court meant that her district court seat in Lewiston was now open. Leggett decided to apply for that seat; at the time, only one other woman served as a district court judge in Idaho, Deborah Bail in Ada County.

Leggett “received strong support from a number of groups” in her judicial application.[22] On November 16, 1992, Governor Andrus appointed Leggett to the district court bench in the Second Judicial District in Lewiston, noting, “I am particularly impressed that she intends to lead the effort to make the citizen more comfortable in what sometimes can feel like the insider’s realm of the courtroom.”[23] In so doing, Leggett became the first African American woman to hold a judicial position in Idaho.

Leggett’s Life in Lewiston

In Lewiston, Leggett was “highly visible as an African American woman, a woman professional, and an African American judge.”[24] The lack of privacy made her vulnerable to threats and, unfortunately, she received them. One particularly horrendous example occurred during her presiding over a high-profile murder trial. Leggett received racially motivated death threats and had a cross burned on her front lawn.[25] In 1998, Leggett decided that the “isolation and fishbowl nature of her life” was too much, resigned her position, and moved to Seattle to be closer to her family.[26]  She later remarried and worked in Washington state.

A colleague and friend of hers, Judge Richard D. Eadie of the King County Superior Court in Seattle, Washington, described Leggett as:

a quiet but determined woman who has endured poverty, racism—both overt and subtle—and the challenges of education and employment as a single parent and sole support of three children. She is an accomplished lawyer and jurist; a person with dignity and class. She has faced enormous challenges, but always found the inner strength to overcome.[27]

Conclusion

Leggett’s achievements in Idaho legal history are even more remarkable when put in context.  Idaho has never been a racially diverse state and woman have been traditionally underrepresented in the bar. According to the U. S. Census Bureau, as of July 2019, Idaho’s population was 81.6 percent white, 12 percent Hispanic or Latino, 1.7 percent Native American, 1.6 percent Asian, and 0.9 percent African American.[28] As of October 2021, there were a total of 5,429 active attorneys in the state,[29] with women making up about 27 percent of them.[30]  In the late 1980s when Leggett came to Idaho, these numbers were even less diverse.  Nonetheless, Leggett worked hard to become Idaho’s first woman African American lawyer and judge and is entitled to a special place of honor in Idaho legal history.

BIO: Debora Kristensen Grasham has been a partner in the Boise law firm of Givens Pursley for more than 22 years.  On or about April 1, 2022, she will become the next U.S. Magistrate Judge for the District of Idaho, following U.S. Magistrate Judge Candy Dale’s transition to recall status.  At that time, Idaho will have reached another “first” – having two women serve on its federal bench.

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Endnotes

[1] Much of this article is taken from a longer article by the author entitled The First Women of Idaho’s Bench and Bar published in Volume 32 of Western Legal History and available at https://www.njchs.org/current-issues/.

[2] Richard D. Eadie, Judge Ida Leggett: A Pioneer Jurist in Idaho, Washington State Courts, Equal Justice Newsletter, Mar. 2000, available at https://www.courts.wa.gov/programs_orgs/pos_mjc/newsletter/032000/equaljustice.cfm?article=leggett.htm.

[3] Id.

[4] Id. See also Ida Leggett: First African-American Woman Admitted to the Idaho Bar,” Idaho Legal History Society Newsletter, Spring 2017, at 3.

[5] Pioneer Jurist, supra note 2.

[6] Pioneer Jurist, supra note 2.

[7] Pioneer Jurist, supra note 2.

[8] Leggett in Idaho, supra note 4 at 3.

[9] Pioneer Jurist, supra note 2; Leggett in Idaho, supra note 4 at 3.

[10] Pioneer Jurist, supra note 2.

[11] Pioneer Jurist, supra note 2.

[12] Pioneer Jurist, supra note 2.

[13] Pioneer Jurist, supra note 2.

[14] Aisha Monet, Interview with the Honorable Ida Leggett (March 8, 2016 and May 24, 2016), available at https://thecoloredgirls.wordpress.com/.

[15] Lawyer Is Fearful of New Idaho Life, South Idaho Press, Dec. 31, 1986, at 3.

[16] Id.

[17] Id.

[18] Pioneer Jurist, supra note 2.

[19] Randall Kenan, Walking on Water: Black American Lives at the Turn of the Twenty-First Century 240 (Vintage Books Ed., 2000).

[20] Idaho Judicial Council Begins Screening Applicants for Vacancy, The Times News, Aug. 16, 1992, at 12.

[21] Id.

[22] Andrus Mulls Lewiston Court Seat, The Times News, Nov. 13, 1992, at 10.

[23] Id.

[24] Pioneer Jurist, supra note 2.

[25] Kathy Hedberg, Standing in Judgment, The Lewiston Tribune, Oct. 26, 2018.

[26] Pioneer Jurist, supra note 2.

[27] Pioneer Jurist, supra note 2.

[28] See United States Census Bureau, Quick Facts, Idaho, available at https://www.census.gov/quickfacts/fact/table/ID/RHI825219#RHI825219.

[29] See Idaho State Bar, Membership Count as of 10/5/21, available at https://isb.idaho.gov/licensing-mcle/membership-count-statuses/.

[30] See Jessica R. Gunder, Women in Law: A Statistical Review of the Status of Women Attorneys in Idaho, 62 The Advocate, Feb. 2019, at 23.

John E. Rumel

Published May 2022

Introduction

Idaho has long recognized the right to jury trial in civil cases. Indeed, the origins of the right are as old as the Gem State itself.  But what are the purposes underlying the right?  And how has the right been interpreted and applied by the Idaho Supreme Court over the years? 

This article will explore the legal origins of the right to jury trial in Idaho and will delineate its laudatory purposes in both criminal and civil cases.  It will then discuss selected decisions by the Idaho Supreme Court evaluating the jury trial right in civil cases, including (1) decisions predictably and non-controversially limiting the scope of the right by requiring jury trial demands to exercise the right and allowing courts to grant motions for new trial or directed verdict and judgment notwithstanding the verdict (“JNOV”) without denigrating the right and (2) decisions on less stable legal terrain, alternatively, limiting the right concerning the Idaho legislature’s imposition of caps on noneconomic damages and expanding the right concerning the possible award of front pay.

The article will next evaluate the relatively scant case law on the effect of judicial Covid-related orders on the right to jury trial in civil cases, opining that delays caused by those orders will be permissible, but outright denial of or prohibition on the exercise of the right will not.  The Article will conclude by suggesting that, because the right to jury trial preserves one of our most democratic institutions, Idaho courts should vigorously further the right in future cases.         

Origins of and Purpose Underlying the Right to Jury Trial in Civil Cases

Article I, Section 7 of the Idaho Constitution was adopted by Idaho’s Framers in 1890 and provides that “[t]he right of trial by jury shall remain inviolate … .”[1]  In construing Idaho’s jury trial right provision, the Idaho Supreme Court has noted its historical origins, stating “[t]he right to trial by jury always has been salient to the American people. In no less a document than the Declaration of Independence, our nation’s founders grounded, in part, their dissolution of political ties with Great Britain on the King’s “depriving us, in many cases, of the benefits of trial by jury.”[2]  To be sure, the right to a jury trial has one of its most profound applications in criminal cases, where “the Framers of both the federal and state constitutions interposed juries of citizens between governments and those persons the governments have accused of wrong in order to avert the abuse of authority.”[3] 

However, the right to jury trial has long applied to civil cases – under both Article I, Section 7 in Idaho[4] and under the Seventh Amendment.[5] In civil cases, the right to a jury trial reflects the belief that decisions by average citizens drawn from the community will confer legitimacy on the civil litigation process.[6]   Related, the United States Supreme Court made clear long ago that decisions by those same average citizens from the community can be more informed and thoughtful than decisions by a single individual or judge.[7]

Thus, in a personal injury case in the 1870s, a six-year old boy was injured while playing on an unguarded turntable owned and operated by a railroad company.[8] The jury awarded $7,500 for the boy’s injuries and the railroad company appealed.[9]  The Supreme Court rejected the railroad company’s contention that, because the facts were undisputed, the district judge, rather than the jury, should have decided the negligence issue in the case.[10] Specifically, the Court held that, where reasonable deductions and inferences could be drawn from undisputed facts on the issue of negligence, the jury was the appropriate decisionmaker.[11]  

In so holding, the Court laid out the rationale for its decision in stirring terms:

Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge.[12]

Over the years, these vaunted purposes have not prevented predictable limitations on the right to jury trial in civil cases but have played out in mixed results in cases where plaintiffs have sought to have jurors as the final decision in the remedial aspect of civil cases.    

