Author: Lindsey Welfley

By Tenielle Fordyce-Ruff

Well, the pandemic was a wild ride for me!  In the switch to stay-at-home, then pandemic pods, I was also pivoting to online teaching, then I moved to two different law schools in 18 months.  Needless to say I took a pandemic pause from this column.  My life, however, is a little less chaotic now, so I’m back.

Inspired by my pause, I settled on discussing problematic “P” words for my comeback.  Sit back and enjoy learning a little more about “P” words that might give you pause when you’re writing.

Pandemic/Epidemic/Endemic

This set made me giggle as I was researching this column.  I am certain you all understand the difference by 2023, so no more about this!

Perimeter/Periphery

Both perimeter and periphery mean an outer boundary.  Perimeter is a clear line, but periphery is more uncertain.

The perimeter of his property was a fence on the north side, but the periphery was unclear on the other sides.

Partake in/Partake of

Partake in means to take part in.  Partake of means to receive a share of something.

Participants partake in a public forum.  Children partake of cake and ice cream parties.

Partly/Partially

I love this one because it involves ambiguity and measure.  If the parts are physical or you can measure extent, use partly.  If you are referring to quality or the measure is of degree, use partially.

Downtown is full of partly finished buildings.  She is partially recovered from her severe sprain.

If either word could work in context, use partly.  It’s less ambiguous.  And remember, partially also means showing favoritism.  The estate was partially divided among the children.

Past/Passed

This is a tricky one.  After all, “the past has passed.”[i]

As an adjective, past means gone or elapsed.  As a noun it refers to time gone by or the history of something.  As a noun, passed refers to the act of passing; as a verb it means to go by or to let go without action.  So, you can reminisce about times past, but the days passed in quiet contemplation.

Patent/Latent

First, a note about pronunciation here.  Both patent and latent are pronounced with along <a> sound, so they rhyme.  If you say patent with a short <a>, you are talking about a long-term monopoly granted to an inventor.

To be patent, a thing is open and obvious.  To be latent, a thing is hidden.

Her patent talent was knowing obscure grammar; her latent talent was making excellent coffee.

Peak/Peek/Pique

Ah, the blunders this triple create.  Read this:

Her peak at the book about peaks peaked her interest.

If you were to say this out loud, it would sound fine, but not so in writing.  A peak is a mountaintop.  To peek is to take a quick look.  A pique is a fit of resentment, and to pique is to annoy or arouse.

This would be correct:

Her peek at the book about peaks piqued her interest.

Peddle/Pedal

These are pronounced the same, and that can lead to frequent misspellings.  Peddle means to sell something (I remember this because peddle and sell both have double letters.)  Pedal means to pump with the foot.

Here’s some fun (somewhat obscure) etymology:  one piano pedal softens sounds, so to soft-pedal is to lower the intensity.  This phrase is often misspelled as soft-peddle.

Permit/Allow

While frequently used as synonyms, permit and allow have different connotations.

If you permit something, you give it your approval.  To allow something doesn’t connote approval.

The judge overruled the objection and permitted the question.  Hearing no objections, the judge allowed the question.

Practical/Practicable

Another set of frequently misused adjectives.  Practical means realistic (not just theoretical) or advantageous.  Practicable means feasible.

Paying so much more for such little benefit isn’t practical.  The budget increase made hiring another associate practicable.

Precede/Proceed

The verb forms of precede/proceed are switched often and precede is frequently misspelled as preceed.

Precede means to go before in order or rank.  Proceed means to move forward or to carry on.

She preceded him through the door.  After pausing for a moment to survey the room, she proceeded to sit in a corner chair.

Proceeds (the noun) is something that results or accrues.  The proceeds of the stock sale were divided partly, with some reinvested.

Premise/Premises

Premise refers to logic; it’s a proposition from which a conclusion can be drawn.  Remember this “All men are mortal; Socrates is a man; therefore, Socrates is mortal”?  All men are mortal and Socrates is a man are the major and minor premise in this syllogism.  In fact, we attorneys write using premises all the time.

But, premises (always plural) refers to the space inside the boundaries of a property.  The polite way to tell someone to stay off your lawn is to ask them to leave the premises.

Presently/Currently/Momentarily

While many of us use these terms interchangeably, they don’t mean precisely the same thing.  Presently can mean immediately or soon, but modern usage also includes the meaning of now.  Currently means now.  Momentarily means lasting for a moment, but it also has come to mean in a moment.

To avoid the ambiguity that imprecise use of these terms can bring, write around them. For instance, use soon or now instead of presently.  Use, in a moment instead of momentarily.  After all, telling your client that court is starting presently when you mean now but they hear soon wouldn’t be good.

Conclusion

I am so happy to be back after a pandemic pause.  The peace of writing for The Advocate again is phenomenal. 

Source note:  The inspiration for this is from Bryan A. Garner, The Redbook: A Manual on Legal Style 259-62 (2d ed. 2006).

---

---

[i] Bryan A. Garner, The Redbook: A Manual on Legal Style 260 (2d ed. 2006).

By Laird B. Stone, Idaho State Bar President

The incoming President of the Idaho State Bar.  Wow, an impressive title to some but in reality it gives no more “power” or “importance” than already exists as part of the five-member Board of Commissioners that oversees the workings of the Idaho State Bar.

I recently learned from both written and oral comments given by various Bar members attending the Road Show meetings, some questions exist as to what the Idaho State Bar and Board of Commissioners do.

The easiest answer is to direct you to the Bar’s mission statement:

The mission of the Idaho State Bar is to administer granting the privilege to practice law in Idaho; to control and regulate the legal profession; to protect the public from the unauthorized practice of law and from the unprofessional conduct by members of the Bar; to promote high standards of professional conduct; and to aid in the advancement of the administration of justice.

Knowing the mission, however, is only part of the answer – to carry it out and improve upon it is a duty of the Bar.  To do so, a board needs a plan with checkpoints and a method to review and quantify results to determine whether the mission is being fulfilled.  The board had not done an in-depth strategic planning session for a number of years.  In September of 2022, the commission under the leadership of Kristin Bjorkman had a strategic planning retreat.  Out of that meeting came the following:

Strategic Goal #1 – Advance Bar Member Engagement, Interaction, and the Bar’s Understanding of Bar Members

• Advance Member Engagement
  • Benchmark Current Member Participation Levels; Expand
  • Identify one targeted constituency group per year for enhanced engagement focus and attention

• Advance Bar Interaction with Members
  • Take bar events to members; engage in “listening” events
  • Enhance Commissioner Engagements with Bar Districts
  • Facilitate Partnership Opportunities with Local and Specialty Bars

• Better Understand Bar Member Needs
  • Conduct biennial bar member survey
  • Focus on Rural Lawyer Support and Advancement

Strategic Goal #2 – Advance Initiatives Designed to Build a Better Profession

• Support Well-Being Initiatives to Enhance the Professional Satisfaction of Legal Professionals
  • Expand Education on Well-Being Topics
  • Launch a Well-Being Committee
  • Include Wellness Questions on Bar Survey

• Advance the Inclusivity, Diversity and Sense of Belonging within the Legal Community
  • Continue to Gather and Publish Demographic Data
  • Enhance Pathways for Underrepresented Groups to Serve and Engage in Bar Activities

• Continue to Educate the Bar and Public on the Bar’s Impact
  • Member Benefit Promotion
  • Regulatory Impact/Value
  • Bar Leadership in Public-Facing Programs

At the time that I write this, the Board has not yet met for our January meeting during which we will finalize these goals.  After our January meeting, our next step will be the implementation of achieving these goals.  To help with that implementation, the following checklist[i] compiled by the Association of Community College Trustees may act as a framework from which to base our focus:

• Represent the Community (Bar Members)
  • Know community needs and trends
  • Link with the community
  • Seek out and integrate multiple perspectives when making policy decisions
  • Debate and discuss issues in public (Road Show)
  • Serve the public good

• Act as a Unit
  • Integrate multiple perspectives into board decision-making
  • Speak with one voice; support the decision of the board once it is made
  • Recognize that power rests with the board, not individual commissioners

• Set the Policy Direction
  • Be proactive, visionary, and future-oriented
  • Focus on community needs and trends
  • Establish the vision, mission, and broad institutional goals as policy

• Board-CEO Relations
  • Select and retain the best CEO possible
  • Define clear parameters and expectations for performance
  • Conduct periodic evaluations; provide honest and constructive feedback
  • Support the CEO

• Define Standards for Bar Operations
  • Set policy standards for high quality programs
  • Adopt policies that ensure high expectations
  • Adopt fiscal policies that require wise and prudent use of funds
  • Adopt personnel policies that attract and retain high quality personnel and that ensure fair treatment

• Monitor Instructional Performance
  • Monitor progress toward goals
  • Monitor adherence to operation policies
  • Use pre-established criteria for monitoring
  • Have a timetable for reports

• Create a Positive Climate
  • Model a commitment to the Bar
  • Focus on outcomes
  • Support risk-taking and professional growth
  • Seek consultation in developing of policy
  • Be ethical; act with integrity

• Support and Be Advocates for the Institution
  • Promote the Bar in the community
  • Advocate the needs of the Bar with government officials
  • Support the foundation and fundraising efforts

• Lead as an Educated Team
  • Engage in ongoing learning about board roles and responsibilities
  • Be curious and inclusive
  • Be positive, supportive, and respectful

This is a dynamic plan, and it needs to be reviewed and revised as the Bar’s needs and board members change.

The constants are the mission statement and the staff’s excellent work in carrying that forward through the plan.

The results must be measured both subjectively and objectively.  The surveys, both formal and informal, used by the Bar are some of the tools to be used to measure the progress towards the goals.

The Board’s role as seen from the checklist is to develop policy and practices that assist the staff in the implementation of the strategic plan.  The staff has the responsibility of the daily grind.  The Board has the responsibility to ensure the staff has the tools and the backing of the Board to do their work.  The Board also has the responsibility to oversee that the work is being done in a fiscally responsible manner.

To succeed, a Board must have a strategic plan and set goals to meet the elements of the plan.  The obvious purpose to be to carry out the mission of the organization.  This is not a static objective but one a Board adjusts over time as the goals are achieved or the implementation of the plan needs to be modified to reach the enumerated goals.

An excellent resource in fulfilling a mission and achieving a goal is a book entitled “The Four Disciplines of Execution” by Chris McChesney, Sean Covoy, Jim Huling (2012).  As discussed in this book, the “readers’” Board’s responsibility is to develop the strategy and help with the ability to execute.  The actual work falls to the staff.  We as the board need to ensure there is clarity in the plans and a policy in place that allows the execution thereof, and then get out of the way.

Because the Board bears the ultimate responsibility, it is not a mere rubber stamp, but our active group of five, very professional, moral individuals who care deeply for the integrity of our profession.  This includes speaking up when our stated mission is questioned and/or attacked.  Being willing to listen to all sides and making decision that carry out this mission so that as a Board we can accomplish our goals and make the Bar a dynamic, growing, professional organization.

As for implementation, well it has been going on for years under the capable direction of our director and staff.

A list of the action groups and committees that the Board and Bar office have created over the years and the history of the State Bar run several pages and is available by request from the Bar office.

The best reason for strategic planning and implementation is, as one of the great philosophers said, “You’ve got to be very careful if you do not know where you are going, because you might not get there.”[ii]

This is a brief explanation of what the commissioners are working on and hopefully has not only answered some of the questions that we got from the Road Show but caused some interest to arise in participating in Bar activities.

See you in Boise at the Annual Meeting this July.

---

---

[i]. “Trusteeship in Community Colleges.” by Cindra J. Smith, (Association of Community College Trustees).

[ii]. Yogi Berra.

By Jennifer M. Schindele

Last October, Magistrate Judge Mick Hodges, with support from the Idaho Pro Bono Commission and Idaho Supreme Court, joined attorneys and judges around the state to encourage participation in pro bono work. The Practice with Purpose tour stopped in each judicial district gathering attorneys together to discuss pro bono opportunities and the Emeritus limited license.

