Category: Digital Advocate

By Kevin A. Griffiths

Introduction

Declaring bankruptcy requires a disclosure of all of your “assets,” and this requirement is broad, necessitating the identification of lawsuits both actual and potential.  Failing to identify pending lawsuits—or, on the more difficult front, potential lawsuits—can have dramatic consequences.  As a result, a pitfall that can befall any litigator arises when the client has declared bankruptcy immediately before, during, or after the injury that gave rise to the litigation.  At its most basic this implicates the equitable defense of judicial estoppel, which can prove a complicated issue to litigate.

While this issue is well settled for claims arising prior to the bankruptcy petition, questions remain concerning claims arising during (or after) the pendency of the bankruptcy. This article will explore two recent decisions from the Bankruptcy Court for the District of Idaho which provide valuable guidance on ownership of claims arising during the pendency of bankruptcy as well as the need to amend bankruptcy schedules to disclose those claims in order to avoid a subsequent judicial estoppel issue.

The Intersection of Bankruptcy, Estoppel, and Civil Litigation

“Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position.”[i] The purpose of the doctrine is to protect the integrity of the judicial system by preventing a party from gaining an advantage through misrepresentations to the court.

This defense often arises in response to claims pursued by those who have been through bankruptcy and is based upon a debtor in bankruptcy’s obligation (or failure) to disclose all potential claims to the bankruptcy trustee. “In the bankruptcy context, a party is judicially estopped from asserting a cause of action not raised in a . . . plan [or petition] or otherwise mentioned in the debtor’s schedules or disclosure statements.”[ii]

Judicial estoppel “will be imposed when the debtor has knowledge of enough facts to know that a potential cause of action exists during the pendency of the bankruptcy but fails to amend his schedules or disclosure statements to identify the cause of action as a contingent asset.”[iii] This is because non-disclosure, by implication, would indicate that the claim has no value, which is a position that is inconsistent with later pursuit of the claim.[iv]

The Idaho Supreme Court’s decisions concerning judicial estoppel in the bankruptcy context have made clear that when a party is chargeable with knowledge of a claim prior to the filing of the bankruptcy petition, i.e., when an injury occurs prior to bankruptcy, judicial estoppel applies.[v] The issue, however, is more nuanced. The Idaho Supreme Court has yet to address the treatment of claims that arise after the initial filing of the bankruptcy petition and property schedule, but before discharge is granted. Fortunately, two recent decisions from the U.S. Bankruptcy Court for the District of Idaho shed some light on this subject: Wisdom v. Gugino (In re Wisdom)[vi] and Avery v. Mikkelsen (In re Mikkelsen).[vii] In re Wisdom lays a foundation, later built upon by In re Mikkelson, which suggests that the relevant inquiry in determining whether judicial estoppel applies turns on whether the claim would have belonged to the bankruptcy estate. Each of these cases, their interplay, and the conclusions to be drawn therefrom are discussed below.

In re Wisdom

The issue presented by In re Wisdom required the bankruptcy court to deal with a variety of claims asserted by the debtor against his legal counsel arising out of his representation during the bankruptcy to determine whether it had jurisdiction over those claims. The debtor’s claims were based upon three specific incidents—(1) liquidation of the debtor’s insurance policies, (2) sale or compromise of the debtor’s pro se lawsuits, and (3) counsels’ withdrawal from representation of the debtor—all of which the Court determined arose post-petition.[viii]

In the context of determining whether it had subject-matter jurisdiction over the malpractice claims asserted by the debtor, the bankruptcy court was required to determine whether those claims were sufficiently related to the bankruptcy case to render them “core” proceedings.[ix] The bankruptcy court found that the claims were unrelated, and it lacked jurisdiction over them, because they were based upon post-petition conduct and belonged to the debtor, not the bankruptcy estate, and could be pursued by the debtor under state law outside of the bankruptcy court. In making this finding, the Court found that the claims presented, arising as they did from post-petition conduct, “have no impact upon the administration of the bankruptcy case, or on property of the estate, or on the distribution to creditors. . . .”[x]