Three Predictable and Noncontroversial Limitations 

Given the importance of the right to jury trial in civil cases, the Idaho Supreme Court  held a number of years ago  that “[a] waiver of a jury trial will not be implied in doubtful cases”[13] and a few years later that “[w]e will not indulge in any presumption that a litigant has waived such a fundamental right.”[14]

More recently, however, the right to a jury trial in a civil case has shifted from a right not readily waived to a right that must be asserted and preserved by litigants to be enjoyed.  Thus, Idaho Rule of Civil Procedure 38 imposes the following demand and waiver requirements concerning the right to jury trial in civil cases:     

(b)On any issue triable of right by a jury, a party may demand a jury trial, stating in such demand whether the party will stipulate to a jury of less than 12 persons, but at least 6. …

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(d) A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.

Related, Idaho Rule of Civil Procedure 39 provides in pertinent part as follows:

(a) When a jury trial has been demanded under Rule 38, the action must be designated on the register of actions as a jury action. The trial on all issues so demanded must be by jury, unless:

(1) the parties or their attorneys file a stipulation to a nonjury trial or so stipulate on the record; or

(2) the court on motion or on its own finds that on some or all of those issues there is no right to a jury trial.

(b) Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded.

Thus, under Rule 39(a), “once a proper and timely demand has been made, the trial is by  jury…”[15] Conversely, “[f]ailure to make a timely demand under Rule 38(b) constitutes a waiver of the right to a jury trial.”[16]  In sum, to perfect a right that the Idaho Constitution guarantees inviolate, litigants must satisfy the demand requirements of the Idaho Rules of Civil Procedure. 

“More recently, however, the right to a jury trial in a civil case has shifted from a right not readily waived to a right that must be asserted and preserved by litigants to be enjoyed.”

Motions for New Trial and the Right to a Jury Trial

Arguably, any time a trial judge grants a motion for new trial after a jury has rendered a verdict an incursion on the right to a jury trial has occurred. However, Idaho appellate courts have made clear that a trial judge’s ability to grant a new trial – and the standards under which it may do so – do not violate the state constitutional right to a jury trial under Article I, Section 7 so long as the judge adheres to certain procedural requirements.

The Idaho Court of Appeals, addressing a constitutional challenge to the abuse of discretion standard for reviewing a trial judge’s decision to grant a new trial, has held as follows:

Agro-West next argues that the “manifest abuse of discretion” standard violates Article I, section 7 of the Idaho Constitution …. . As to the alleged violation of the state constitution, we note that the power to grant new trials is not claimed to be unconstitutional; rather it is the wide discretion given to the district court under the “manifest abuse of discretion” standard of review, which Agro-West claims “disturbs” and “infringes” upon the jury’s role as factfinders, and allegedly violates the state constitution.

The constitutional right of trial by jury has been interpreted to secure that right as it existed at common law when the Idaho Constitution was adopted. … Before Idaho became a state, our territorial Supreme Court had recognized the trial court’s discretionary function in ruling upon new trial motions. …. After statehood, the court later enunciated the “abuse of discretion” standard of review. …. Thus the constitutional right to trial by jury in civil cases, under the state constitution, is subject to the trial court’s discretionary power to grant a new trial. The limits of this power are defined by the “abuse of discretion” standard of review. Because the discretionary power to grant a new trial does not contravene the state constitution, the abuse of discretion appellate standard is also free from constitutional infirmity.[17]

The Idaho Supreme Court has likewise held that, where  the trial judge discloses his or her reasoning for granting or denying a motion for a new trial and/or remittitur or additur (unless those reasons are obvious from the record itself), that statement of reasons allows for “adequate review of the decision of the trial court [and thereby] … insure[s] the right to trial by jury guaranteed by art. 1, § 7 of the Idaho Constitution.”[18]

Thus, given trial courts’ pre-Statehood ability to grant a new trial after a jury had rendered its verdict, it is not surprising that trial courts have continued to be able to exercise such discretion as long as both appellate courts and trial courts adhere to certain safeguards designed to protect the right to jury trial guaranteed by the Idaho Constitution.      

Motions for Directed Verdict or Judgment Notwithstanding the Verdict (JNOV) and the Right to a Jury Trial

A trial judge’s unwillingness to allow a case to be resolved by a jury or to reverse a jury’s verdict once it has been rendered and direct a verdict or enter judgment for one party over the other raises similar issues regarding possible incursion on jury trial rights as granting a motion for a new trial.  Indeed, the effect on the parties’ right to a jury trial is even more pronounced in the directed verdict or JNOV contexts, since a trial court’s granting a motion for new trial merely sets aside a verdict and leaves open the possibility that either party may obtain a jury verdict in a subsequent trial, while granting a motion for directed verdict or JNOV enters judgment in favor of one party by either bypassing or overriding a jury’s verdict.

These considerations notwithstanding, the Idaho Supreme Court has made clear that, so long as the trial judge applies a standard of review deferential to the non-moving party on a motion for directed verdict (or JNOV), the court will not offend the non-moving parties’ jury trial rights if it grants the motion.[19]   Thus, the Idaho high court, quoting federal case law, has stated as follows:

If the court grants it (a motion for directed verdict) no findings of fact are necessary and upon review the evidence must be viewed in the light most favorable to the party against whom the motion is made. . . .

We will therefore . . . disregard the findings of fact of the trial court, reviewing the entire evidence in the light most favorable to the plaintiff and giving him the benefit of all reasonable inferences which may be deduced from the evidence in his favor . . . . To adopt any other view in a jury case is to risk the deprivation of a plaintiff’s right to trial by jury under the Seventh Amendment.[20]

As with the Idaho Supreme Court’s decision on motions for new trials, its decision recognizing the power of trial court – guided and constrained by standards favorable to the nonmoving party (typically, the plaintiff) – to either grant a directed verdict or reverse a jury’s verdict by granting JNOV is consistent with the jury’s and judge’s rightful roles in our civil litigation system.  As such, the decision is not surprising.  

Caps on Non-Economic Damages and the Right to a Jury Trial

In Kirkland v.  Blaine County Medical Center,[21] the Idaho Supreme Court was faced with several Idaho state constitutional challenges, including a right to jury trial challenge, to the Idaho legislature’s enactment of monetary caps on the ability of personal injury plaintiffs to recover non-economic damages from defendant tortfeasors.[22] Specifically, the legislature limited the amount of noneconomic damages a plaintiff prevailing under a negligence theory could receive from defendants to a sum certain even though a jury might have awarded the plaintiff economic damages in an amount vastly exceeding the capped amount.[23]

In resolving the right to jury trial challenge, the Idaho Supreme Court recognized that, although Art. I, Section 7 provides that the right to trial by jury was to remain “inviolate” and plaintiffs’ right to recover noneconomic damages from tortfeasors existed at the time of adoption of the Idaho Constitution, the legislature had “the power to …modify common law rights and remedies” at that time as well.[24]  As such, the Idaho legislature’s subsequent imposition of caps on noneconomic damage awards did not violate Art. I, Section 7 generally.[25]   

In addition, given the effect of caps on a plaintiffs’ right to fully recover noneconomic damages, the Court made  the dubious statement that the legislature’s imposition of caps “does not violate the right to a jury trial because the statute does not infringe upon the jury’s right to decide cases.”[26] In this regard, the Court stated that “[t]he jury is still allowed to act as the fact finder in personal injury cases” and “[t]he statute simply limits the legal consequences of the jury’s finding.”[27]  Disagreeing with the statement made by other courts that the procedure for administering caps “plays lip service to the form of the jury but robs the institution of its function,” the Court held that the legislature’s adoption of caps limiting plaintiffs’ recovery of noneconomic damages “does not violate the right to jury trial as guaranteed by Article I, § 7 of the Idaho Constitution.”[28]

Certainly, the Idaho Supreme Court’s decision rejecting a constitutional jury trial right challenge to caps on noneconomic damages can be supported by decisions on similar issues in other jurisdictions.[29]  However, a near equal number of decisions outside of Idaho have concluded that such caps violate jury trial right guarantees.[30]  Moreover, although the Idaho high court attempts to suggest otherwise, imposition of caps on noneconomic damages reducing the amount of damages a plaintiff may recover from a higher amount of damages awarded by a jury fails to respect the jury’s decision on the matter, alters the outcome of the case when a jury has fairly performed the duties assigned to it and, as such, does infringe on the jury’s right to decide cases.  For these reasons, the Idaho Supreme Court’s decision on the jury trial right issue in Kirkland was regrettable.           

Front Pay in Employment Cases and the Right to a Jury Trial

Approximately two years ago, in Smith v. Glenns Ferry Highway Dist.,[31] the Idaho Supreme Court addressed and resolved the issue of whether a plaintiff had a right to a jury trial concerning her request for an award of front pay in lieu of reinstatement in a Whistleblower Act case.[32]  In concluding that plaintiff Joanie Smith did have such right, the Court first “recognized that the constitutional right to a jury trial applies only to legal claims and not equitable claims.”[33] The Court went on to categorize front pay as a legal remedy, distinguishing statutory schemes (such as Title VII) treating front pay as equitable relief and holding as follows:

Much has been made by the District and the trial court of “front pay” being a remedy in lieu of reinstatement. Clearly reinstatement is an equitable remedy over which the court alone holds control. However, allowing an award of front pay as an alternative to reinstatement does not somehow transform front pay into an equitable remedy. Front pay is an alternative to reinstatement “where reinstatement is made unreasonable by hostility between the parties[.] … The impracticality of forcing parties back into a fractured employment relationship does not somehow transform front pay—money damages—into an equitable remedy rather than a legal remedy. Front pay is offered as a legal alternative, not as an equitable replacement.