From Coeur d’Alene to Idaho Falls, Judge Hodges and several others described their dedication to pro bono work. The presentation highlighted Idaho Rule of Professional Conduct 6.1 and provided information to attorneys about a limited license in Idaho called Emeritus. Currently, there are 13 attorneys in Idaho with an Emeritus limited license. For those attorneys who are nearing retirement but want to continue to practice with purpose, this opportunity is for you!

What is an Emeritus Limited License?

In Idaho, an attorney who is or had been actively licensed to practice law in any state within the past five years can apply for an Emeritus Attorney Limited License.[i] The limited license allows attorneys to practice law for an approved legal service organization as long as they do not ask for or receive compensation for their legal services.[ii] To date, the Idaho Volunteer Lawyers Program (“IVLP”) and Idaho Legal Aid Services, Inc. have both been approved by the Idaho Supreme Court as a Legal Assistance Organization.

How do I apply?

To apply for Emeritus status, an attorney must submit to the Idaho State Bar (“ISB”) Admissions Department a sworn statement verifying that the attorney is or had been actively licensed to practice law within the five years preceding the application, the attorney will perform legal services without asking for or receiving compensation, the attorney will abide by the Idaho Rules of Professional Conduct and all other laws and rules governing lawyers admitted to the ISB, and finally, that the attorney submits to the jurisdiction of the Idaho Supreme Court and the ISB for disciplinary purposes.[iii] In addition to the sworn statement, the attorney must have the Approved Legal Assistance Organization provide written confirmation directly to the ISB Admissions Department that the attorney is associated with the approved organization.[iv]

If the attorney is or had been actively licensed in Idaho, the ISB will verify the information internally. If, however, the attorney is or had been actively licensed in another state, the attorney must also submit to the Admissions Department a Certificate of Good Standing from the state in which the attorney was licensed indicating that the attorney meets the requirements of the Idaho Bar Commission Rules.[v]

What are the licensing requirements for an Emeritus attorney?

Once an attorney has received the Emeritus limited license, the licensing requirements are minimal. The attorney must complete at least three continuing legal education credit hours each year. If the attorney is associated with the Idaho Volunteer Lawyers Program, the CLEs are offered free of charge.  Additionally, the attorney must pay an annual license fee which is currently $150.[vi]

What type of legal services can I provide with an Emeritus limited license?

An Emeritus attorney may appear in any court or before an administrative tribunal, mediator, or arbitrator in Idaho as long the attorney is performing pro bono work on behalf of an Approved Legal Assistance Organization.[vii] Additionally, an attorney can prepare pleadings and other documents to be filed in any court in any matter in which the Emeritus Attorney is involved.[viii]  Finally, the attorney can render legal advice and perform other appropriate legal services on behalf of a client of an approved organization.[ix]

Do I need to have malpractice insurance?

Yes. However, if an attorney is performing pro bono legal service under the Idaho Volunteer Lawyers Program, malpractice insurance is provided. The Idaho Volunteer Lawyers Program carries malpractice insurance for all attorneys when practicing law on behalf of an IVLP client.

For more information about how to apply for an Emeritus limited license or about how to get involved with pro bono work, contact Jennifer Schindele, Idaho Volunteer Lawyers Program Director, at jschindele@isb.idaho.gov.

---

---

[i] Idaho Bar Commission Rule 228(b).

[ii] I.B.C.R. 228(c) and 228(e).

[iii] https://isb.idaho.gov/admissions/emeritus-limited-license/.

[iv] https://isb.idaho.gov/admissions/emeritus-limited-license/.

[v] I.B.C.R. 228(f)(3).

[vi] I.B.C.R. 304.

[vii] I.B.C.R. 228(d)(1)(A).

[viii] I.B.C.R. 228(d)(1)(B).

[ix] I.B.C.R. 228(d)(1)(C).

By John E. Cutler

Within our adversary system, the judicial branch resolves cases based on evidence and arguments presented by opposing parties.[i] As a general matter, courts do not look beyond the parties’ arguments to determine whether there might be other issues or arguments that could have been raised for or against a matter presented for decision.[ii] This dynamic results in appellate decisions that are focused on resolving the dispute between the parties, without a plenary discussion of all potential issues or applications of the various statutes, regulations, common law principles, or public policies potentially at issue.

Given the narrow, dispute-resolution focus fostered by our adversary system, it is not uncommon for an appellate decision to include a phrase or sentence that is inconsequential to the matter at hand but dispositive in another legal context. At other times, the parties’ failure to fully address an issue may cause an appellate court to resolve that issue briefly and without substantial analysis. This article aims to help lawyers in dealing with such precedent predicaments.

These byproducts of the adversary system can present a predicament for lawyers and judges in later cases: precedent. Although the adversary system requires resolution of cases on the record presented, the rule of vertical stare decisis means that published appellate decisions are treated as binding precedent for lower courts. Whether language in an appellate opinion was central to the decision or only an afterthought, zealous advocates are sure to latch onto every word in a published opinion to deploy it in support of arguments on behalf of their clients.[iii] Likewise, lower courts will strive to be faithful to precedent by giving legal effect to language in appellate decisions, whether addressed in a single sentence or a lengthy discussion.

The result of this predicament may later cause the Supreme Court to “reframe the central issue” in the case before it.[iv] As the Court explained in Allen v. Campbell, it was “understandable that the parties and the district court treated [the statute] as bearing on subject matter jurisdiction because this Court essentially said so forty years ago. . . . But a close reading of [our earlier decision] reveals that we misspoke . . . .”[v] It can be hard to know whether an appellate court “misspoke,” but lawyers have at least a few options when they suspect a line from a decision was not intended to govern the issues presented in their case.

Dicta?

The first question to answer when evaluating language from an appellate decision is whether the language is “dictum and not controlling.”[vi] When a “statement” in an appellate decision was “not necessary to decide the issue presented to the appellate court,” the statement is dictum.[vii] Establishing that unfavorable language was dicta should be the first line of defense when presented with a statement from an appellate decision that is adverse to a client’s interest. But lawyers would do well not to stop there. Dictum is like an idea previously planted in the court’s awareness that may become controlling if a court later finds it persuasive.[viii] Thus, the tools for dealing with what appears to be an adverse precedent are also relevant in addressing adverse dicta.

Practice Ideas for When You Suspect the Appellate Court “Misspoke”

In some cases, a statement in an appellate decision cannot easily be written off as dictum. For example, in Matter of Estate of Smith, the Idaho Supreme Court rejected a party’s request for attorney fees under “the Trust and Estate Dispute Resolution Act” (“TEDRA”), Idaho Code Sections 15-8-101 to 15-8-305.[ix] The Court’s brief analysis of the issue follows:

[TEDRA] permits the court to award costs and fees from any party, assets of the estate or trust, or nonprobate asset that is subject of the proceedings. I.C. § 15-8-208(1); Quemada v. Arizmendez, 153 Idaho 609, 617, 288 P.3d 826, 834 (2012). Unlike in Quemada, Joseph did not file his initial petition for probate pursuant to TEDRA, Idaho Code section 15-3-302. As such, this was not a TEDRA proceeding and its costs and fees provision does not have applicability here.[x]

The statement that failure to “file [the] initial petition for probate pursuant to TEDRA” renders the case “not a TEDRA proceeding” appears to be necessary to the Court’s decision denying an award of TEDRA fees and costs.[xi] On the other hand, the brevity of the analysis prompts a question of the intended scope of the Supreme Court’s decision on this issue. Using Matter of Smith as an example, the remainder of this article addresses three areas of inquiry for counsel faced with a short statement in an appellate case that appears controlling at first blush.

1. Evaluate Consistency with Other Law

            The first area of inquiry when confronting stray language in an opinion that appears to control an issue, is to investigate whether there are other lines of conflicting authority in statute, regulations, or cases.

Demonstrating to a court that a brief unfavorable statement from one opinion conflicts with the plain language of a statute or a long line of thoroughly reasoned analysis in another line of cases can go a long way.

Courts do not hide elephants in mouseholes. Although an appellate court’s statement may appear unequivocal and necessary to a decision, if that statement is not accompanied by any reasoning distinguishing it from a prior line of cases or the clear text of the statute, there is a good argument to preclude application of that statement to other cases.

            As an example of this, the TEDRA pleading requirement embraced in the terse holding in Matter of Smith, appears to conflict with the language of Idaho Rule of Civil Procedure 54(e)(4)(A) providing that it is “not necessary for any party in a civil action to assert a claim for attorney fees in any pleading” other than a default judgment.[xii] Similarly, in Straub v. Smith,[xiii] the Idaho Supreme Court held that because a case did “not involve a default judgment . . . to require that attorney fees be pleaded in this case would be contrary to I.R.C.P. 54(e)(4).” Finally, the text of TEDRA contains no express pleading requirement and instead includes text indicating that it “shall not be construed as being limited by any other specific statutory provision providing for the payment of costs, unless such statute specifically provides otherwise.”[xiv] In other words, the rules of civil procedure, existing precedent on attorney fees, and the text of TEDRA itself all suggest that a party is not required to specifically invoke the statute in a pleading as a precursor to the statute’s application. Instead, if a case fits the broad category of cases involving “declaration of rights or legal relations with respect to . . . [t]he resolution of any other case or controversy that arises under the Idaho Code and referenced judicial proceedings under this chapter,” then discretionary attorney fees may be awarded – whether or not TEDRA was invoked in an initial pleading.[xv]

            In sum, when faced with an unfavorable quotation not easily explained as dicta, the first line of defense is to look for other law contradicting the unfavorable statement. If many other legal sources contradict the unfavorable statement, a court will be forced to choose which to follow. And there is a fair chance the court will elect to follow the more established and thoroughly reasoned line of authority over a single line from an opinion that fails to acknowledge, distinguish, or repudiate the other line of authority.

2. Investigate Level of Briefing to the Appellate Court

            The second area of inquiry involves a lesser-known tool available to lawyers. The University of Idaho College of Law maintains a digital archive of not only the briefs but also the record in cases decided by the Idaho Supreme Court. This archive can be accessed at https://digitalcommons.law.uidaho.edu/iscrb/ and it allows a party to investigate the degree to which a particular issue was briefed to the Idaho Supreme Court. When faced with an unfavorable statement in an Idaho Supreme Court decision, reviewing the briefs on the issue can be informative. For example, in Matter of Smith, the TEDRA attorney fee issue was not briefed in any detail. In fact, the only mention of TEDRA was a parenthetical citation to the statute as part of a one-line request for fees in the Respondent’s Brief.[xvi] Although the Appellant opposed an award of attorney fees, the reply brief did not address TEDRA at all.[xvii]

            When the Supreme Court record demonstrates a lack of attention to an issue and the statement in an appellate decision mirrors the parties’ lack of analysis, it is easier to ask a lower court to evaluate the issue as a matter of first impression rather than rely on an adverse stray statement in a published decision. The adversary system is premised on the parties thoroughly addressing key issues in their briefing, so a decision made without briefing is not likely to reflect the conclusion that would have been reached on full briefing and argument.

3. Appeal to Policy Implications

            If adverse language in an appellate decision is consistent with other precedent and was thoroughly addressed by the opposing parties, it probably doesn’t matter whether there are negative policy implications of applying the stated rule to other cases. But policy implications may take on more significance if either the language conflicts with other law or if the parties failed to meaningfully brief the issue in the prior case. This is particularly true when the issue involves a matter of common law, or if the governing statute or regulation is ambiguous.

            Returning to the example of Matter of Smith, as discussed previously, the language requiring TEDRA be included in the pleading does not appear in the text of the statute, it runs counter to other precedent, and the issue was not briefed by the parties. As such, the policy implications of requiring TEDRA be included in a pleading may be relevant to whether the language in Matter of Smith was intended as holding or as a resolution of the issue limited to the facts in Matter of Smith.