In re Mikkelsen

In re Mikkelsen builds on the concepts explored by In re Wisdom to determine ownership of claims against the debtors’ former attorneys arising from both pre- and post-petition conduct. The procedural history of In re Mikkelsen reflects a somewhat complicated invocation of the principles underlying judicial estoppel (although the term is never explicitly invoked). In re Mikkelsen was an adversary action against the debtors brought by their former attorneys in bankruptcy court seeking a determination that a state court malpractice filed against the attorneys was property of the bankruptcy estate and could not be pursued by the debtors in state court.[xi] This course of action, presumably, was pursued in lieu of simply raising the defense of judicial estoppel in the state court action, as the principle remains.

The claims against the debtors’ former attorneys were based upon alleged negligent preparation of a homestead declaration prior to the filing of the bankruptcy petition which allowed the trustee to successfully avoid the debtors’ homestead exemption claim. The debtors also alleged that their former attorneys had negligently advised them to pay off certain financial obligations prior to filing the bankruptcy petition, which resulted in the debtors being required to reimburse the bankruptcy estate for those payments.

In its decision, the bankruptcy court expanded on its reasoning from Wisdom by again focusing on the issue of whether the claims in question were property of the bankruptcy estate. The bankruptcy court found that even though it was dealing with claims based upon conduct that occurred pre-petition, that fact alone did not make the claims the property of the estate. Instead, the relevant inquiry was whether the cause of action in question accrued pre- or post-petition.[xii] In short, claims that have accrued prior to the filing of the petition are property of the bankruptcy estate while those accruing post-petition are not.

The bankruptcy court noted accrual is to be determined according to state law, which for negligence claims requires the occurrence of “some damage.”[xiii] Under this legal framework, the bankruptcy court determined that even though the debtors’ claims were based upon pre-petition conduct, the claims accrued post-petition because the debtors were not damaged until the trustee avoided their homestead exemption and successfully sought reimbursement for pre-petition debt payments. Thus, the bankruptcy court determined that the malpractice claims were not the property of the estate and could be properly pursued in state court, granting the debtors’ motion to dismiss.

Conclusion

Although neither In re Wisdom nor In re Mikkelsen use the term “judicial estoppel,” they are dealing with the underlying concept—benefit to the bankruptcy estate and its impact on a debtor’s ability to pursue claims arising around the time of filing the petition. Those decisions indicate that if the claim does not belong to the bankruptcy estate, non-disclosure is not per se inconsistent with later pursuit of the claim by the debtor.

In re Mikkelsen, in particular, indicates that the deciding factor is claim ownership, which is to be determined based upon when the cause of action accrued. That is, if the claim accrued post-petition, a debtor has a strong argument that judicial estoppel does not apply even if the claim was not disclosed on the debtor’s bankruptcy petition. This does not mean, however, that a debtor who has made the determination that a claim has not yet accrued should not disclose the claim to the bankruptcy court as the Idaho Supreme Court has made clear that there is a continuing “duty to disclose all assets and potential assets.”[xiv] Instead, these decisions show that one of the key factors to be taken into account when dealing with a judicial estoppel defense is whether the claim(s) in question had accrued at the time bankruptcy was declared.

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[i] A & J Const. Co. v. Wood, 141 Idaho 682, 684 (2005)

[ii] Id. at 685 (quoting Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 783 (9th Cir. 2001).

[iii] Id. at 686 (quoting Hamilton, 270F.3d at 784).

[iv] See id. at 688, 116 P.3d at 18 (“It is undisputed that A & J succeeded in persuading the bankruptcy court to accept its prior position, in which it failed to disclose any interest in either the real property subject to the dispute or the joint venture agreement. Now, A & J takes an inconsistent position by seeking to have the courts determine the existence, nature and extent of its interest in the nondisclosed real property and joint venture agreement.”).