Accordingly, the trial court erred as a matter of law in holding that Smith was not entitled to have the jury decide the issue of front pay. The issues of front and back pay should have been left in the hands of the jury as a matter of state constitutional law and statutory interpretation.[34]

Unlike the Idaho Supreme Court’s decision in Kirkland, the Idaho high court’s decision in Smith gives full vitality to Idaho’s constitutional jury trial right guarantee and, indeed, did so in the face of contrary authority under other statutory schemes taking the issue of front pay away from the jury. For this, the Court should be lauded.

Delays in Civil Jury Trials Caused by the Covid Pandemic

The Idaho judicial system, like so many of its counterparts in other states, has been greatly affected by the Covid pandemic, which began in March 2020.[35]  Although Idaho appellate decisions recount the various pandemic-related health and safety orders prohibiting in the near term or delaying jury trials issued by the Idaho Supreme Court[36] and Idaho trial courts,[37] Idaho courts have had no occasion to address the issue of whether delays in civil jury trials caused by those orders violated a litigant’s constitutional right to a jury trial.[38] This author has not been able to locate any decisions by courts in other jurisdiction that have addressed the issue either, although one court held that a 13-month delay in civil commitment due to a pause on jury trials to protect public health during the Covid pandemic did not shock the conscience and, therefore, did not violate plaintiff’s substantive due process rights.[39] 

Appellate courts outside of Idaho have made clear, however, that complete denial of or prohibition on (as opposed to a delay concerning) the right to jury trial in civil cases is a bridge too far, holding that “emergency orders issued by the … [state] Supreme Court in response to natural disasters such as the pandemic that result in jury trial delays and juror shortages [in civil cases] may not support denial of a party’s constitutional right to a jury trial.”[40]  Applying this standard, those same appellate court have granted petitions for writs of mandamus requiring jury trials when trial courts have relied on pandemic-related orders delaying trials issued by the state Supreme Court to justify denying a litigant’s jury trial right altogether.[41]  

Although several of the Idaho Supreme Court’s pandemic-related orders speak of “prohibiting” jury trials, most (but not all) of the prohibitions specify end dates concerning the duration of the orders.[42]  Thus, the Supreme Court’s orders should be properly understood as delaying, rather than prohibiting, civil and criminal trials.[43]  Certainly, delaying civil jury trials can be injurious to litigants — for reasons beyond delaying resolution of the case by a jury.  As just one example, the parties – particularly, a defendant (or its insurer) – will be reluctant to part with dollars to settle a case without the prospect of a jury trial immediately hanging over the parties’ heads.[44] However, given the strong and countervailing judicial interest in protecting the health and safety of all stakeholders involved in the jury trial process during the pandemic, pandemic-related orders delaying the parties’ exercise of the right to a jury trial in a civil case almost certainly does not rise to the level of violating that inviolable right.  Only complete prohibition concerning enjoyment of the right itself would cross the state constitutional line under Article I, Section 7.        

Conclusion

The right to jury trial guaranteed by the Idaho Constitution preserves one of our most democratic institutions.  Although several Idaho Supreme Court decisions making incursions on the right to jury trial in civil cases have been predictable and justified, other decisions have led to mixed results concerning enforcement of the right and were not preordained. And, of course, the Covid pandemic has led to new challenges impacting the preservation of the jury trial right, delaying (but not denying) the exercise of the right based on legitimate health and safety concerns. Hopefully, going forward, the Idaho high court will give a robust interpretation to the constitutional guarantee and err on the side of furthering the right in close cases.   

BIO: John Rumel grew up in Southern California, studied, practiced and taught law in Northern California, and, for over twenty-five years, has practiced or taught law in Idaho.John received his bachelor’s degree, with honors, from the University of California Santa Cruz and received his J.D. from Hastings College of Law in San Francisco. He then served as a law clerk to two federal judges in the Northern District of California.

John moved to Idaho in 1993, where he initially practiced law with a firm emphasizing products liability, professional malpractice, education and employment law. John joined the College of Law as a full-time faculty member in 2011. John received tenure at the College of Law in 2016 and was promoted to full Professor in 2018.  He has received the University of Idaho Alumni Award for Excellence three times. In 2015, he received the Distinguished Lawyer Award.

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Endnotes

[1] Official Website of the Idaho Legislature, Idaho Constitution, https://legislature.idaho.gov/statutesrules/idconst/  Similarly, Idaho Rule of Civil Procedure 38(a) provides that “[t]he right of trial by jury as declared by the Constitution … of the state of Idaho is preserved to the parties inviolate.”   

[2] State v. Bennion, 112 Idaho 32, 36, 730 P.2d 952, 956 (1986).

[3] Id.

[4] See, e.g., Neal v. Drainage Dist. No. 2, 42 Idaho 624, 248 P. 22, 23-24 (1926).  Article I, Section 7 references jury trials in civil matters, when it states, “in civil actions, three-fourths of the jury may render a verdict … .” See Gary Porter, Constituting America, https://constitutingamerica.org/july-3-1890-we-the-people-of-the-state-of-idaho-guest-essayist-gary-porter/#:~:text=Congress%20approved%20the%20ratified%20constitution,time%2C%20a%20population%20of%2088%2C548 (describing Article I, Section 7’s less than unanimous verdict requirement in civil cases as “unique and interesting”).    

[5] Slocum v. New York Life Ins. Co., 228 U.S. 364, 376-382 (1913).

   [6] Victoria A. Farrar-Myers & Jason B. Myers, Echoes of the Founding: The Jury in Civil Cases as Conferrers of Legitimacy, 54 SMU L. Rev. 1857 (2001).  Of course, juries, in their zeal to protect those in their communities from perceived or actual abuses of power, occasionally have done so by disregarding the court’s instructions and the evidence.  See, e.g., McDonald v. Great Northern Ry. Co., 5 Idaho 8, 46 P. 766, 767 (1896) (Idaho Supreme Court, in a late-Nineteenth Century decision, reversed jury’s verdict in favor of personal injury plaintiffs, concluding that plaintiffs were barred from recovery due to their contributory negligence where jury ignored instructions and evidence in case against defendant railroad corporation which jury likely viewed as having “vast and multitudinous rights, powers, and privileges” concerning which it had “no rights … to respect”).  

[7] Sioux City & Pacific Railroad Co. v. Stout, 84 U.S. 657, 664-665 (1873).

[8] Id. at 657-659.

[9] Id. at 659.

[10] Id. at 659 and 664.

[11] Id. at 663-664.

[12] Id. at 664.  The gender bias of the above-quoted language is palpable.  From the Supreme Court’s decision in Sioux City & Pacific Railroad, it took the Court slightly over one hundred years to hold that prohibiting women from serving on juries constituted a violation of the right to an impartial jury drawn from a cross-section of the community under the Sixth and Fourteenth Amendments.  Taylor v. Louisiana, 419 U.S. 522 (1975).       

[13] Neal, 42 Idaho 624, 248 P. at 24. 

[14] Farmer v. Loofbourrow, 75 Idaho 88, 94, 267 P.2d 113 (1954).

[15]  Savage Lateral Ditch Water Users Ass’n v. Pulley, 125 Idaho 237, 247, 869 P.2d 554, 564 (1993) (emphasis in original).

[16]  Parrott v. Wallace, 127 Idaho 306, 310, 900 P.2d 214, 218 (1995); see also City of Pocatello v. Anderton, 106 Idaho 370, 372, 679 P.2d 647, 649 (1984).  As quoted above, Rule 39(b) allows the trial court, in its discretion, to order a jury trial on issues that could have been tried by jury even though a party has not made a timely demand.  Idaho appellate courts have characterized this provision as a “limited ‘safety valve’ against unduly harsh application of the waiver rule,” Viehweg v. Thompson, 103 Idaho 265, 269, 647 P.2d 311, 316 (Ct. App. 982), quoted in Hayden Lake Protection Dist. v. Alcorn, 141 Idaho 388, 398, 111 P.3d 73, 83 (2005), overruled on other grounds, Farber v. Idaho State Ins. Fund, 152 Idaho 495, 272 P.3d 457 (2012), and have uniformly held that trial courts did not abuse their discretion in refusing to grant motions under Rule 39(b) when the party seeking relief has failed to explain why it failed to demand a jury trial in the first instance. KDN Management, Inc. v. Winco Foods, LLC, 164 Idaho 1, 6, 423 P.3d 422, 427 (2018) (collecting cases).         