Among the aims of TEDRA is to provide “nonjudicial methods for the resolution of estate and trust matters by agreement.”[xviii] But a pleading rule adopted by the Supreme Court creates a perverse incentive for a party to rush to the courthouse to file a declaratory suit that either affirmatively alleges or deliberately omits an invocation of the TEDRA fee regime. Such a pleading requirement would also have the downside of creating ambiguity about what would happen if the opposing party filed a counterclaim making the opposite election (either for or against TEDRA fees) in the counterclaim. Nothing in the text of TEDRA requires the pleading rule, so even modest policy implications of such a rule could be a basis for limiting the pleading rule from Matter of Smith to the facts of that case.

Conclusion

Whether the language from an appellate decision is favorable or unfavorable to your client’s position, it is important to evaluate the degree to which a brief statement in an appellate decision can fairly be considered as controlling precedent that governs in other cases. Establishing whether the language is necessary to a holding is the first step. But even when the language appears necessary to the outcome, there is more work that can be done to evaluate the degree to which the language was intended to control other cases beyond the one at issue. Evaluating whether there is a conflicting line of authority, whether the parties meaningfully briefed the issue, and what the policy implications would be if the rule were broadly adopted, can help lawyers make arguments for or against the broader application of a “holding” that received limited attention in an appellate court decision.

---

Author’s Note: The general issues addressed in this article were the subject of an Appellate Section CLE presented earlier this year by John E. Cutler and Stephen Adams.

---

---

[i] Cf. Heinze v. Bauer, 145 Idaho 232, 238, 178 P.3d 597, 603 (2008) (identifying the adversary system).

[ii] See, e.g., Myers v. Workmen’s Auto Ins. Co., 140 Idaho 495, 508, 95 P.3d 977, 990 (2004) (explaining the court will look to the issues identified in the opening brief); State v. Doe, 144 Idaho 534, 535, 164 P.3d 814, 815 (2007) (“Generally the Court will not consider on appeal any issues that are not raised by the parties.”).

[iii] See Heinze, 145 Idaho at 238, 178 P.3d at 603.

[iv] Allen v. Campbell, 169 Idaho 613, 617, 499 P.3d 1103, 1107 (2021).

[v] Id.

[vi] State v. Hawkins, 155 Idaho 69, 74, 305 P.3d 513, 518 (2013).

[vii] Id.

[viii] E.g., Farm Dev. Corp. v. Hernandez, 93 Idaho 918, 921, 478 P.2d 298, 301 (1970).

[ix] Matter of Est. of Smith, 164 Idaho 457, 482, 432 P.3d 6, 31 (2018).

[x] Id.

[xi] See id.

[xii] I.R.C.P. 54(e)(4)(A), (B).

[xiii] Straub v. Smith, 145 Idaho 65, 70, 175 P.3d 754, 759 (2007).

[xiv] Idaho Code § 15-8-208(2).

[xv] Compare Idaho Code § 15-8-201(1)(b) (providing a broad basis for declaratory relief in trust and estate disputes, as quoted in the text), with Idaho Code § 15-8-208(2) (providing discretionary attorney fees in “all proceedings governed by this chapter”).

[xvi] https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/7194/ (at 12, 40 of the brief after downloading).

[xvii] https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/7195/ (at 35 of the brief after downloading).

[xviii] Vouk v. Chapman, No. 48978, 2022 WL 17479970, at *10 (Idaho Dec. 7, 2022).

By Ben P. McGreevy

“Between the wish and the thing the world lies waiting.”[i]

When arguing an issue, one should take care to ensure that the issue is properly preserved for appellate review.  Think of issue preservation as controlling what horse you may ride into court on appeal.  The Idaho Supreme Court has distinguished between “a party riding on a horse that has been groomed and reshod for the appellate process,” and “a party entering the appellate process riding a similar-looking but entirely new horse.”[ii]  “A groomed horse is expected on appeal, but a different horse is forbidden.”[iii]

This article will cover the rationales for issue preservation, summarize the Idaho Supreme Court’s recent jurisprudence on preserving issues, explore two exceptions to the issue preservation requirement, and offer some tips for practitioners for properly preserving issues for appellate review.

The Rationales for Issue Preservation

Generally, Idaho’s appellate courts will not consider errors not preserved for appeal through a timely objection in the trial court.[iv]  The requirement to preserve issues “applies equally to all parties on appeal.”[v]  The Idaho Supreme Court has made clear, “We will not hold that a trial court erred in making a decision on an issue or a party’s position on an issue that it did not have the opportunity to address.”[vi]  Appellate court review is generally limited to the evidence, theories and arguments that were presented in the trial court.[vii]

Idaho courts have long recognized that it would be unfair for parties to “slumber” on their defenses and first present their objections to the appellate courts.[viii]  The Supreme Court of the Territory of Idaho explained, “Such a practice would destroy the purpose of an appeal and make the supreme court one for deciding questions of law in the first instance.”[ix]  More recently, the Idaho Supreme Court reasoned that “requiring a contemporaneous objection prevents the litigant from sandbagging the court.”[x]  The Court has also held that allowing a party “to change position on appeal would be unfair” to the opposing party, “because it did not have the opportunity to address and respond at the district court level.”[xi]

The Idaho Supreme Court recently explained that issue preservation serves “to induce the timely raising of claims and objections, which gives the trial court the opportunity to consider and resolve them.”[xii]  “Ordinarily, the trial court is in the best position to determine the relevant facts and to adjudicate the dispute.”[xiii]  For example, in the event of a procedural error, the trial court could often correct or avoid the mistake so that it would not affect the ultimate outcome.  It would be inappropriate “to rule that the district court erred by not considering evidence or argument not presented to it.”[xiv]

Different Horses Are Forbidden: Recent Idaho Supreme Court Cases

“The shape of the road is the road.  There is not some other road that wears the shape but only the one.  And every voyage begun upon it will be completed.  Whether horses are found or not.”[xv]

            The Idaho Supreme Court in State v. Garcia-Rodriguez, a 2017 decision, did not consider an argument that the State raised for the first time on appeal.[xvi]  The State had argued in the district court that officers had reasonable grounds to arrest the defendant under state statute.  After losing in the district court, the State shifted its position on appeal to the argument that the arrest was constitutional based on probable cause.  The Court held that the State failed to advance that argument before the district court and the argument was not properly before the Court on appeal.  The Court also declined to adopt a “wrong result-wrong theory” approach to reverse a trial court’s decision based on issues neither raised nor argued before the trial court.  The Court declined to consider the State’s unpreserved argument, despite noting “that the State’s arguments are likely correct” under United States Supreme Court and Idaho Supreme Court precedent.[xvii]

            About a month before Garcia-Rodriguez, the Court held in Ada County Highway District v. Brooke View Inc., that if an argument is properly preserved for appeal, the argument may evolve on appeal.[xviii]  The plaintiff in Brooke View argued before the district court that the valuation of just compensation did not include damage done during construction.  On appeal, the plaintiff supplemented that argument with citations to the relevant statutes.  The Court noted that there was no question that the plaintiff clearly raised the relevant issue before the district court.

While the plaintiff’s specific arguments in support of its position may have evolved since the trial, the issues on appeal and the plaintiff’s position remained the same.

Later, the Court stated that it was “proper and necessary” for the Brooke View plaintiff to evolve its arguments.[xix] The Court noted that during the pendency of an appeal, parties will ruminate on issues and new case law may need to be applied to the specific facts of the case. However, such pragmatic evolutions would not allow parties to raise new substantive issues on appeal or adopt new positions on an issue that the trial court had not had the opportunity to address.

            In 2019, the Court in State v. Gonzalez introduced its horse metaphor to distinguish Brooke View and Garcia-Rodriguez.  As outlined previously, a groomed horse like in Brooke View is expected on appeal, but a different horse like in Garcia-Rodriguez is forbidden. [xx]

The defendant in Gonzalez had argued before the district court that she was entitled to credit for time served from the issuance of her arrest warrant.  On appeal, she argued that she was entitled to credit from the time of her hold on a warrant.  The Court held that the defendant was riding a similar, but new horse.  The change in her position on her motion for credit for time served meant that her argument was not preserved for appeal.[xxi]

In sum, “A party may refine issues that they have raised below with additional legal arguments so long as the substantive issue and the party’s position on that issue remain the same.”[xxii]  However, “A distinction exists between a refined issue, appropriate for review, and a new issue, unfit for consideration.”[xxiii]  That applies even for similar but distinct issues.  For example, in Siercke v. Siercke, the Court held that a party’s absolute privilege argument before the district court did not preserve for appeal the separate but related issue of a qualified privilege.[xxiv]

Apart from changing its position, a party will not preserve an issue for appeal if the party conceded the issue in the trial court.[xxv]  Further, while an appellate court may affirm on the basis of the “right-result, wrong-theory” explanation for appellate review, the party must first properly preserve its alternative argument for appeal.[xxvi]

Most recently, in State v. Miramontes, the Court clarified that parties may preserve an issue without an adverse ruling, if their “position on that issue was presented to the trial court with argument and authority and noticed for hearing.”[xxvii]  Put otherwise, “a party preserves an issue for appeal by properly presenting the issue with argument and authority to the trial court below and noticing it for hearing or a party preserves an issue for appeal if the trial court issues an adverse ruling.”[xxviii]

The Court in Miramontes held that the defendant preserved for appeal an argument that she was unlawfully searched even though that argument was not in her initial motion to suppress. The Court based its holding on her subsequent assertions before the district court in oral argument and a supplemental brief.  While the record was “muddled,” and the Court did not fully fault the district court for not discerning the full extent of the defendant’s arguments, the district court “simply failed to reach [the defendant’s] objections about the constitutionality of the search.”[xxix]  Because the defendant argued that the search was illegal and supported that issue with cogent argument and authority, the issue was preserved for appeal.  The Court held it would unduly penalize the defendant if she lost her appeal because her counsel failed to compel the trial judge to rule on her argument about the search.

Two Exceptions to the Issue Preservation Requirement

The Idaho Supreme Court recently reaffirmed a limited exception for issue preservation, in State v. Jeske.[xxx]  Under this exception, if the issue was argued to or decided by the district court, the issue can form the basis for review by the appellate court.  The Court recognizes a distinction between issues not formally raised before the district court, and issues that never surfaced.  The issue on appeal in Jeske was whether it was proper to present testimony on the defendant’s refusal to submit to a blood draw.  The Court held that the issue was preserved, even though the defendant’s counsel did not explicitly mention the blood draw at one point, because the district court specifically identified the blood draw in its decision.

At the same time, the Court has restricted another exception to issue preservation.   The fundamental error doctrine allows for appellate review of certain un-objected to errors in appeals from criminal cases.  This doctrine stems from the Fourteenth Amendment right to due process and the basic requirement of due process for a fair trial in a fair tribunal.[xxxi]

Review for fundamental error, as outlined by the Court in State v. Perry, involves a three-prong inquiry. The defendant bears the burden of persuading the appellate court that the alleged error: (1) violates one or more of the defendant’s unwaived constitutional rights; (2) plainly exists without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision; and (3) was not harmless.  The fundamental error standard presents a much greater hurdle for criminal defendants than the standard for preserved errors in criminal appeals.  That standard requires that if the defendant shows that a violation occurred, the State has the burden of proving that the error was harmless.[xxxii]

But the hurdle has become even more challenging to vault in the face of the Court’s clarification of fundamental error review in 2019.  In State v. Miller, the Court held that, for the second prong of Perry, “the record must contain evidence of the error and the record must also contain evidence as to whether or not trial counsel made a tactical decision in failing to object.”[xxxiii]  Without evidence on whether counsel’s decision was strategic, the claim would be factual in nature and thus more appropriately addressed via a petition for post-conviction relief.

The Miller Court also clarified that the third prong of Perry “requires that the defendant demonstrate that the clear error in the record . . . actually affected the outcome of the trial proceedings.”[xxxiv]  The Court disapproved of language from earlier cases that required the defendant to only show a reasonable possibility that the error affected the outcome.  Instead, whether the error affected the trial proceedings must be clear from the appellate record.

After Miller, there are only two published decisions to date where Idaho’s appellate courts have found fundamental error.   One was a case where the Court applied the earlier, less onerous Perry standard, and the second was a case where the error by its nature was automatically deemed to have affected the outcome.[xxxv]  The heightened difficulty in proving fundamental error arguments further underscores the importance of issue preservation, especially in criminal appeals.