[17] Sheets v. Agro-West, Inc., 104 Idaho 880, 884, 664 P.2d 787, 791 (Ct. App. 1983) (citations omitted).  The Seventh Amendment to the United States Constitution also provides that, in certain civil cases, “the right to trial by jury shall be preserved … .” “However, it is well settled that the Seventh Amendment does not apply to the states in so far as the right to a jury trial in civil cases is concerned.”  Sheets, 104 Idaho at 884, 664 P.2d at 791, citing Pearson v. Yewdall, 95 U.S. 294; Walker v. Sauvinet, 92 U.S. 90, (1875); see cases cited in 47 Am.Jur.2d Jury § 9 (1969).

[18] Smallwood v. Dick, 114 Idaho 860, 867, 761 P.2d 1212, 1219 (1988).

[19] Gmeiner v. Yacte, 100 Idaho 1, 4, 592 P.2d 57, 60 (1979).  The legal standard applicable to a court’s decision to grant a directed verdict or grant JNOV is the same. Polk v. Larrabee, 135 Idaho 303, 311, 17 P.3d 247, 255 (2000).

[20] Id., quoting O’Brien v. Westinghouse Elec. Corp., 293 F.2d 1, 9-10 (3d Cir. 1961).

[21] 134 Idaho 464, 4 P.3d 1115 (2000).

[22] Id. at 465-466, 4 P.3d at 1116-1117.

[23] See generally, Id. at 466, 4 P.3d at 1117.

[24] Id. at 467-469, 4 P.3d at 1118-1120.

[25] Id.

[26] Id. at 469, 4 P.3d at 1120.

[27] Id.

[28] Id.

[29] See, e.g., McClay v. Airport Management Services, LLC, 596 S.W.3d 686, 693 (S. Ct. Tenn. 2020); Gourley ex rel. Gourley v. Nebraska Methodist Health Systems, Inc., 663 N.W.2d 43, 75 (S. Ct. Neb. 2003).    

[30] See, e.g., Hilburn v. Enerpipe Ltd., 449 P.3d 509, 524 (S. Ct. Kan. 2019); Atlanta Oculoplastic Surgery, PC v. Nestlehutt, 691 S.E.2d 218, 224 (S. Ct. Ga. 2010).

[31] 166 Idaho 683, 462 P.3d 1147 (2020).

[32] Id. at 695, 462 P.3d at 1159.

[33] Id. at 694, 462 P.3d at 1158.

[34] Id.  at 695, 462 P.3d at 1159.  Relying on the Idaho Supreme Court’s decision in Smith, United States Magistrate Judge Candy Dale has twice held that the issue of front pay under the Idaho Human Rights Act must be determined by a jury. White v. Oxarc, Inc., Case No. 1:19-cv-00485-CWD, 2021 WL 4233883, *5 (D. Idaho Sept. 16, 2021); Hilliard v. Twin Falls County Sheriff’s Office, Case No. 1:18-cv- 00550-CWD, 2021 WL 1950015, *4 (D. Idaho May 14, 2021).

[35] Hon. G. Richard Bevan, The Pandemic and the Courts, 64-APR Advocate (Idaho) 38 (2021).

[36] State v. Prano, 2021 WL 5977238, *1 (Idaho Ct. App. 2021); see Bevan, supra note 35 at 39.

[37] Frost v. Gilbert, 169 Idaho 250, 494 P.3d 798, 816 (2021).

[38] The Idaho Court of Appeal held that a pandemic-induced delay, among other reasons, in a criminal trial did not violate a defendant’s constitutional and statutory rights to a speedy trial. Prano, 2021 WL 5977238 at **3-4.  In so holding, the Idaho Court of Appeal joined a legion of courts in other jurisdictions holding that, because the government could not be held responsible for delaying criminal trials due to the pandemic, trial delays attributable to that reason did not violate a criminal defendant’s speedy trial rights.  See Labbee v. State, A22A0246, 2022 WL 412829, *7 n.5 (Ga. Ct. App. 2022) (collecting cases); Commonwealth v. Murphy, No. 0197-21-2, 2021 WL 3501732, *5 n.5 (Va. Ct. App. 2021) (same).    

[39] LeSage, 171 N.E.3d 1158, 1170 (Mass. S. J. C. 2021).

[40] In re Willis, 2021 WL 2006317, * 5 (Tex. Ct. App. 2021), citing In re Jetall Companies, Inc., No. 14-20-00690-CV, 2021 WL 1420950, *5 (Tex. App. Ct. App. 2021).

[41] Id.

[42] Prano, 2021 WL 5977238 at *1.

[43] See Bevan, supra note 35 at 39 (“the largest negative effect of COVID-19 precautions on the courts has been delayed jury trials”) (emphasis added).  The author is not aware of any circumstance in Idaho where a trial court entirely prohibited, rather than delayed, a litigant from exercising her or his jury trial right based on an Idaho Supreme Court order delaying civil jury trials because of pandemic-related health and safety concerns.       

[44] Hon. Ed Spillane, The End of Jury Trials: Covid-19 and the Courts: The Implications and Challenges of Holding Hearings Virtually and In Person During a Pandemic from a Judge’s Perspective, 18 Ohio St. J. Crim L. 537, 549 (2021) (“When both or either side realizes that the jury trial is not going to take place, the settlement of the case also may not occur. This same stalling of other dockets due to the shutdown of jury trials would in theory affect civil courts as well in terms of settlements slowing down.”).

Taylor L. Mossman-Fletcher

Published May 2022

On January 20, 2016, Francisca Gomez was working at a seed sorter machine at the Crookham Company’s plant in Nampa. She was sucked into the machine after her hair became caught in an unguarded drive shaft.[1]  She suffered a particularly gruesome death. Ms. Gomez’s co-workers witnessed the tragedy unfold and first responders absorbed a horrific scene upon arrival. [2]  

The means by which Ms. Gomez’s family, her co-workers and the first responders sought remedy for the accident were established nearly a century earlier when our nation’s system for compensating injured workers took shape. This system, known as the “Grand Bargain,” became codified as Idaho’s worker’s compensation law in 1917. [3]

Among the questions still debated about the Grand Bargain in the century between its birth and Gomez’s injury are (i) what should it look like, (ii) who should it primarily benefit; and (iii) does anyone still believe it is grand?  For the parties in Ms. Gomez’s case—Ms. Gomez’s family, her co-workers, the first responders, and her employer—the answers differ greatly and are still evolving.

To help further explore these questions, a brief history of the Grand Bargain is in order.

The Grand Bargain Begins in Idaho

In March of 1917, Idaho created the Idaho Industrial Accident Board (now the Idaho Industrial Commission) as part of the State’s workers’ compensation law. This law was part of a movement sweeping the nation to standardize compensation to injured employees and limit an employer’s common law defenses to work-place injury claims.[4] In short, the Grand Bargain reflects a compromise between labor and industry where workers gave up the right to “sue” their employers in the traditional sense, in exchange for guaranteed, but far less expansive damages under common law tort claims. In what is commonly referred to as the exclusive remedy rule, injured employees can pursue workers’ compensation claims against an employer without regard to fault. However, workers can only bring these claims before a state industrial commission rather than in state court.

What is the Grand Bargain?

Idaho’s Workers’ Compensation laws emerged during a highly industrial and labor-intensive period in history. Working conditions were often dangerous and employers had little regard for safety measures. This, not surprisingly, led to a shocking number of workplace injuries and deaths by today’s standards. The Grand Bargain followed enactment of the Sherman Antitrust Act (1890) and the Clayton Act of 1914, both of which aimed to reform a highly business-friendly regulatory environment. These laws were designed to limit the power of corporations and deter anti-competitive practices, while also protecting workers. After decades of the laissez faire economic principles and unchecked corporate power that had defined the Gilded Age (approximately 1870 through 1900), the country’s temperament was shifting towards a more pro-labor and public welfare direction. This shift not only shaped modern employment practices, but also set the stage for many of the civil and human rights advances in the second half of the 20th Century.

As structured, workers’ compensation laws, including Idaho’s, sought to balance an employer’s interests with employees’ needs by guaranteeing benefits to an injured worker, but at the same time capping an employer’s liability for these injuries. From this attempted balance, the Grand Bargain was born.

The exclusive remedy rule

The Idaho Supreme Court has described Idaho’s Worker’s Compensation Act as a compromise between injured workers and their employers that provides a limit on liability for employers in return for providing sure and certain relief for the injured worker.[5]  This sure and certain relief is provided to the exclusion of every other remedy, proceeding, or compensation, except as otherwise provided in the statutory framework.[6]  

Workers’ compensation laws combine tort law and social insurance.  Arthur Larson, one of the most published authors in workers’ compensation legal analysis has summarized this blending as follows: [7]

Like tort, but unlike social insurance, its operation mechanism is unilateral employer liability, with no contribution by the employee or the state; like social insurance, but unlike tort, the right to benefits and amount of benefits are based largely on a social theory of providing support and preventing destitution.[8]

Workers compensation insurance enables employers to confidently label each year’s costs associated with workplace injuries

The costs were no longer dependent on the number or severity workplace injuries. The amount of compensation for each injury was also no longer left to the often-unpredictable hands of a judge or jury.

For employees, the Grand Bargain’s benefit was also one of certainty

Under workers’ compensation laws, employees would no longer have to endure the costs and delays of the civil courts to obtain compensation. Once injured at work, an employee reports the injury and is promptly sent for medical attention that is paid for by the employer or its surety. If an injury causes the worker to miss work, then she is immediately paid time-loss wages.  Not surprisingly, receiving prompt monetary and medical benefits without having to prove fault for the injury has been one of the more appealing aspects of the Grand Bargain.

The Grand Bargain applied to Gomez’s Case

In Gomez’s case, the Grand Bargain meant that the Crookham Company accepted certain responsibility to Gomez (through her surviving family) to pay statutory death benefits under Idaho Code §72-413. In that respect, the Grand Bargain meant Crookham had knowledge that these benefits would not exceed a certain amount. This came in exchange for Gomez’s family not having to prove that Gomez or another party was not negligent in causing the accident. 

Was it a Bargain—And If So, Did Labor or Industry Reap the Bigger Benefit?

Some argue workers were the clear beneficiary of the Grand Bargain, at least at the time. The nation’s policy to protect injured workers came at a time when labor unions’ voices were much stronger. The collective transformation in employment laws that the Grand Bargain represented would be unimaginable in today’s political landscape. Labor’s triumph was that in most states, employees never directly pay for their own worker’s compensation benefits. Rather, the employer is mandated to purchase workers’ compensation insurance, either through a private carrier or a fund managed by the state, such as the Idaho State Insurance Fund.[9]

However, it is important to also recognize that employment practices have evolved since the Grand Bargain began, and with them, employees’ rights and employers’ responsibilities. The early 20^th century saw workplaces in the U.S. begin to transform from primarily physical work as part of an industrial economy into more sedentary work to support a service-based economy.

The Grand Bargain’s Quid Pro Quo

As Adam Scales for the Rutgers Law Review wrote, “once struck, the Grand Bargain created entitlements that became virtually immovable.” [10]  Indeed, tort remedies and awards availed to injured plaintiffs outside the workplace (such as damages for pain and suffering), have been limited through state tort reform legislation.  Yet similar efforts to limit remedies have been virtually non-existent in the workers’ compensation arena. The system of damages available to injured workers from a century ago remains in place today—in fact, by some measures, the availability of damages to injured workers has improved since the Grand Bargain’s inception.

An example of this is seen in Vawter v. United Parcel Service, Inc., which also serves as a classic paradigm of the “no fault” advantage employees enjoy under Idaho’s worker’s compensation law.[11]  In that case, Mr. Vawter injured his back on the job while bending over to tie his bootlaces.  Because the Idaho Supreme Court found that he did so within the course and scope of his employment, the claim was not only compensable, but Mr. Vawter was awarded total and permanent disability benefits as a result of the injury. This means that he will be paid medical and time loss benefits not just until retirement age, but until he dies. The result in Vawter is a kind of success for injured workers that the labor movement behind workers’ compensation laws could not have imagined.

In contrast to the result in Vawter, injured workers also face multiple hurdles.  Injured workers must navigate more red-tape and employer and surety influence than was likely contemplated by the early 20^th century labor movement. For instance, once injured, the employee must go to only physicians chosen by their employer. Then, only treatment through the “chain of referral” by the employer-chosen physician is authorized. Additionally, only medication prescribed by a “chain of referral” provider will be covered. In other words, the employee cannot seek outside care and have it covered by their workers’ compensation insurance.

Further, waiting for employer-surety authorization for treatment and medication can delay their return to the job and in some cases, results in their condition worsening. Moreover, nurse case mangers hired by the employer-surety can interfere in the physician-patient relationship by attending appointments and pushing conservative care or rushed treatment timelines. In some cases, the employer-surety will “cut-off” treatment before the employee finds symptom relief. Delayed treatment makes the injury worse. The list of obstacles that can prevent a worker from receiving prompt and cohesive medical care is near infinite.

First Responders and Psychological Injuries

The Gomez case highlights another shortfall in the Grand bargain: compensating for psychological injuries received on the job, and how that shortfall is changing.  Upon witnessing the scene of Gomez’s industrial death, first responders were subject to unimaginable sights that may be forever seared in their minds. Such an experience can often to lead to sleep loss, appetite changes, nightmares, depression and other symptoms of PTSD.  Yet, in 2016, there was no remedy for the psychological injuries that first responders routinely face as result of their employment. This was because workers’ compensation was limited to physical injuries suffered through employment; strictly mental suffering was not considered to be a compensable workplace injury under the Idaho’s and many other states’ workers’ compensation laws.

However, in 2019, Idaho amended its workers’ compensation law to provide that post-traumatic stress injuries suffered by a first responder is a compensable injury if there is clear and convincing evidence that the post-traumatic injury was caused by an event arising out of an in the course of employment. [12] Interestingly, while various measures for tort reform in recent decades would seek to limit the damages of the first responders in this situation, this is another area where workers compensation benefits have expanded. To date, though, compensation for strictly psychological injuries suffered through employment is limited to first responders, which means that employees who may witness an accident like Gomez’s still face often insurmountable obstacles to being compensated for workplace trauma. Despite witnessing one of the most horrific scenes imaginable, Gomez’s coworkers do not have a compensable workers’ compensation claim  unless their psychological injuries are accompanied by bodily injury.[13]

Does Is the Grand Bargain Remain Grand?

The workers compensation system has hints of the dreaded “forced arbitration” form of resolving disputes. In detaching the right to a jury trial, access to pain and suffering damages and imposing caps on wage-loss damages, it is not surprising that the injured worker may feel shorted in today’s justice system.[14]  Contrarily, employers and their sureties encounter their own frustrations, as exemplified in the Vawter case.

Both labor and industry are coming to age and recognizing these and other flaws in the Grand Bargain’s design. It’s an antiquated arrangement that, while trying to evolve, is struggling to evolve to either labor’s or employees’ liking.  Professor Morantz has observed, the injured worker sees limitations and constraints on obtaining benefits while the employers’ insurance costs, legal fees and adjudicatory scrutiny increase.[15]  Morantz recently articulated “[t]he U.S. workers’ compensation system is at a historic crossroads,” with the “grand bargain” unraveling, providing satisfaction to few, if any, of its stakeholders.[16]

Conclusion

So, is it Grand? As a counterweight to Professor Morantz, Ellen Relkin, a noted Plaintiffs’ trial lawyer and frequent lecturer on complex litigation matters, summarized in the Rutgers Law Review that:

As beleaguered as it is, the premise of the Grand Bargain remains sound: we still need a system that fairly compensates workers for workplace injuries and does so faster and more efficiently than common-law litigation through the courts usually does. The critical need is to stabilize compensation systems and make them more equitable.[17]

Although many contend that both labor and industry have outgrown the exigencies of the industrial revolution, one basic premise of the Worker’s Compensation Act holds steady: The welfare of the state depends upon its industries and even more upon the welfare of its wageworkers.[18] If the goals of workers’ compensation laws continue to recognize this aim, then there is at the very least, grand intent.  

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Endnotes

[1] Gomez v. Crookham Co., 166 Idaho 249, 457 P.3d 901 (Idaho 2020).

[2] Following Gomez’s death, OHSA issued Crookham “serious” violations because the company had exposed its employees to the unguarded drive shaft without proper safety precautions.

[3] Title 72 of the Idaho Code. 

 

[5] Marek v. Hecla, Ltd., 161 Idaho 211, 215 384 P.3d 975, 979 (Idaho 2016). Blake v. Starr, 146 Idaho 847, 851, 203 P.3d 1246, 1250 (2009); Yount v. Boundary Cty., 118 Idaho 307, 307, 796 P.2d 516, 516 (1990)(“Such being the quid pro quo for eliminating the previous remedy of seeking a tort recovery from employers.”).

[6] I.C. §§ 72-201, 72-209, and 72-211; Robinson v. Bateman-Hall, Inc., 139 Idaho 207, 209, 76 P.3d 951, 953 (2003).

[7] Larson’s Workers’ Compensation Law- Cornell Law Review, Vol. 37, Issue 2 Winter 1952-Nature and Origins of Workers’ Compensation by Author Larson.

[8] Id.at sec.52.02. 

[9] The SIF is an independent body corporate politic which the Idaho Supreme Court has ruled to be an agency of the state serving a public purpose and carrying on and effecting a proprietary function (§72-901(1); State v. Musgrave, 84 Idaho 77, 370 P. 2d 778 (1962)).

[10] Adam F. Scales, Toward a Less-Grand Bargain for Injured Workers, 69 Rutgers Law Rev. 4 (2017).

[11] Vawter v. United Parcel Service, Inc., 318 P.3d 893, 895 (2014).

[12] I.C. 72-451

[13] Id.