Tips for Practitioners

“A form without a history has no power to perpetuate itself.  What has no past can have no future.”[xxxvi]

Here are a few tips to keep in mind when it comes to preserving issues for appeal.  First, in the trial court, be sure to object.  As the Idaho Supreme Court recently put it in Miramontes, “That a party must object and thereby create a record of the party’s adverse contention below is axiomatic.  It is foundational for appellate review.”[xxxvii]  The Jeske exception may apply only in limited circumstances, and fundamental error is quite challenging even where it is available.  So, object!  If applicable, ensure that you notice the issue for hearing.[xxxviii]  On a special note, to preserve jury instruction issues in criminal cases, one must both submit a proposed instruction and object to the district court’s decision on the instruction during the jury instruction conference.[xxxix]

Second, make sure your position is clearly stated.  Based on the Court’s jurisprudence, how you set forth your position at trial will determine to a great extent what you may argue on appeal.  Moreover, it is best to stake out your position at the earliest opportunity, as raising an issue later may result in a “muddled” record like in Miramontes.[xl]  Still, you may refine or evolve your preserved arguments on appeal.[xli]

Third, provide argument and authority in support of your position.  The Court “has placed a premium on counsel presenting the facts and law that it chooses to support its position in the trial court.”[xlii]  The Court in Miramontes was careful to specify that its ruling “should not be seen as carte blanche to make half-baked or cursory objections to preserve an issue for appeal.”[xliii] Further, where parties object and provide a well-stated basis for their objections, trial courts are ordinarily in the best position to determine the relevant facts and resolve the disputes.

Finally, be sure to obtain an adverse ruling on your issue if possible.  The Miramontes Court emphasized that “obtaining an adverse ruling will always provide a better framework for appellate analysis.”[xliv]  The best practice while objecting is to aim to get an adverse ruling to properly preserve the issue.  The Miramontes Court noted “that attorneys who properly present their issue to the district court as described above but fail to secure such a ruling may undermine or impair their clients’ position on appeal.”[xlv]  If you follow the other tips, by objecting, clearly stating your position, and providing supporting argument and authority, it is more likely the trial court will reach your objection.

Conclusion

Issue preservation has been an important topic in the Idaho Supreme Court’s recent jurisprudence. Accordingly, practitioners should keep in mind these tips for properly preserving issues for appellate review.  That way, when completing your voyage on the appellate road, you will not have to worry about riding a different, forbidden horse.

---

---

[i] Cormac McCarthy, All The Pretty Horses 238 (Alfred A. Knopf 1992).

[ii] State v. Gonzalez, 165 Idaho 95, 99, 439 P.3d 1267, 1271 (2019).

[iii] Id.

[iv] See State v. Perry, 150 Idaho 209, 224, 245 P.3d 961, 976 (2010).

[v] State v. Garcia-Rodriguez, 162 Idaho 271, 276, 396 P.3d 700, 705 (2017).

[vi] Gonzalez, 165 Idaho at 99, 439 P.3d at 1271.

[vii] Garcia-Rodriguez, 162 Idaho at 275, 396 P.3d at 704.

[viii] State v. Sterling, 1 Idaho 128, 131 (1867) (quoted in Garcia-Rodriguez, 162 Idaho at 276, 396 P.3d at 705).

[ix] Id.

[x] Perry, 150 Idaho at 224, 245 P.3d at 976.

[xi] Gonzalez, 165 Idaho at 100, 439 P.3d at 1272.

[xii] Perry, 150 Idaho at 224, 245 P.3d at 976 (quoting Puckett v. U.S., 556 U.S. 129, 134 (2009)) (alteration and internal quotation marks omitted).

[xiii] Id., 245 P.3d at 976.

[xiv] Gonzalez, 165 Idaho at 100, 439 P.3d at 1272.

[xv] Cormac McCarthy, The Crossing 230 (Alfred A. Knopf 1994).

[xvi] Garcia-Rodriguez, 162 Idaho at 274-76, 396 P.3d at 703-05.

[xvii] See id. at 275, 396 P.3d at 704.

[xviii] 162 Idaho 138, 142 n.2, 395 P.3d 357, 361 n.2 (2017).

[xix] Gonzalez, 165 Idaho at 98, 439 P.3d at 1270.  A party may even preserve an argument where they had an incorrect citation reference, so long as they cited the relevant language of the statute and the principles behind it before the district court.  See State v. Towner, 169 Idaho 773, 778, 503 P.3d 989, 994 (2022).

[xx] Gonzalez, 165 Idaho at 99, 439 P.3d at 1271.

[xxi] Id. at 99-100, 439 P.3d at 1271-72.

[xxii] Siercke v. Siercke, 167 Idaho 709, 715, 476 P.3d 376, 382 (2020).

[xxiii] Id. at 716, 476 P.3d at 383.

[xxiv] Id., 476 P.3d at 383.

[xxv] State v. Cohagan, 162 Idaho 717, 721, 404 P.3d 659, 663 (2017).

[xxvi] State v. Hoskins, 165 Idaho 217, 443 P.3d 231 (2019).  The “right result-wrong theory” rule or explanation for appellate review provides that, where an order of a trial court is correct, but based upon an erroneous theory, the order will be affirmed upon the correct theory.  Id. at 222, 443 P.3d at 236.   To affirm on the basis of the right result-wrong theory explanation, the correct theory “must have been properly preserved.” See id. at 226, 443 P.3d at 240.

[xxvii] — Idaho —, 517 P.3d 849, 853 (Idaho 2022); accord State v. Vivian, 171 Idaho 79, 518 P.3d 378 (2022).

[xxviii] Miramontes, 517 P.3d at 853-54 (emphasis in original).

[xxix] Id., 517 P.3d at 855.

[xxx] 164 Idaho 862, 868, 436 P.3d 683, 689 (2019).

[xxxi] See Perry, 150 Idaho at 224, 245 P.3d at 976.

[xxxii] See id. at 227-28, 245 P.3d at 979-80.

[xxxiii] 165 Idaho 115, 119, 443 P.3d 129, 133 (2019).

[xxxiv] Id. at 119-20, 443 P.3d at 133-34.

[xxxv] See State v. Medina, 165 Idaho 501, 447 P.3d 949 (2019) (holding under the Perry standard that an erroneous jury instruction constituted fundamental error); State v. Haggard, 166 Idaho 858, 465 P.3d 1097 (2020) (holding under Perry that the defendant’s ineffective waiver of his right to a jury trial was fundamental error, where possible tactical considerations of the attorney as discussed in Miller did not matter because the waiver decision was personal to the defendant, and the deficient waiver automatically satisfied the third prong as a structural defect).

[xxxvi] Cormac McCarthy, Cities of the Plain 281 (Alfred A. Knopf 1998).

[xxxvii] Miramontes, 517 P.3d at 854.

[xxxviii] See id., 517 P.3d at 853-54.

[xxxix] See I.C.R. 30(b)(4); State v. Hall, 161 Idaho 413, 422, 387 P.3d 81, 90 (2016).  There does not appear to be an equivalent requirement for jury instruction objections in civil cases.  See I.R.C.P. 51.

[xl] See Miramontes, 517 P.3d at 854-55.

[xli] E.g., Gonzalez, 165 Idaho at 98, 439 P.3d at 1270.

[xlii] Hoskins, 165 Idaho at 226, 443 P.3d at 240.

[xliii] Miramontes, 517 P.3d at 854.

[xliv] Id., 517 P.3d at 854.

[xlv] Id., 517 P.3d at 854.

By Leslie M.G. Hayes and Bryan A. Nickels

“I Never Been Defeated and I Won’t Stop Now (Woo)”[i] – Why Would I Mediate on Appeal?

There is always risk in litigation.  However, mediation is a tool to help your client reduce some of that risk.  This principle remains the same when your client’s case is on appeal.  While there might be additional considerations and a different risk/reward analysis, the opportunity for the parties to resolve their dispute at the appellate level should be seriously considered, as even a successful trial court result does not guarantee success at the appellate level.[ii]

Two types of cases where appellate mediation might offer the best benefit are procedurally complex cases[iii] or interlocutory appeals of one issue (or one party, in multi-party litigation).  But even smaller cases – especially those facing several months of appellate procedure and a potential remand – may significantly benefit from a resolution at the appellate stage.

“Mediation at the appellate level provides just as many opportunities for resolution as mediating at the district court level.  Indeed, many of the reasons to mediate at the trial court level still exist on appeal: time expense, risk of loss, preservation of a relationship, a desire to make or avoid legal precedent, etc.”[iv]  Therefore, evaluating the potential for appellate mediation could benefit most cases.

“So I’ll Go If You Want Me To”[v] – Discussing Mediation on Appeal with Your Client

Of course, the core impediment to mediation at the appellate level is that, by the time a case has made its way to an appellate court, somebody has already won something.  Even if on an interlocutory appeal regarding, for example, a discovery issue, some party has already prevailed on an issue significant enough to be addressed by an appellate court.

On the flip side, from the unsuccessful litigant’s perspective, the decision to undertake appellate mediation is often an easy decision; however, if your client is already the prevailing party, it may be more difficult to convince your client to mediate on appeal.

In convincing clients to undertake appellate mediation, some initial hurdles that will need to be explored or addressed are: (1) whether mediation was already unsuccessful at the trial court level (that is, what has changed to think that the same result will not occur?), (2) the “sunk cost fallacy” (that is, a client resistant to expending more on mediation costs while on appeal, or otherwise chasing the already-spent dollar), and (3) the “non-automatic” nature of mediation on appeal (as opposed to the trial court level where mediation is frequently ordered as a matter of course).

The first issue a client might raise – prior (unsuccessful) attempts at mediation – can be addressed by emphasizing that even unsuccessful mediations bear fruit.  While most mediations are hopefully successful on the first sit-down, other mediations are unsuccessful on the first try and instead require multiple sessions and several days (or weeks) of in-conference or even informal communications.[vi]

With that, the unsuccessful prior mediation can be appropriately framed as just the first session, and, in fact, whether favorable or otherwise, the result giving rise to the appeal may have resolved a sticking point in the initial mediation.  Ultimately, however, because mediation is free in the Ninth Circuit – and there are free avenues that can be explored at the state court level – there is really no harm in giving mediation a second try, should the opportunity present itself.[vii]

To the second issue – the “sunk cost fallacy” – it should be emphasized that considerations in mediation cannot be wholly backwards looking but must consider the present scenario and future costs/risks (including, as always, the intangible benefits, such as not spending your free time with your lawyer[viii]).  As explained by mediator Chuck Lempesis: “[p]ointing out the fact that they are now destined to spend even more provides a needed reality check that leads us back to the original resolution.”[ix]

On the final issue, a prevailing client – not bound to mandatory mediation – may not appreciate the inherent risks of appeal.  Such risks might include: (1) a trial court summary judgment decision that might fall apart in the face of existing (or even new!) caselaw; (2) trial court errors in the admission or exclusion of evidence or witnesses; and (3) defects in jury instructions and/or verdict.  Any of these risks pose a new potential risk of an appellate court ordering a “do-over,” resulting in the case being remanded, further resulting in several more months if not years of ongoing litigation.[x]

Thus, any client discussion regarding the potential for appellate mediation should address these concerns.

“Far From Home, Stay Patient”[xi] – General Mediation Principles and How Do they Apply on Appeal?

In general, the timing of mediation on appeal can vary as much as it does in litigation.  However, getting into mediation prior to briefing can provide additional benefits to your client.  In the Ninth Circuit, the mediators can help set a briefing schedule that permits the parties to explore resolution, but without losing their place “in line.”

That is, mediators can allow parties to push out briefing to allow time for mediation, while still keeping the assigned panel and hearing date (even when you are unaware of those details), so that the timing of your appeal and decision will be the same with or without participation in the mediation program.  This means that your client loses almost nothing (other than the investment of time in the mediation itself) by participating in mediation.

However, there may be other times when the timing dictates mediation will be most successful after briefing is complete or sometimes even after oral argument is complete.[xii]  For example, cases that present questions of first impression or complex matters of fact and law might be well-served by completing the briefing process prior to exploring mediation.

Likewise, it may be that the parties might find the best result by going through the argument process to best understand what forest the judges are seeing through the lawyers’ trees.  In those circumstances, initiating an appellate mediation at a later juncture might provide the parties with desperately needed information and impressions regarding the appeal, so that the full picture of the potential outcome[xiii] of the appeal can be considered in negotiations.

“We Found A Permanent Fix for a Lost Cause”[xiv] – So How Does This Come Up?

Appellate mediation can occur one of two ways.  Of course, parties are free at any time in any litigation to sit down and engage in mediation as the litigation progresses on its natural course.  However, if the parties want a more formal process – one that, for example, critically suspends the briefing schedule or delays the issuance of a decision that might change the landscape of the case and appeal – how that process is initiated depends on the court they find themselves in.

Should the parties be before the Idaho Supreme Court, for example, a request for an appellate settlement conference is made via Idaho Appellate Rule 49.  This rule – the product of efforts beginning in the 1990s to introduce Alternative Dispute Resolution (“ADR”) to the appellate process by Justice Byron Johnson – allows the process to be initiated by written agreement and requested by the parties to the Court, which suspends the appeal process by 49 days.[xv]  The process is, by rule, an informal one – settlement statements are submitted, but destroyed after negotiations; no recording is permitted (written notes only); and, ideally, the settlement discussions are to be informally conducted “around a table.”

In contrast, the Ninth Circuit is a more formal process.  By rule, appellants must (and appellees may) submit a Mediation Questionnaire to the court and the failure to do so by an appellant might even result in the dismissal of the appeal.  After the appellants submit a Mediation Questionnaire, if appropriate,[xvi] an initial assessment conference takes place so that both the parties and the mediator can decide whether the matter is appropriate to proceed to mediation.

As the Ninth Circuit has explained, “[t]here are no hard and fast rules as to what makes a good candidate for appellate mediation.  The opportunities are not always apparent at the outset and the court encourages the parties to consider mediation in most cases.”[xvii]  Either way, the mediator can assist the parties with procedural and case management issues to encourage at least the exploration of the potential for mediation.

Even if there is no mediation triggered at the outset of the appeal, parties may even be “invited” during argument to undertake mediation by the hearing panel.  For example, one of the authors (Ms. Hayes) had mediation and settlement raised at oral argument, where the panel posed the issue to both counsel mid-argument.[xviii]

Judge A: Is there any chance of settling this case?  Does Idaho really really want to do this?

Counsel for Appellee: That’s a question . . .

Judge B: You might be asking the wrong guy.

Judge A: I’m asking if there is any sense in trying to mediate this case.
. . .
Judge C: Well, I can ask the State when she gets back up.  Because I would like to know what the State’s position is in trying to get a resolution in this matter.  And frankly, you both might be better off if you settled rather than wait for us to answer these questions.  Just a hint.
. . .
Counsel for Appellant: To answer the question about resolution . . .

[discussion of who has authority to settle, and statutory permissibility for potential avenue for resolution]

Judge B: Who needs a mediator when you’ve got Ninth Circuit Judges.

Judge A: We have wonderful mediators if you’re willing to talk to them.

Counsel for Appellant: To answer your question, yes, I will talk to [my clients] about your request for mediation.

Judge B: Thank you.  And I know we’ve put you through your paces today, and you’ve answered the question about mediation, but you are out of time, could you take a few minutes, well, not a few minutes, but could you wrap up.

So, even when the parties – and even the mediator – have determined that a case doesn’t feel right for mediation, there is some likelihood that the hearing panel will expect the parties to be able to re-address the potential for mediation.  Thus, the savvy practitioner will be ready for this line of questioning, irrespective of past determinations of the ability of a case to be mediated.

Finally, preparation for mediation at the appellate level is largely the same as mediation at the trial level – know your client’s goals, know the law and facts at issue in the case, and be practical with your approach – but at the appellate court level, the parties should also be prepared to address “new” issues in the case (for example, the parties should be prepared to address the governing standard of review and how that might impact the viability of their argument).

“Good Luck, We’re All Counting on You”[xix]

The robust and successful use of ADR should include consideration and use of appellate mediation as an additional tool in the practitioner’s toolbox.  While appellate mediation may not be suited for all cases – and, indeed, may require some additional consideration based upon the wants and needs of your client at the appellate stage of litigation – the opportunity to resolve a disputed matter provides an opportunity for both parties and the judicial system to sidestep long, costly litigation at a critical point in the parties’ dispute.  Even when a party has prevailed below, there is little harm in making one more sit-down with the opposing party and a mediator to see what options might be available, even if one party is heavily favored.

---

Author’s Note: This article is adapted from a presentation entitled “Appellate Mediation,” presented on July 22, 2022 and the Idaho State Bar Annual Meeting by the authors. This presentation is available as an online, on-demand program through the Idaho State Bar’s website, and includes a short presentation and Q&A by two of the Ninth Circuit’s mediators.

---

---

[i] DJ Khaled, All I Do is Win on Victory (eOne Music 2010).

[ii] Even the most overwhelming victory at the trial court level does not guarantee success at the appellate level, and even experienced litigators should be cautioned against overconfidence.  See, e.g., General John Sedgwick, Battle of Spotslvania Court House, “Why are you dodging like this?  They couldn’t hit an elephant at this distance.” (subsequently shot and killed).

[iii] Leslie anecdotally notes: One specific example is a case we were able to settle at the Attorney General’s Office through the Ninth Circuit mediation program.  There, we had a pro se litigant at a correctional facility who brought a failure to protect claim under the Eighth Amendment.  We filed for summary judgment on qualified immunity grounds and the district court denied our motion and we appealed.  The parties agreed to mediate.  Mediation was successful, free, and took less than half a day.  The State was able to avoid the potential for remand and a trial and the pro se litigant was able to obtain resolution of his claims and, with the mediator, he was better able to understand the risks posed by continued litigation.

[iv] https://www.ca9.uscourts.gov/mediation/the-benefits-of-mediating-on-appeal/ (last accessed Nov. 16, 2022).

[v] Charly Bliss, Under You on Young Enough (Barsuk 2019).

[vi] A renewed mediation attempt following an unsuccessful one should be enthusiastically and positively viewed as a real-world application of the Japanese proverb, “fall down seven times, stand up eight.”

[vii] In fact, at the federal court level in the Ninth Circuit, if the appellant requests mediation, counsel for the appellee is required to participate in the preliminary phone assessment conference with the mediator.  https://www.ca9.uscourts.gov/mediation/frequently-asked-questions/ (FAQ 6) (last accessed Nov. 16, 2022).

[viii] “It didn’t hit me till after/Guilt piling up to the rafters/And I drunkenly leaned on the urinal/Thinking how I’d missed too many birthdays/And a couple of funerals.”  PUP, Edmonton, on This Place Sucks A** (Little Dipper/Rise 2020), or, alternatively “You and your words, obsessed with your legacy/Your sentences border on senseless/And you are paranoid in every paragraph/How they perceive you.” Lin-ManuEl Miranda, Burn on Hamilton (Atlantic Records 2015).

[ix] Charles Lempesis, The Art of Making Peace (2013), 58.

[x] Including the potential for mediation after the reboot, but potentially from a weaker position then where you may be on appeal.

[xi] Hot Mulligan, We’re Gonna Make It To Kilby!, on You’ll Be Fine (No Sleep Records, 2020).

[xii] We caution that it is extremely difficult to stay the disposition of your appeal after oral argument and if you intend to pursue mediation at that point, you will need to file your motion to stay as soon as possible following oral argument.

[xiii] Of course, the panel you draw may also influence your decision to mediate.

[xiv] Microwave, Trash Stains on Stovall (2014).

[xv] The wording of Idaho Appellate Rule 49, however, directs the assignment and usage of a “conference judge” (contrasted, as below, with the Ninth Circuit’s use of in-house court mediators).  In its initial push, the Idaho Supreme Court appellate settlement conference efforts yielded good results–of the 438 cases that went through the process between 1990 and 2008, 59% were resolved.  Maureen Laflin, Dreamers and Visionaries: The History of ADR in Idaho, 46 Idaho L. Rev. 177, 198 (2009).  However, in preparation of this article, it was anecdotally shared by Idaho Supreme Court personnel that in the last three years, only one Rule 49 appellate settlement conference has been undertaken.  Various strategies might be employed to reinvigorate the use of Rule 49, such as having the Court proactively screen and invite as may be appropriate, provide more flexibility in staying briefing/arguments, utilizing mediators rather than a conference judge, and using remote conferencing.  Other suggestions made to the authors include allowing appellants to initiate the process via request in the notice of appeal, and allowing similar stay allowances if the parties notify the Court that private mediation is being undertaken.

[xvi] By way of example, if the mediation questionnaire simply states that there is no opportunity for resolution, there is unlikely to be an initial assessment call; however, such an approach is not within the spirit of the program.  The authors have been on that call for multiple cases and the call has value even if the case does not ultimately proceed to the mediation program.

[xvii] https://www.ca9.uscourts.gov/mediation/the-benefits-of-mediating-on-appeal/ (last accessed Nov. 16, 2022).

[xviii] For those interested, the entirety of the argument can be found here: https://www.youtube.com/watch?v=UmYeIaQlYlY (last accessed Nov. 17, 2022).  The typed version above is not intended to be a transcript of the proceedings, but to give a flavor of the argument.

[xix] Airplane! (Paramount Pictures 1980).

By Stephen L. Adams and W. Christopher Pooser

Few options for interlocutory review of trial court decisions exist in Idaho, and the options that are available are difficult to obtain. As a result, litigators are often stuck with non-final rulings from the trial court until an appeal as a matter of right is available. Of course, there are many good reasons for that. Our appellate courts should be concerned about the efficient administration of our legal system.

But there are also times when a case requires immediate appellate review. While Idaho trial judges do their best to apply the law correctly, the reality is that they make mistakes. Reversal rates in the Idaho Supreme Court confirm as much. When a ruling is obviously or probably wrong, parties are mostly left without recourse to correct the error until final judgment, sometimes needlessly.

This article discusses whether there is a better system of interlocutory review for Idaho to aid the resolution of significant, disputed interlocutory rulings.

Idaho’s Appellate System

Let us first set out Idaho’s appellate system. In our state, the Idaho Supreme Court has original and appellate jurisdiction.[i] The Supreme Court’s original jurisdiction extends to the issuance of “writs of mandamus, certiorari, prohibition, habeas corpus, and all writs necessary or proper to the exercise of its appellate jurisdiction.”[ii] As for appellate jurisdiction, the Supreme Court reviews the final decisions of district courts and all cases removed to it by law.[iii]

It follows that no litigant has direct access to the Idaho Court of Appeals, which is not a true intermediate appellate court. Instead, the Court of Appeals is statutorily created and “subordinate to the Idaho Supreme Court.”[iv] Because there is no right of appeal to the Court of Appeals,[v] its jurisdiction is limited to cases assigned to it by the Supreme Court.[vi]

Reversal rates before the Idaho Supreme Court are also worth mentioning. In 2021 and 2022, an informal survey shows a total reversal rate of approximately 30%.[vii] Compare that to the Ninth Circuit Court of Appeals in fiscal year 2021, where the court’s overall reversal rate was 10.2%.[viii] The national average for reversals in federal appeals was 8.7%.[ix]

Correcting Interlocutory Errors in Idaho

If an Idaho trial court makes an error, a litigant has very limited recourse to fix the error before the entry of a final judgment. One option is I.R.C.P. 54(b), but for this article, we would like to consider the review of the many non-final rulings that do not resolve claims in multi-claim or multi-party suits.[x] There are two options for interlocutory review that originate from the Idaho Supreme Court’s appellate and original jurisdiction, respectively.