[14] Robert L. Rabin, Accommodating Tort Law: Alternating Remedies for Workplace Injuries, 69 RUTGERS U.L. REV. 1119 (2017). 

[15] Id.

[16] Alison Morantz, Economic Incentives in Workers’ Compensation: A Holistic International Perspective, 69 RUTGERS U. L. REV. 1015 at 1078 (2017). 

[17] Ellen Relkin, The Demise of the Grand Bargain: Compensation for Injured Workers in the 21^st Century, Rutger Univ. Law. Rev. Vol 69; 883, Iss. 3., p.  (2017)

[18] I.C. 72-201

Matthew G. Gunn

Erica S. Phillips

Published May 2022

When lay persons, and even attorneys, discuss questions of constitutional law, they are usually discussing issues implicating the United States Constitution or, less frequently, provisions of a state constitution that substantially mirror an oft-cited clause or amendment of the United States Constitution. Only very rarely are such conversations centered on unique provisions of a state constitution not derived from the federal constitution.  One such provision, found in the state constitutions of forty states, including Idaho, is commonly known as an “open courts” provision.[1]  This article will discuss the open courts provision including its sources, application in other states, use in Idaho, and  conclude by questioning the scope and purpose of the provision. 

Idaho’s open courts provision

Idaho’s version of an open courts provision is enshrined in Article I, Section 18 of the Constitution of the State of Idaho:

JUSTICE TO BE FREELY AND SPEEDILY ADMINISTERED. Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice.

Although no closely analogous provision exists in the United States Constitution, legal scholars have concluded that these provisions “derive[ ] ultimately from Magna Carta, where it took the form of a promise extracted from King John to reform his courts.[2]

By its plain language, Article I, § 18 guarantees to “every person” in Idaho a “speedy remedy . . . for every injury of person, property or character . . .”   Unlike other rights enshrined in state constitutions, there is no guidance from the United States Supreme Court as to the meaning of the open courts provision. Thus, the question of what rights are provided by the open courts provision is left solely to the state supreme courts and, unsurprisingly, there is no single consensus among those states.

“Open courts” provisions interpreted by other states

Although all states have recognized that the open courts provision provides some procedural due process protections, some courts have held that this provision goes further and provides protection for substantive rights as well. This distinction was helpfully explained by Chief Justice Thomas Phillips of the Texas Supreme Court:

While it is universally agreed that the open courts provision guarantees a right of access to the courts, there is great divergence among the various states regarding the extent, if any, to which it accords constitutional protection to existing substantive remedies.

In many states, for example, the provision is nothing more than a procedural guarantee of judicial availability.[3]

A greater number of states, however, appear to place some substantive restrictions on the legislature’s authority to abolish or restrict well-established remedies and defenses, particularly common law causes of action. This restriction appears to be absolute only in those few states which also constitutionally forbid any legislative restriction on damages.[4] Other states require, in one form or another, a judicial balancing of the individual right to assert a recognized remedy with the public necessity for abrogating or restricting that right.[5]

Unlike many issues in our politics and society such as firearms or marijuana laws, the interpretation of the open courts provision does not fall on readily identifiable ideological lines. In fact, states that have recognized a substantive right in their open courts provision include Texas, Ohio, Arizona, Missouri, and Alaska, none of which are commonly understood to be more “liberal” states. Thus, the distinction in the interpretation of the open courts provision does not appear to be a neatly ideological distinction, but rather a purely legal distinction in how to give meaning to the rights set forth in the open courts provision.

In states where the open courts provision has been found to convey a substantive right, the provision has been used to strike down attempts to limit access to the courts through immunity provisions or statutes of limitation.  For example, the Texas Supreme Court first recognized the protections provided by Article I, § 13, the open courts provision, of the Texas Constitution in Hanks v. City of Port Arthur, 48 S.W.2d 944, 948 (Texas 1932), holding that the open courts provision of the Texas Constitution did not allow ordinances or statutes that “unreasonably abridge[] a justiciable right to obtain redress for injuries caused by the wrongful acts of another.”[6] On this basis, the Texas Supreme Court struck down an ordinance that eliminated liability against the City for any injury or damage arising from a defect in a public street or public grounds, unless the Commissioners had actual notice of the defect by personal inspection or written notice at least twenty-four hours before an injury or damage occurred.[7] 

Open Courts Provisions and Minor Limitations Periods

One of the most common applications of open courts provisions to protect substantive rights has been in the area of statutes of limitation applicable to minors.  In 1983, the Texas Supreme Court used Article I, § 13 to strike down a two-year statute of limitations for medical malpractice cases which applied regardless of the age of the plaintiff except for minors under the age of six who had until their eighth birthday to bring a suit.[8] In so holding, the Texas Supreme Court stated:

A child has no right to bring a cause of action on his own unless the disability has been removed. If the parents, guardians, or next friends of the child negligently fail to take action in the child’s behalf within the time provided by article 5.82, the child is precluded from suing his parents on account of their negligence, due to the doctrine of parent-child immunity. The child, therefore, is effectively barred from any remedy if his parents fail to timely file suit.

. . . . Therefore, we declare the limitations provision of article 5.82, section 4, to be in violation of article I, Section 13 of the Texas Constitution.[9]

The Alaska Supreme Court reached the same conclusion in addressing a statute of limitations that would expire prior to a minor reaching the age of majority, holding “[w]e therefore conclude that when subsection AS 09.10.140(c) forecloses a minor’s personal injury claim because his or her parents or guardians have failed to timely file suit it violates the minor’s procedural due process right of access to the courts. … We stand with [other courts] today in declaring that the State cannot lightly close the courthouse doors to minors.”[10] 

The Missouri Supreme Court also struck down a minor’s statute of limitations, stating:         

Our society takes great pride in the fact that the law remains forever at the ready to jealously guard the fights of minors. [Section 516.105] arbitrarily and unreasonably denies them a set of rights without providing any adequate substitute course of action for them to follow.[11]

The Arizona Supreme Court similarly found that “[t]he statute abolishes the action before it reasonably could be brought, in violation of the fundamental constitutional right guaranteed by article 18, § 6.”[12] The Ohio Supreme Court agreed, stating “we hold that R.C. 2305.11(B) is unconstitutional as applied to minors under the due course of law provisions of the Ohio Constitution.”[13]

In each of these cases, the conclusion of the respective state supreme court was that a statute of limitations which would expire before a minor reached the age of majority and was able to bring a lawsuit on their own behalf was a violation of the open courts provision because it effectively shut the door of the courthouse to a minor who had no other recourse to vindicate their rights.  Thus, the substantive right granted was, literally, the right to access the courts to seek a remedy for an injury – a right entirely consistent with the express language of the open courts provision.

“One of the most common applications of open courts provisions to protect substantive rights has been in the area of statutes of limitation applicable to minors.”

The Idaho Supreme Court’s interpretation of the open courts provision

Unlike the states discussed above, the Idaho Supreme Court’s interpretation of Article I, § 18 is that it provides no substantive rights. The Idaho Supreme Court’s analysis of the open courts provision begins with Moon v. Bullock.[14]  In Moon the Idaho Supreme Court “refused to interpret art. 1, § 18, as guaranteeing a remedy to every person for every injury. . . . We thus approved in Moon the holding that art. 1, § 18, merely admonishes the Idaho courts to dispense justice and to secure citizens the rights and remedies afforded by the legislature or by the common law, and that art. 1, § 18, did not create any substantive rights.”[15]

Based on this interpretation, the Idaho Supreme Court has clearly established the right of the legislature to set limitations on actions and even to abolish common law rights of action without violating Article I, § 18. In Olsen v. J.A. Freeman Co., the Court held that “[a] statute placing limitations on remedies does not contradict the provision of the Idaho Constitution that courts of justice shall be open to every person and a speedy remedy afforded for every injury of person.”[16] Similarly, in Jones v. State Bd. of Medicine, the Idaho Supreme Court held that the legislature clearly has the power to abolish or modify common law rights and remedies.[17]  

Most recently, in Gomersall v. St. Luke’s Regional Medical Center, the Idaho Supreme Court was asked to determine whether the open courts provision could protect minors from being barred from the courthouse by a running of the statute of limitations prior to the minor reaching the age of majority.[18]  In response, the Idaho Supreme Court rejected the analysis adopted by the Texas, Alaska, Missouri, Arizona, and Ohio courts and reaffirmed its holdings that Article I, §18 conveys no substantive rights to the citizens of the State of Idaho: “this Court has consistently held, however, that Article I, §18 of the Idaho Constitution does not create any substantive rights . . . Rather, Idaho’s open courts provision merely admonishes Idaho courts to dispense justice and to secure citizens the rights and remedies afforded by the legislature or by the common law . . . .”[19]

What is an admonishment to dispense justice?

 The Idaho Supreme Court’s line of decisions interpreting Article I, §18 as providing no substantive right, but only an admonishment to the Idaho courts to dispense justice, raises obvious questions as to what, if anything, the open courts provision protects.  It is axiomatic that a provision in the state constitution must have meaning, but the Idaho Supreme Court has repeatedly declined to ascribe firm meaning to the open courts provision.

What does an “admonishment. . . to dispense justice” mean if an entire class of persons, such as minors, can be barred from pursuing a remedy for an injury on their own? Can the legislature, without violating the open courts provision of the Idaho Constitution, eliminate all tort causes of action? Can the legislature, without violating the open courts provision, literally bar the door to the courthouse to all but criminal cases?  How can courts of the State of Idaho dispense justice if citizens can be barred from the courthouse? The answers to these questions are difficult to divine based on the Idaho Supreme Court’s current open courts jurisprudence.

In search of such answers, attorneys will continue to argue that the plain language of Article I, § 18 of the Idaho Constitution provides some minimum threshold of access to justice for those who have suffered an injury to person, property or character in order to give meaning to this provision of the Idaho Constitution.  One perpetual question created by Idaho’s failure to recognize a more substantive right is what limits, if any, are placed on the legislature’s ability to dictate jurisdictional elements to the Court?  Inherently, we all understand that our system imposes limits upon each branch, but in regard to Article I, § 18, those boundaries remain undefined.

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Endnotes

[1] Patrick John McGinley, Results from the Laboratories of Democracy: Evaluating the Substantive Open Courts Clause as Found in State Constitutions, 82.4 Alb. L. Rev. 1449, 1445 (2019).

[2] David Schuman, The right to a Remedy, 65 Temp. L. Rev. 1197, 1199 (1992)

[3] See, O’Quinn v. Walt Disney Productions, Inc., 177 Col. 190, 195, 493 P.2d 344, 346 (1972); Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 24, 644 P.2d 341, 346 (1982); Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 404 N.E.2d at 594 (Ind. 1980); Prendergast v. Nelson, 199 Neb. 97, 103-06, 256 N.W.2d 657, 663-65 (1977); Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 279-81, 382 A.2d 715, 720-21 (1978).

[4] See, e.g., ARIZ. CONST. art. 18, § 6; KY. CONST. § 54. WYO. CONST. art. 10, § 4.

[5]Lucas v.United States, 757 S.W.2d 687, 715 (Tex. 1988) (Phillips, Chief J., dissenting) (some internal citations omitted).

[6] Hanks v. City of Port Arthur, 48 S.W.2d 944, 948 (Tex. 1932).

[7] Id.

[8] Sax v. Votteler, 648 S.W.2d 661, 663 (Tex. 1983).

[9] Id at 666-667; see also Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex. 1995) (affirming Sax and noting that “[w]e fail to see any benefit in requiring a minor to show that his or her parent was incompetent or failed to act in the minor’s best interests by not pursuing a medical malpractice claim, especially when the very failure of the parent to do so leaves the minor without any legal recourse”).

[10] Sands v. Green, 156 P.3d 1130, 1134-1136 (Alaska 2007).

[11] Strahler v. St. Luke’s Hosp., 706 S.W.2d 7, 10 (Mo. 1986).

[12] Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 692 P.2d 280, 285-286 (Ariz. 1984). 

[13] Mominee v. Scherbarth, 503 N.E.2d 717, 721-722 (Ohio 1986). 

[14] 65 Idaho 594, 151 P.2d 765 (1944), overruled on other grounds, Doggett v. Boiler Engineering & Supply Co., Inc., 93 Idaho 888, 477 P.2d 511 (1970):

[15] Hawley v. Green, 117 Idaho 498, 500-501, 788 P.2d 1321, 1323-1324 (1990).

[16] 117 Idaho 706, 717 (1990).

[17] 97 Idaho 859, 555 P.2d 399 (1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977); see also Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982)(It is well established that the “open courts” provision governing access to courts of justice does not prohibit the legislature from abolishing or modifying a common-law right of action).

[18] 483 P.3d 365 (Idaho 2021).

[19] Id. at 373 (internal quotations and citations omitted).

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 [BK1]The Board recommends that the conclusion be strengthened–I took a stab to help brainstorm–please feel free conclude the way you want.

Regina M. McCrea

Published May 2022

For years trial judges and attorneys have grappled with unconscious or implicit bias in the jury pool.  Research shows that people tend to view themselves as more objective, even-handed, and insightful than they actually are.  Although individuals willingly recognize attribution bias in others, they lack such awareness in themselves.[1]

Given that inherent prejudice influences impressions drawn from evidence and witness testimony, it will also permeate jurors’ deliberations and final decision-making.  Despite a general acknowledgment of this problem and direct attempts to address it (through admonishments against jumping to conclusions premised on nothing more than gut feelings, generalities, stereotypes, etc.), the public continues to view the legal system with distrust and increasingly questions the fundamental fairness of jury trials.

Against this backdrop, several states have taken steps to combat eroding confidence in the courts and to restore belief in American jurisprudence.  Such developments range in scope from creating special task forces for further research to transforming traditional concepts of jury selection.  This article explores the unprecedented change one state has made, beginning with a review of the history, and ending with a brief discussion of practical implications.

Traditional approach to jury trials

The common law jury system has been universally revered.  In 1765, the First Congress of the American Colonies resolved and declared, “That trial by jury is the inherent and invaluable right of every British subject in these colonies.”[2]

Less than 10 years later, the First Continental Congress again affirmed, “That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.”[3]  The right is ensconced in the 6th and 7th Amendments of the U.S. Constitution and can be found in Art. 1, § 7 of Idaho’s Constitution wherein the number of jurors is specifically defined―juries in civil cases will consist of 12 members unless the parties agree to a lesser number.

In 1971, the Idaho Legislature adopted the Uniform Jury Selection and Service Act, which the National Conference of Commissioners on Uniform State Laws approved.[4]  This Act vests the Idaho Supreme Court with the power to promulgate rules pertaining to jury service.[5]

Consequently, the procedural rules encompass most aspects of jury administration, such as using written questionnaires, permitting voir dire examinations, and establishing a method and manner for striking prospective jurors.[6]  Attorneys have two tools to remove individuals harboring preconceived beliefs about the case or their clients: “for cause” and “peremptory” challenges.

With peremptory challenges, no reason need be given; however, “for cause” strikes must fit one of the following grounds: (1) not meeting the qualifications specified by Idaho Code,[7] (2) having a special relationship with a party, such as familial, business, or debtor/creditor, (3) possessing a financial interest in the litigation, (4) holding a pre-formed opinion about the case, or (5) adhering to a belief that is hostile to or biased against a party.[8]

As one would expect, most challenges relate to perceived hostility and/or bias, and whether removal is justified depends entirely on the information elicited.  The Idaho Supreme Court has interpreted Rule 47 to mean the trial court bears primary responsibility for selecting competent and impartial jurors.  For this reason, judges may freely question panel members to gain further insight into their views and obtain clarification on their ability to keep an open mind.[9]  Unfortunately, in practice, after a judge rehabilitates a prospective juror and evokes a commitment that an identified bias can be set aside through the course of trial for purposes of fair play and equality, a litigant generally will exercise a peremptory challenge to have the individual discharged.[10]

“As one would expect, most challenges relate to perceived hostility and/or bias, and whether removal is justified depends entirely on the information elicited.”

For civil trials in state court, each party has the opportunity to use four peremptory challenges; for criminal proceedings, the number depends on the severity of the charges― misdemeanors (4), felonies (6), and felonies involving death or life sentences (10).

Over the course of the COVID-19 pandemic, the Idaho Supreme Court modified these provisions and, in addition to requiring that courts employ the struck jury system, reduced the number of peremptory strikes as follows: civil cases (2), misdemeanors (2), felonies (3).  The applicable number permitted in criminal cases entailing an offense punishable by death (10) did not change.[11]  The Idaho Supreme Court subsequently removed these limits as of August 2, 2021.[12]

Beyond the numerical limit, attorneys also cannot engage in discriminatory practices during jury selection and exclude a juror peremptorily based on race or gender.

Discriminatory use of peremptories

In Batson v. Kentucky, 476 U.S. 79, 99 (1986) and in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 145—46 (1994), the United States Supreme Court confronted the reality of peremptory challenges having been used for discriminatory purposes.  Over the years the Court has repeatedly affirmed its commitment to jury selection procedures that do not offend equal protection principles and are “free from state sponsored group stereotypes rooted in, and reflective of, historical prejudice.”[13]  Where prejudice motivates discriminatory use of peremptory challenges, it affects the entire proceedings, puts the fairness of the outcome and the jury’s neutrality at risk, and inevitably leads to a “perpetuation of invidious group stereotypes” as well as a “loss of confidence in [the] judicial system that state-sanctioned discrimination in the courtroom engenders.”[14]  When an inference of discrimination is shown, the opposing party must identify a neutral reason for the challenge―intuitive judgment will not suffice.[15]

In writing a separate concurring opinion in Batson, Justice Thurgood Marshall expressed his view that discrimination would continue to infect the jury selection process and could only be stopped “by eliminating peremptory challenges entirely.”[16]  He espoused such an approach for two main reasons.  First, a discriminatory inference will be difficult to establish except in the most flagrant of cases.[17]  Second, trial courts face an unenviable task of assessing motives and evaluating “easily generated explanations” from attorneys who may not even recognize their own “conscious or unconscious racism.”[18]  Historic importance of the practice aside, Justice Marshall argued the best course forward would be to remove the inherent potential for discrimination to distort the jury process completely and no longer permit discretionary strikes in criminal cases.