The first option is a permissive appeal under I.A.R. 12. The standard for obtaining a permissive appeal is exceedingly difficult to achieve.[xi] There must be “a controlling question of law as to which there is substantial grounds for difference of opinion and in which an immediate appeal from the order or decree may materially advance the orderly resolution of the litigation.”[xii]

This standard tracks the federal standard for interlocutory review.[xiii] But “substantial grounds for difference of opinion” is nearly impossible to show in a state like Idaho. Trial court decisions are rarely available and the direct right of appeal to the Idaho Supreme Court means that conflicts simply do not arise. Perhaps because the standard is so difficult, the Idaho Supreme Court has instructed that the intent of I.A.R. 12 is to allow appeal of errors of law that relate to matters of public concern or are of first impression.[xiv] No other errors can be addressed on permissive appeal.

As a result, the Supreme Court accepts very few permissive appeals. By our count, a total of five were granted in 2021 and 2022.[xv]

Not surprisingly, most practitioners do not see permissive appeal as a practical option to correct an interlocutory error made by the trial court.

The second option to correct an interlocutory error is also extremely limited. Practitioners have resorted to direct actions against trial courts utilizing the Supreme Court’s original authority to issue writs of mandamus or prohibition to force the trial court to take or refrain from a specific act.

For example, in Hepworth Holzer, LLP v. Fourth Judicial District of State, a 2021 case, the trial court disqualified plaintiff’s counsel.[xvi] The plaintiff’s firm filed a direct cause of action against the trial court seeking a writ of mandamus reinstating them as counsel and the writ was granted.[xvii]

The Supreme Court’s decision is worth reading. Initially the Court questioned whether writ review was appropriate because the trial court’s decision to grant or deny a motion to disqualify counsel was discretionary. Traditionally “writs of mandate (and their counterpart, prohibition) will not issue to compel the performance of a purely discretionary function.”[xviii]

Nevertheless, the Court decided that a writ of mandate is an appropriate method to review a trial court’s decision to disqualify counsel because an appeal would not provide an adequate remedy.[xix] Doing so, the Court adopted the framework used by the Ninth Circuit, which considers whether: (1) the petitioner has no other means, such as a direct appeal, of attaining the desired relief; (2) the petitioner will be damaged in a way not correctable on appeal; (3) the trial court’s order is clearly erroneous as a matter of law; (4) the order is an oft-repeated error or manifests a persistent disregard of the federal rules; and (5) the order raises new and important problems or issues of law of first impression.[xx]

While satisfaction of all the factors is not required, the decision whether to issue a writ is highly discretionary.[xxi] No party can reasonably expect this method of “appeal” to apply to many situations. Of the nine original proceedings heard by the Idaho Supreme Court since 2019, at least as indicated by published decisions, only Hepworth Holzer and one other[xxii] involved a challenge to a trial court’s interlocutory ruling.[xxiii] And as it stands now, the only discretionary trial court decision that is likely “appealable” through the writ process is a decision to disqualify counsel. It remains to be seen whether other legal decisions can utilize this process.

Interlocutory Review in Neighboring States

Two neighboring states, Washington and California, offer a more defined and utilized interlocutory review process. Washington’s system is tied to its appellate courts’ appellate jurisdiction, while California’s system is tied to its appellate courts’ original jurisdiction. Both begin with their courts of appeal.

Washington allows for the “discretionary review” of interlocutory orders by permission of the appellate courts.[xxiv] Petitions for discretionary review are heard by appellate commissioners (staff attorneys) with the Washington Court of Appeals.[xxv] They decide whether interlocutory review is warranted in mostly unpublished orders that are rarely reviewed on the merits.[xxvi]

Discretionary review “is available in those rare instances where the alleged error is reasonably certain and its impact on the trial manifest.”[xxvii] Discretionary review may be accepted in three limited circumstances, which are established by rule.[xxviii]

The first consideration requires an “obvious error” that is so severe that there is no point to continuing the litigation.[xxix] Examples include where a trial court failed to follow controlling precedent that would have resulted in judgment as a matter of law[xxx] and other situations where a useless lawsuit would be prevented.[xxxi]

The second consideration applies to a “probable error” having immediate effect outside the court proceedings.[xxxii] Examples include trial court orders pertaining to injunctions[xxxiii] and a ruling that removed an initiative from an upcoming election.[xxxiv]

The third consideration is rarely invoked and applies “where circumstances call for the ‘exercise of revisory’ authority, even absent ‘senseless or inappropriate’ conduct by the trial judge.”[xxxv]

California also has a stringent (yet broader) procedural process allowing for interlocutory review of trial court decisions, deriving from its appellate courts’ original jurisdiction. California’s system resides with the California Court of Appeal, which has original jurisdiction over statutory and common law writ petitions.[xxxvi]

As to common law writs of mandamus,[xxxvii] as in Idaho, writ relief in California is extraordinary and highly discretionary. More than 90 percent of writs are denied by the California Court of Appeal, usually without explanation.[xxxviii] Thus, while common law writs of mandamus are rarely granted, they are granted more readily than in Idaho.

In deciding whether to hear the merits of a writ petition, the California Court of Appeal considers criteria that is not dissimilar to the factors recently adopted in Hepworth Holzer.[xxxix] It is critical that the issue cannot wait to be resolved through the normal appellate process, such that an appeal will not provide an adequate remedy under the circumstances.[xl] California appellate courts are also inclined to grant writs to prevent “irreparable injury” (as opposed to “irreparable inconvenience”).[xli]

Mandamus is generally not available to control the exercise of a trial court’s discretion.[xlii] But mandate may lie where that discretion can be exercised in only one way or is abused. For example, the California Court of Appeal has found mandate proper to remedy an abuse of discretion consisting of a misinterpretation of a statute or case law or an improper ruling under the particular facts.[xliii]

Is There a Case for More Flexible Interlocutory Review in Idaho?

Is there an opportunity for a better interlocutory review process within the Idaho appellate system? We believe so. But we are not advocating for unfettered review of non-final trial court orders. There are many good reasons why the review of interlocutory rulings is disfavored and must be tightly controlled through stringent standards. Without such limitations, piecemeal appeals could lead to judicial gridlock. The ability of trial courts to manage litigation would be disrupted and normal appeals would be pushed to the sidelines. That would be true even when the alleged error could be cured prior to trial, would have little effect on the outcome of the case, or be better considered on appeal.

But it is also true that, in Idaho, the most realistic method a party has to correct a significant error prior to entry of an appealable order or judgment is a motion for reconsideration or other similar motions.[xliv] Sure, “[t]he purpose of a motion for reconsideration is to reexamine the correctness of an order.”[xlv] But these rulings are presided over by the same judge who made the initial error. Experience and the Idaho Supreme Court’s high reversal rate teach that our trial courts rarely reconsider and correct erroneous rulings. Frankly, at times, trial judges seem more interested in forcing settlement. Obtaining a corrected ruling can be difficult, if not impossible.

That leaves the Idaho Supreme Court’s appellate and original jurisdiction. Washington and California’s mechanisms for interlocutory review offer lessons for both. While Idaho’s focus is on issues of first impression and public importance (in permissive appeals) and whether issues are capable of review by a direct appeal (in writ review), what about other significant issues that simply cannot wait for an appeal taken after entry of judgment? What about trial court rulings that are plainly incorrect and would render further proceedings useless, deprive a party of presenting a significant portion of their case, or otherwise substantially prejudice a party’s case?

We do not have the space here to advocate or decide how the Idaho Supreme Court should exercise its appellate or original authority to provide more effective interlocutory review. Both are suited for occasional interlocutory review. But perhaps a solution is recognizing that the standard for permissive appeals under I.A.R. 12 is too stringent and unforgiving given Idaho’s unique appellate system.

Perhaps the standards for interlocutory relief can be defined to focus on the effect of the trial court’s error rather than the novelty of the error. Perhaps the circumstances that justify interlocutory review should include error that would needlessly waste the parties and the court’s resources or threatens a litigant with immediate and irreparable injury. And perhaps there is a role for the Idaho Court of Appeals to be the gatekeeper of an interlocutory review process.

Idaho’s interlocutory appeals process cuts out cases that would benefit from immediate appellate review. Expanding interlocutory appeals, even slightly, could help short-circuit meritless cases. Errors that result in overwhelming burdens for which there is no adequate remedy would be cured. Litigants with meritorious challenges to significant and impactful errors, whether legal or discretionary rulings, would not be discouraged from seeking interlocutory review. Further, a more robust and defined process of interlocutory review would promote, over the long term, better decisions from trial judges and better appellate practice from Idaho practitioners.

---

---

[i] Idaho Const., art. V, § 9; Idaho Code § 1-202.

[ii] IdahoCode § 1-203.

[iii] Idaho Code § 1-204.

[iv] Idaho Code § 1-2402.

[v] Idaho Code § 1-2410.

[vi] Idaho Code § 1-2406. The Supreme Court may not assign cases of original jurisdiction, capital appeals, or appeals from the industrial commission or the public utilities commission.

[vii] The authors found approximately 51% of civil and criminal appeals were affirmed, approximately 19% were affirmed or reversed in part, and approximately 30% were reversed. In civil appeals, the reversal rate was approximately 26% percent. In criminal appeals, the reversal rate was approximately 35%.   

[viii] United States Courts for the Ninth Circuit, 2021 Annual Report at 48, https://cdn.ca9.uscourts.gov/datastore/judicial-council/publications/AnnualReport2021.pdf.

[ix] Id.

[x] Interlocutory review under Rule 54(b) is available in limited situations: when the trial court resolves at least one claim or the rights and liabilities of at least one party and finds no just reason for delay.

[xi] See generally Stephen Adams, The How’s and When’s of Permissive Appeals, Idaho State Bar Journal (The Advocate) at 26-30 (May 2018) for a discussion of case law applying the standards.

[xii] I.A.R. 12(a).

[xiii] See 28 U.S.C. § 1292(b).

[xiv] See Budell v. Todd, 105 Idaho 2, 4, 665 P.2d 701, 703 (1983); Verska v. Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 892, 265 P.3d 502, 505 (2011); Rountree v. Boise Baseball, LLC, 154 Idaho 167, 170, 296 P.3d 373, 376 (2013); Aardema v. U.S. Dairy Sys., Inc., 147 Idaho 785, 789, 215 P.3d 505, 509 (2009).

[xv] It appears three permissive appeals were granted in 2022. See State v. Diaz, 170 Idaho 79, 507 P.3d 1109, 1112 (2022); Weaver v. Weaver, 170 Idaho 72, 507 P.3d 1102, 1103 (2022); Swanson v. Swanson, 169 Idaho 766, 768, 503 P.3d 982, 984 (2022). In 2021, there were similarly few permissive appeals. See Matter of Doe, 169 Idaho 328, 334, 495 P.3d 1016, 1022 (2021); Tucker v. State, 168 Idaho 570, 573, 484 P.3d 851, 854 (2021).

[xvi] Hepworth Holzer, LLP v. Fourth Jud. Dist. of State, 169 Idaho 387, 391–92, 496 P.3d 873, 877–78 (2021).

[xvii] Id. at 395-99, 496 P.3d at 881-85.

[xviii] Bower v. Morden, 126 Idaho 215, 218, 880 P.2d 245, 248 (1994) (citation omitted).

[xix] Hepworth Holzer, LLP, 169 Idaho at 396, 496 P.3d at 882.

[xx] Id. at 396-99, 496 P.3d at 882-85 (citing Cole v. U.S. Dist. Court for the Dist. of Idaho, 366 F.3d 813, 816–17 (9th Cir. 2004)).

[xxi] Id. at 396, 496 P.3d at 882. The Supreme Court instructed that the factors are not to be “mechanically applied,” and how could they be? How can a case involve both an oft-repeated error and an issue of first impression? 

[xxii] See Re Petition for Writ of Prohibition, 168 Idaho 909, 489 P.3d 820 (2021) (granting writ of prohibition).

[xxiii] The published decisions do not accurately reflect the number of writ petitions granted by the Idaho Supreme Court during that time. Depending on the circumstances, the Court will summarily grant a writ of mandate or prohibition without issuing a decision.