Ending peremptory challenges in jury selection

Now, one state has chosen to pursue the path suggested by Justice Marshall.  On January 1, 2022, Arizona entirely abolished peremptory exclusions.[19]  Two sitting judges of the state’s court of appeals initiated the change, advocating it would definitively stop intentional and unintentional bias in jury selection and eliminate court involvement with reviewing Batson claims.[20]  The authors emphasized that the United Kingdom stopped the usage in 1988 and that Canada made the same modification to its trial procedures in 2019.  Byproducts of disallowing peremptory challenges include streamlining proceedings and reducing the overall number of individuals summoned for jury duty, who “make the effort to appear [and] are merely fodder for arbitrary hunch-based strikes.”[21]

 The authors argued that constitutional mandates lose their integrity when the initial panel represents a fair cross-section of the community, but the final panel reflects “favorable imbalance.”  Moreover, “anyone who has competently tried a case in the last century knows that the practical use of peremptories is to achieve some (perhaps illusory) partiality in the final jury.”[22]

The petition cited multiple studies identifying discriminatory trends in the use of peremptory challenges and data exhibiting “an empirical imbalance between the demographics of the overall population and jurors seated under our current system.”[23]  These statistics generate distrust and foster a legitimate perception that court rules authorize attorneys to engage in de facto discrimination.[24]  For these reasons and in an effort to restore public confidence and respect in the justice system, the authors concluded by strenuously recommending a “death blow” to all peremptory strikes.[25]

During the comment period, opponents raised many of the same concerns.  To start, practitioners believed the time needed for voir dire would be significantly impacted and that, in general, trial judges are not receptive to permitting lengthy examinations (perhaps attributable to managing the trial schedule, undervaluing the importance of jury selection, or wanting to protect the venire from perceived improper questioning or having to reveal private, embarrassing, traumatic and impactful experiences).  Attorneys emphasized the time needed to discover and explore quality information on which they can intelligently exercise a for cause challenge.  Jurors often feel reluctance when asked to divulge personal facts about themselves in a public setting.  It takes time for them to become comfortable expressing their views. 

Further, many comments highlighted increased difficulty with finding open-minded people.  The public has heard about tort reform and frivolous lawsuits for years, and such attitudes become deeply ingrained.  Few people recognize their implicit biases, and practitioners face a daunting task revealing their existence.  General inquiries simply cannot sufficiently detect “jurors with views preventing or substantially impairing their duties in accordance with their instructions and oath.”[26]

Moreover, when a prospective juror verbally acknowledges bias (a rarity in itself), judges typically inquire whether the juror will pledge to be “fair and impartial.”  Thirty years ago, the US Supreme Court recognized jurors will “in all truth and candor respond affirmatively, personally confident that [their] dogmatic views are fair and impartial, while leaving the specific concern unprobed.”[27]

Thus, the strongest point of contention for keeping peremptories is that parties cannot cure an erroneous denial of a challenge for cause.  The ability to use peremptory strikes has long been heralded as a procedural safeguard for ensuring an impartial jury.  When that right is unavailable, parties will likely appeal, arguing reversible error premised on a failed attempt to remove a juror for cause.  Consequently, judicial resources may not be saved at all; instead of reviewing Batson arguments, courts of appeals would be tasked with analyzing juror biases.[28]

Key takeaways for practitioners

Striving for juries that mirror a community’s demographics and varying ethnicities increases the legitimacy of trial verdicts.  Such “cross-sections” epitomize the principal purpose behind one’s right to a jury of one’s peers.  Having made this unprecedented change, Arizona has become a case study for the rest of the country.[29]

If shown to be successful, more jurisdictions may follow Arizona’s lead.  Regardless, trial judges should refrain from securing hollow commitments from prospective jurors, and practitioners should work more vigorously to establish valid for cause challenges.  Observations concerning prospective jury members’ demeanor should be clearly articulated on the record so that information can be considered along with their verbal responses to voir dire questioning.  Facial expressions, body language, tone of voice, and even attire may be relevant indicators as to whether an individual disfavors a particular litigant or criminal defendant.  The record will not reflect these elements without attention being drawn to them, and they may make the difference in whether a valid challenge for cause is sustained.

Having cases decided by a jury of one’s peers continues to be a fundamental component of the court system, but that does not mean the related procedural processes should remain static.  The legal industry can and should continue to explore reform and implement creative solutions as needed while retaining the many positive virtues jury service brings to civic engagement and democracy.

“Striving for juries that mirror a communities demographics and varying ethnicities increases the legitimacy of trial verdicts.”

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Endnotes

[1] See, e.g., Armor, D.A, The Illusion of Objectivity: A Bias in the Perception of Freedom from Bias, 59(9-B) Dissertation Abstracts International: Section B: The Sciences and Engineering 5163 (1999).

[2] Department of Alfa-Informatica of the University of Groningen, “The Resolutions of the Stamp Act Congress October 19, 1765” American History from Revolution to Reconstruction (1994—2012), http://www.let.rug.nl/usa/

documents/1751-1775/the-resolutions-of-the-stamp-act-congress-october-19-1765.php.

[3] Id. See also “Declaration and Resolves of the First Continental Congress October 1774,” http://www.let.rug.nl/usa/

documents/1751-1775/declaration-and-resolves-of-the-first-continental-congress-october-1774.php.

[4] See I.C. § 2-201 et seq.

[5] I.C. § 2-220.

[6] I.R.C.P. 47; I.C.R. 23.1, 24.

[7] These qualifications include being a resident citizen who is at least 18 years of age and who understands English.  See I.C. § 2-209.

[8] I.R.C.P. 47(h)(2).

[9] Quincy v. Joint Sch. Dist. No. 41, Benewah Co., 102 Idaho 764, 768, 640 P.2d 304, 308 (1981).

[10] See, e.g., Stoddard v. Nelson, 99 Idaho 293, 296, 581 P.2d 339, 342 (1978).

[11] Idaho Supreme Court Order Re: Jury Trials, dated 7/24/20.

[12] Idaho Supreme Court Order Re: Emergency Order regarding Court Services, dated June 24, 2021.

[13] J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994).

[14] Id. at 140–41.

[15] Batson v. Kentucky, 476 U.S. 79, 97 (1986).

[16] Id. at 103.

[17] Justice Marshall believed discrimination would still occur, but with restraint “to an acceptable level.”  Id. at 105.

[18] Id. at 106.

[19] See generally https://www.azcourts.gov/Rules-Forum/aft/1208. Two states have gone a different route.  In 2018, the Washington Supreme Court added a new rule concerning jury selection, which expands the Batson prohibition and has been termed Batson plus.  See GR 37.  In 2020, the California legislature passed a bill which disallows particular reasons for striking jurors and outlines an objective test for measuring discriminatory motives.  The law applies to criminal cases beginning in 2022, but will not affect civil jury trials until 2026.  See, e.g., Cal. Code of Civ. Proc. § 231.7.  See also State v. Andujar, 254 A.3d 606, 631 (N.J. 2021) (calling for the Director of the Administrative Office of the Courts to arrange a conference to explore discrimination in jury selection, examine authoritative sources and practices, and make recommendations for improvement, including, but not limited to, changes to the procedural rules and, further, inviting “the legal community as a whole to take part in a probing conversation about additional steps needed to root out discrimination in the selection of juries”).

[20] Peter B. Swann and Paul J. McMurdie, “R-21-0020 Petition to Amend Rules 18.4 and 18.5 of Rules of Criminal Procedure and Rule 47(e) of the Arizona Rules of Civil Procedure” Arizona Judicial Branch (Jan. 11, 2021), https://

www.azcourts.gov/Rules-Forum/aft/1208.

[21] Id. at 4.

[22] Id. at 8.

[23] Id. at 12.

[24] Id. at 13—14.

[25] Id. at 15.

[26] Morgan v. Illinois, 504 U.S. 719, 734-35 (1992).

[27] Id. at 735.

[28] For additional ideas to modernize the sometimes “inefficient, unreliable, unpredictable, and impractical” jury trial, see Christopher Robertson & Michael Shammas, The Jury Trial Reinvented, No. 21-05 Boston University School of Law Public Law & Legal Theory Paper (2021), https://scholarship.law.bu.edu/faculty_scholarship/

1086.

[29] But see Arizona House Bill 2413, https://apps.azleg.gov/BillStatus/BillOverview/76919 (proposal to reinstate peremptory challenges).