[xxiv] Wash. R. App. P. 2.1(a)(2), 2.3. For a more comprehensive discussion than we provide here, see Geoffrey Crooks, Discretionary Review of Trial Court Decisions Under the Washington Rules of Appellate Procedure, 61 Wash. L. Rev. 1541, 1548 (1986), and Stephen J. Dwyer et al., The Confusing Standards for Discretionary Review in Washington and a Proposed Framework for Clarity, 38 Seattle U. L. Rev. 91 (2014).

[xxv] Wash. R. App. P. 17.2, 1.1(f).

[xxvi] A party who disagrees with a commissioner’s decision may move the Court of Appeals to modify the ruling. Wash. R. App. P. 17.7(a).

[xxvii] Minehart v. Morning Star Boys Ranch, Inc., 156 Wash. App. 457, 462, 232 P.3d 591, 594 (2010) (cleaned up); see also In re Dependency of Grove, 127 Wn.2d 221, 235, 897 P.2d 1252, 1259 (1995) (“A party moving for discretionary review of an interlocutory trial court order bears a heavy burden.”).

[xxviii] Wash. R. App. P. 2.3(b)(1)-(3). There is also a fourth circumstance, which is largely identical to the permissive appeal standard under I.A.R. 12(a). See Wash. R. App. P. 2.3(b)(4).

[xxix] See Crooks, supra, 61 Wash. L. Rev. at 1548.

[xxx] See, e.g., Macias v. Mine Safety Appliances Co., 158 Wash. App. 931, 935–36, 244 P.3d 978, 979–80 (2010).

[xxxi] See, e.g., Long v. Dugan, 57 Wash. App. 309, 310–11, 788 P.2d 1, 1-2 (1990) (reversing denial of motion to dismiss because wrongful death statute does not give nondependent siblings right of action); Barfield v. Estate of Barfield, No. 51884-4-1, 2003 WL 21055110, at *1 (Wash. Ct. App. May 12, 2003) (reversing denial of summary judgment where suit was filed after expiration of limitation period).

[xxxii] In re Dependency of N.G., 199 Wash.2d 588, 598, 510 P.3d 335 (2022).

[xxxiii] See, e.g., Bellevue Square, LLC v. Whole Foods Mkt. Pac. Nw., Inc., 6 Wash. App. 2d 709, 712, 432 P.3d 426, 428 (2018) (reversing grant of preliminary injunction where specific performance was not warranted); Ameriquest Mortg. Co. v. State Att’y Gen., 148 Wash. App. 145, 156–57, 199 P.3d 468, 472-73 (2009) (reversing denial of motion for preliminary injunction where the trial court improperly combined the preliminary injunction hearing with the permanent injunction trial).

[xxxiv] See Filo Foods LLC v. City of SeaTac, 179 Wash. App. 401, 405, 319 P.3d 817, 819 (2014).

[xxxv] State v. Alpert, 21 Wash. App. 2d 1062, 2022 WL 1210528, at *4 (2022) (unpublished) (cleaned up).

[xxxvi] See Cal. Const. art. VI, § 10. California has enacted statutory writs, which are the exclusive method to obtain review of certain orders, such as orders granting or denying a motion to disqualify judge, Cal. Code Civ. Proc. § 170.3(d) and a motion to change venue, Cal. Code Civ. Proc. § 400, among other motions. 

[xxxvii] Cal. Code Civ. Proc. § 1086. Common law writs also include writs of prohibition, Cal. Code Civ. Proc. § 1103; writs of certiorari, Cal. Code Civ. Proc. § 1068; and writs of supersedeas, Cal. Code Civ. Proc. § 923. 

[xxxviii] Jon B. Eisenberg, California Practice Guide: Civil Appeals and Writs ¶ 15.1.3, Westlaw (database updated Nov. 2022); Omaha Indem. Co. v. Superior Court, 209 Cal. App. 3d 1266, 1271, 258 Cal. Rptr. 66, 68 (1989).

[xxxix] See Omaha Indem. Co., 209 Cal. App. 3d at 1273–74, 258 Cal. Rptr. at 69–70.

[xl] Id. at 1274, 258 Cal. Rptr. at 70.

[xli] Id.

[xlii] Robbins v. Superior Ct., 38 Cal. 3d 199, 205, 695 P.2d 695, 698 (1985).

[xliii] See, e.g., Du-All Safety, LLC v. Superior Court, 34 Cal. App. 5th 485, 495–97, 246 Cal. Rptr. 3d 211, 217–18 (2019) (mandate proper where trial court violated party’s statutory right to supplement expert witness disclosure); Gertner v. Superior Court, 20 Cal. App. 4th 927, 930, 25 Cal. Rptr. 2d 47, 49 (1993) (mandate proper in probate proceeding where, under terms of applicable statute, trial court lacked discretion to grant creditor’s petition to file late claim); Waicis v. Superior Court, 226 Cal. App. 3d 283, 287, 276 Cal. Rptr. 45, 48 (1990) (mandate proper to review discovery ruling denying a party fair opportunity to litigate the case); Omaha Indem. Co., 209 Cal. App. 3d at 1271–74, 258 Cal. Rptr. at 68–70 (mandamus proper where trial court abused its discretion denying a motion to sever without prejudice).

[xliv] See I.R.C.P. 11.2, 59, 60; I.C.R. 35.

[xlv] Int’l Real Est. Sols., Inc. v. Arave, 157 Idaho 816, 819, 340 P.3d 465, 468 (2014).

By Jennifer M. Jensen and Zachery J. McCraney

Courts have different rules for defining the record on appeal. Where there is variation, there is room for strategy – and error.

Readers of The Advocate are no doubt familiar with the Idaho Supreme Court rules establishing the district court clerk handling of the compilation of the appellate record, with the parties’ input.[i] And one cannot help but admire the system in the Sixth Circuit – where everything filed in the district court is electronically stamped with consecutive page numbers throughout the entire case, like Bates numbers in discovery.[ii] Accordingly, on appeal in the Sixth Circuit, counsel need only identify the page ranges of the district court record upon which they rely.[iii] It is simple and easy.

In contrast to these simple systems, the Ninth Circuit process for compiling the record is more involved. The appellant (if represented by counsel) must compile the relevant parts of the district court record and submit them as the official “Excerpts of Record” with the opening brief.[iv] The respondent may submit “Supplemental Excerpts of Record” with the answering brief.[v] And on reply the appellant may add “Further Excerpts of Record.”[vi] The point of this procedure “is to compile for the Court all parts of the record, but only those parts of the record, that are relevant and useful to the Court in deciding the appeal.”[vii]

The Ninth Circuit process is straightforward in many cases. The appellant identifies and compiles the key orders, briefing, documentary evidence, and transcripts. The respondent identifies and compiles whatever relevant portions of the record the appellant did not include. Often there is no need for Further Excerpts of Record.

But what if the appellant urges reversal on the basis of insufficient evidence at trial? There it can be trickier.

Imagine, for instance, a fraud case in which the defendant loses at trial. The plaintiffs insist that the defendant swindled them by selling them an expensive, bogus remedy for depression. The defendant appeals, arguing that there was insufficient evidence of fraudulent intent. According to the defendant, at most there was evidence that he was honestly mistaken; he had believed all along that the remedy worked.

With his opening brief, the defendant submits Excerpts of Record consisting of the district court’s order denying his motion for judgment notwithstanding the verdict, the briefing leading to that order, and the transcript of the defendant’s testimony at trial as well as most of the defense exhibits. The Excerpts of Record include no testimony or exhibits from the plaintiffs. The testimony from the plaintiffs was generally averse to the defendant, and there were emails plaintiffs put into evidence indicating that the defendant knew the remedy did not work.

By including in his Excerpts of Record only favorable evidence on the issue of fraudulent intent, the defendant (appellant) has opened himself up to an argument that his appeal should be dismissed because he violated Federal Rule of Appellate Procedure 10.[viii] Rule 10 states in relevant part, “If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.”[ix] Thus, the standard is relevance – regardless of whether the evidence is favorable.

The Ninth Circuit has taken a hard line on Rule 10 in some cases, including in a published opinion as recently as 2021, when it dismissed a civil appeal in which the appellants omitted certain evidence from the Excerpts of Record that was unfavorable to their case alleging racial animus in an interrogation.[x] The appellants omitted the testimony and reports of the interrogator, the respondent’s expert’s testimony on interviewing techniques, and another respondent witness’s reports.[xi] Dismissal occurred notwithstanding the fact that the respondent could submit the omitted evidence as its Supplemental Excerpts of Record.[xii] The point therefore was not whether the appellants’ omission could be cured but rather the appellants’ failure to comply with their Rule 10 obligations to provide all relevant evidence on appeal.[xiii]

In similar situations, the Ninth Circuit has likewise dismissed the appeal or summarily affirmed due to omissions from the appellate record that violate Federal Rule of Appellate Procedure 10.[xiv] This might seem draconian. Neither the language of Rule 10 nor the Ninth Circuit rules mandate such dismissal. But Rule 10(b)(2) does clearly state that it is incumbent on the appellant to include all relevant evidence in the record if the appellant contends that a conclusion was unsupported by the evidence. That duty brings risk. The appellant needs to anticipate what the respondent would identify as relevant and include that evidence in the Excerpts of Record. If in doubt, just include it.

---

---

[i] See Idaho App. R. 28.

[ii] See 6th Cir. R. 28(a)(1).

[iii] See Fed. R. App. P. 30(a)(1); 6th Cir. R. 28(a)(1).

[iv] 9th Cir. R. 30-1.2(a); 9th Cir. R. 30-1.3 (“A party proceeding without counsel need not file excerpts. If such a party does not file excerpts, counsel for appellee or respondent must file Supplemental Excerpts of Record that contain all of the documents that are cited in the pro se opening brief or otherwise required by Rule 30-1.4, as well as the documents that are cited in the answering brief.”).

[v] 9th Cir. R. 30-1.2(b).

[vi] 9th Cir. R. 30-1.2(c).

[vii] 9th Cir. R. 30-1.1.

[viii] See Fed. R. App. P. 3(a)(2) (“An appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal.”).

[ix] Fed. R. App. P. 10(b)(2).

[x] Martinez v. United States, 997 F.3d 867, 882-83 (9th Cir. 2021).

[xi] Id. at 882.

[xii] See id. at 883.

[xiii] See id.

[xiv] See, e.g., Sw. Adm’rs, Inc. v. Lopez, 781 F.2d 1378, 1380 (9th Cir. 1986) (dismissing appeal); Silva v. Riverside Cnty. Tax Collector (In re Silva), No. 21-60037, 2022 WL 2287434, at *2 (9th Cir. June 24, 2022) (summarily affirming court below); Bank of Am., NA v. Breckenridge at Mts. Edge Homeowners Ass’n, 830 F. App’x 237, 238 (9th Cir. 2020) (dismissing appeal).

Fonda L. Jovick
President
Idaho Law Foundation

Happy New Year to you and your loved ones! In July, I began my term as President of the Idaho Law Foundation, taking over for Kari Campos. It’s an honor to serve in this role and I want to thank Kari for setting such a great example of what it means to be a strong leader for the Idaho Law Foundation.

I love this time of year. For me it always feels like the one time of the year when we look back and forward at the same time. We wrap up a period of celebration and set course for the new year ahead of us.

As we take stock of our year at the Foundation, we have a lot to be proud of. We have achieved so much more than I could reasonably share in this article but here are some highlights from our most recent annual report:

• 654 donors gave $146,147 to the Foundation and our programs
• 541 volunteers served 6,770 volunteer hours
• The Idaho Volunteer Lawyers Program processed 2,800 requests for pro bono legal services, opened 582 cases, and provided legal services for 516 individuals and families
• Law Related Education hosted a Constitution Day Event attended by 420 people including 118 attorneys, 27 non-attorney community members, and 275 students from 15 schools

When I use the word “we” in the context of Law Foundation accomplishments I include all Idaho attorneys. As you may know, attorneys licensed to practice law in Idaho are also members of the Idaho Law Foundation. Those of us who work for and with the Foundation do what we do both for our legal community and because of our legal community. So, thank you to all of you who continue to support our work.

As lawyers, it’s a key part of our profession to rely on evidence. Working to shine a light on the facts is a staple of what we do. For me, it’s important that I apply those same concepts to other parts of my life, reviewing important data as it relates to the work we do at the Foundation. Here are a couple important statistics to consider:

1. The Legal Services Corporation reports that each year 74% of low-income households experience at least one civil legal issue and 92% are not able to access the help they need.
2. The Annenberg Public Policy Center found that students who participate in civic education activities have significantly higher understanding of how our government and legal system impact their lives.

I realize that this is fairly dry information, but it’s important to share as a way to point out that the Idaho Law Foundation is one organization that is working to provide solutions to these societal issues. It’s right there in our mission: The Idaho Law Foundation supports the right of all people to live in a peaceful community through increasing access to civil legal services and enhancing public understanding of the law and our legal system.

This mission is always at the forefront of everything we do. It guides what we have done in years past and will frame our work in the year to come.

In 2023, the Idaho Volunteer Lawyers Program (“IVLP”) will continue their work to close the justice gap by creating access to civil legal services for low-income individuals and families who cannot afford legal representation. IVLP will build on their solid and proven track record for matching pro bono attorneys with people in need of direct legal representation and grow their legal clinic model. They will also work to innovate how they provide services through activities like the new Emeritus Program developed in partnership with the Idaho Supreme Court to engage retired attorneys in meaningful pro bono activities.

In the year to come, Law Related Education (“LRE”) will continue to bolster civic education in Idaho. From mock trial to Constitution Day to our popular 18 in Idaho publication and website, LRE will ensure that Idaho students have access to better understand the law and our legal system. In 2023, LRE has plans to extend our mock trial program to middle school and is partnering with DisAbility Rights Idaho to ensure our materials include information for Idahoans with disabilities.

As it is in every year, I am confident that Law Foundation programs will work diligently to support our mission. And of course, we know that we can rely on you, our Idaho attorneys, as our partners in this important work. To that end, we ask that you consider supporting our programs. You can donate when you fill out your annual licensing form or visit us online at idaholawfoundation.org to donate or sign up to volunteer for one of our programs

As I sit here considering both the past and future of the Idaho Law Foundation, I can share that I am proud to be part of an organization that does such good work in all parts of Idaho. It’s a joy and honor to get to work with the staff, Board, and volunteers who participate in the Foundation. As we set course for the year to come, I invite you to be part of it.

If you have any questions about the Foundation or our programs, contact Carey Shoufler at cshoufler@isb.idaho.gov.

---

Jessica Perez

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)[i] is a familiar friend to all family law practitioners. It is the heart of a state’s ability to make a child custody determination. On one hand, the UCCJEA is a well-organized statute broken up into four parts. The General Provisions govern definitions, appearance, limited immunity, etc. The Jurisdictional provisions govern initial child custody jurisdiction, temporary emergency jurisdiction, simultaneous proceedings, and exclusive, continuing jurisdiction, as well as numerous other issues.

The Enforcement provisions include registration of a child custody determination from out of state, recognition and enforcement of an out-of-state custody determination, and more. Finally, the UCCJEA gives us the short Miscellaneous Provisions, which includes the application and construction of the statute, a severability clause, and transitional provision.  Each of those four parts is critical for its own reason. At some point, each family law practitioner has, or will, come across a case whose facts will trigger different and/or multiple sections of the UCCJEA.

On the other hand, the provisions of the UCCJEA can be very nuanced. The most common and usually the first question is, where is the child’s home state?  This question sounds fairly basic but in actual practice it can be incredibly difficult to pinpoint where the child’s home state is. This question is crucial to answer because in order to know where to file your divorce or custody action, you must establish which state has initial jurisdiction to make and enter a final child custody determination.

To do that, you must answer that first question, where is home or more specifically, where is there home state jurisdiction? This can lead to jurisdictional fights before a divorce or custody action has even taken off.  Jurisdictional issues are particularly common along those Idaho towns that share a border with a neighboring state.

In order to really put the UCCJEA and the importance of understanding home state jurisdiction into context, it is helpful to look at a hypothetical. Say you consult with Husband, Viz; you ask your detailed questions and discover that he and Wife, Wanda, have been separated for a year.  Wanda moved to Idaho at that time and has been working in the healthcare industry in Idaho. Viz remained in Oregon but is an engineer in Idaho. The parties have real property in Oregon. The twin minor children, Billy and Tommy, age two, have been going back and forth between states in a manner that you believe either state could exercise home state jurisdiction.

Daycare is in Oregon as are the majority of the extended family members.  Idaho has a presumption in favor of joint custody, whereas Oregon courts cannot award joint custody unless the parties agree to joint custody. Perhaps the facts of that consult lead you to believe that sole custody for Viz would be in the children’s best interest. There’s also the fact that Idaho is a community property state and Oregon is not (for our purposes here, that is an issue for another time). Additionally, it would just be easier to deal with the divorce assets in an Oregon Court. The bad news is, Wanda has already retained counsel and filed for divorce in Idaho.

The consult, the questions, and where to start

Initial child custody jurisdiction is set forth in Idaho Code 32-11-201(a), which provides, in relevant part, as follows:

“(a) [A] court of this state has jurisdiction to make an initial child custody determination only if: (1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state[.]”

What is this “home state” that section (a)(1) is talking about? The definitions section in I.C. 32-11-102(g) tells us that home state is “the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child custody proceeding.”  This is where math comes into play.  Fortunately for us attorneys, it’s pretty simple math. For children less than six months old home state “means the state in which the child lived from birth with any of the persons mentioned.” Id. 

Determining where the child has lived for the purpose of home state jurisdiction means attorneys should look back to six months from the date they are planning on filing their petition and ask their client lots of questions. Questions such as where the child or children have been within that timeframe, on what dates, for how long, and what their connection is with the previous state (if any). The connections to the other state can be anything from where the children go to school, where are their doctors, to whether they are members of a club in another state.

Since the UCCJEA is adopted in all states, these same rules apply across the board. Remember, I.C. 32-11-201(a)(1) says Idaho is the “home state of the child within six months before the commencement of a proceeding and the child is absent from this state but a parent…continues to live in this state.”  It does neither party or the attorney any good to file in Idaho on behalf of the Idaho parent if the minor child had been equally in Oregon and the other parent still resides in Oregon, and the child is more connected to Oregon. That Oregon parent is also looking at their state’s UCCJEA and thinking, “well, is it not obvious that even though the minor child is absent from this state, I am still here and so Idaho should not have home state jurisdiction?” Or maybe the Oregon attorney is thinking that for their client?

Of course, if your client is telling you the child has been in Idaho his or her entire life, this is not an issue. On the other hand, if your client is telling you that the other party lives in Oregon, or perhaps your client moved to Idaho only a few months ago and the parties are sort of doing their own parenting plan and the child is going from Idaho to Oregon (or Utah or Washington) every so often, then you know right out of the gate that you should do your due diligence and make sure you are asking the right questions and filing in the appropriate state. This can be as simple as pulling out a calendar and adding up the days the child or children have been in Idaho. In some instances, that may lead to a split that could go either way in favor of Idaho having home state jurisdiction.

The argument for declining jurisdiction

Even if Idaho is not the home state, Idaho can potentially still make an initial child custody determination. This scenario is provided for in I.C. 32-11-201(a)(2), which provides that Idaho may exercise initial child custody jurisdiction when:

“A court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 32-11-207 or 32-11-208, Idaho Code, and: (A) The child and the child’s parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and (B) Substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships.”

In cases where home state jurisdiction is in question, once the other state that could exercise home state jurisdiction has entered an order declining jurisdiction based on Idaho being a more appropriate or convenient forum, then Idaho can safely exercise initial child custody jurisdiction. Only then can Idaho make and enter a child custody determination.

Knowing these little nuances can also help an attorney attack jurisdiction on the Idaho side as well. While we all enjoy practicing in Idaho, for one reason or another you might decide that it’s best for your client’s case and in the best interest of the child that your client file in a different state. This could be for any number of reasons, such as the law in the other potential home state may be more favorable to your client, or simply because you’ve looked back those six months and determined there is no way Idaho is the home state. In the case of the law of another state being more favorable you would of course want Idaho to decline jurisdiction. This is where being licensed in that other state or even having a colleague to call and discuss the jurisdictional issue with is helpful.

In these situations, it also becomes evident that sometimes, especially in a divorce matter, the home state issue and where you are going to challenge jurisdiction is heavily influenced by the parties’ assets or where it might be easier to get an order for spousal support. This is not to say that any of these reasons should undercut your ability to look at what is in the best interest of the child.

Let’s return to Viz and Wanda. For Viz and the best interest of the children, you need Idaho to decline jurisdiction and enter an order that the other state is the more convenient forum. Idaho Code 32-11-207 allows the Idaho courts to analyze certain factors in order to decline jurisdiction based on Idaho being an inconvenient forum. In order for the court to determine that it is an inconvenient forum, it must first decide that another state – Oregon in our couple’s scenario – is an appropriate state to exercise jurisdiction.

To do that, the UCCJEA has provided a list of factors for the court to analyze. That non-exhaustive list includes: (1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) The length of time the child has resided outside this state; (3) The distance between the court in this state and the court in the state that would assume jurisdiction; (4) The relative financial circumstances of the parties; (5) Any agreement of the parties as to which state should assume jurisdiction; (6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child; (7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and (8) The familiarity of the court of each state with the facts and issues in the pending litigation.

All those detailed questions and digging into the connection between the child and the state are going to pay off at this point. Now is your chance to tell the court about those connections as they relate to the I.C. 32-11-207 factors, and Oregon being the child’s home state for the purpose of entering a child custody determination.

The argument for retaining jurisdiction in Idaho

If you represent Wanda in this scenario, you want Idaho to keep jurisdiction. You are arguing that Idaho is in fact the home state and it should exercise home state jurisdiction. Even if the other state could exercise jurisdiction, Idaho is the more convenient forum for our case.

Let’s say you discover there is also a piece of real property in Idaho, or maybe the majority of both parties’ extended family members are in Idaho. Since Idaho courts can decline to exercise its jurisdiction, these types of facts are crucial in persuading the judge that another state is not a more appropriate forum. Idaho Code 32-11-207(b) tells us that Idaho courts must consider whether a court of another state is the more appropriate forum before declining jurisdiction.

Idaho courts need to be able to point to the evidence and back up their analysis on why Idaho has jurisdiction to make a child custody determination under the UCCJEA. As Wanda’s attorney, you are still using those 32-11-207 factors to analyze the evidence and the facts in a way that demonstrates that the Idaho court has the stronger position and should not decline jurisdiction or find that Oregon is the more convenient forum.

Alternatively, suppose Viz filed in Oregon first and Wanda successfully challenged Oregon’s jurisdiction.  As Wanda’s Idaho attorney, you are going to want to show the Idaho Court that Oregon has already entered an order declining jurisdiction. This goes back to I.C. 32-11-201(a)(2)(A)-(B). However, Idaho courts will also be looking for evidence that the children, or at least one of the parents has a “significant connection” with Idaho, something that is more than just “mere physical presence.” Id. Additionally, the court will need to see that “substantial evidence is available in [Idaho] concerning the children’s care, protection, training and personal relationships.” Id.

All those initial questions that you ask your client are going to be helpful regardless of which side you are on. We know both parties work in Idaho and Wanda has established a residence in Idaho for a year. You can therefore use the I.C. 32-11-207 factors as a guide to demonstrate on Wanda’s side, why Idaho has jurisdiction to make the child custody determination. Ultimately, in our couple’s scenario, regardless of who you represent, the children’s home is where the evidence and more persuasive argument say it is.  There are many different facts that can change a case and change the connection to the state that will then impact what is considered the child’s home state. It is crucial that attorneys ask those questions about the connection to the state when there is a move involved or when there is any hint that there may be an issue determining where the child’s home is for the purposes of UCCJEA. As we’ve just seen, a child’s home is a fact-specific inquiry.

---

[i] The UCCJEA is codified in Idaho Code 32-11-101 to 32-11-405. All references to the Idaho Code are also references to the UCCJEA.

---