[v] See, e.g., id. (holding that plaintiff seeking accounting of a joint venture was judicially estopped from doing so because he knew of the interests before his bankruptcy filing and did not disclose that interest to the trustee); see also Strong v. Intermountain Anesthesia, P.A., 160 Idaho 27 (2016) (finding that plaintiff was judicially estopped from pursuing undisclosed medical malpractice claim arising from procedure performed prior to bankruptcy); Mowrey v. Chevron Pipe Line Co., 155 Idaho 629 (2013) (finding that plaintiff was estopped from pursing personal injury claim arising from undisclosed pre-bankruptcy injury); McAllister v. Dixon, 154 Idaho 891 (2013) (finding that undisclosed malpractice claim based upon medical procedure performed over a year before the bankruptcy was barred by the doctrine of judicial estoppel.)

[vi] Wisdom v. Gugino (In re Wisdom), Case No. 11-01135-JDP, Adv. No. 13-06045-TLM, 2016 WL 872102 (D. Idaho Bankr. Mar. 7, 2016).

[vii] Avery v. Mikkelsen (In re Mikkelsen), Case No. 16-01489, Adv. No. 18-06018-TLM, 2018 WL 4182448 (D. Idaho Bankr. Aug. 30, 2018).

[viii] In re Wisdom, 2016 WL 872102 at *1. 

[ix] Id. at *1-2.

[x] Id. at *2.

[xi] In re Mikkelsen, 2018 WL 4182448, at *1.

[xii] Id. at *2.

[xiii] Id. at *3.

[xiv] A & J Const., 141 Idaho at 686, 116 P.3d at 16.

By D. Andrew Rawlings

The situation is familiar.  Your client has filed a claim in a lawsuit.  The other party has been served.  The time to respond has passed.  But the other party has not responded.  Reflexively, legal practitioners seek default.  To refine this legal reflex, this article is intended to clarify the terminology and delve into some common trouble spots in the analysis of both default and default judgment.  Precise vocabulary leads to better analytical understanding and, together with clear applications, provides a simpler path to obtaining default judgment.

From the outset, it is important to bear in mind that “judgments by default are not favored.”[i]  While this is frequently applied ex post facto to support granting relief from a judgment “in doubtful cases in order to decide the case on the merits,”[ii] it also places a gatekeeping function on the court.  For this reason, compliance with all of the requirements for default and default judgment is essential.  The better a party’s submissions in pursuit of default judgment are, the more likely they are to be granted the desired default judgment.

Distinguishing Default from Default Judgment

Frequently in lawyers’ parlance “default” includes the default entered against a party and the resulting judgment.  While this can be a convenient shorthand, the rules of civil procedure use these terms more specifically.  “Courts distinguish a judgment by default from the mere entry of default. … An entry of default and an entry of default judgment are two separate events or steps.”[iii]  As a result, entry of default can occur simultaneously with default judgment or the two can occur at different times.

The entry of default is the first step and does not constitute a judgment.[iv]  The entry of default, by itself, is interlocutory and not an appealable order.[v]  The effect of default being entered against a party is that the defaulted party is no longer entitled to be served with orders, pleadings (except as to new claims against the defaulted party), motions, memoranda, notices, etc.[vi]  In short, a defaulted party is not usually entitled to further notice of the proceedings.[vii]

In contrast, default judgment is—above all—a judgment.  It must comport with all of the requirements of judgments in Idaho Rule of Civil Procedure 54(a).  Thus, it must be titled a “Judgment”; “begin with the words ‘JUDGMENT IS ENTERED AS FOLLOWS:…”; “state the relief to which a party is entitled on one or more claims for relief in the action”; and “must not contain a recital of pleadings, the report of a master, the record of prior proceedings, the court’s legal reasoning, findings of fact, or conclusions of law.”[viii]  Once signed by the court, it can be enforced like any other judgment.

Entry of Default

The entry of default is governed by Rule 55(a).  Generally, “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the court must order entry of the party’s default.”[ix]  For this reason, entry of default is not an area of discretion for the trial court but is mandatory when the underlying conditions are satisfied.[x]  There are three underlying conditions that require the court to enter default against a party: (1) proper service on the party (2) who has failed to plead or otherwise defend (3) within the time for doing so.

First, a party must be served with the claim.  Service of an original complaint, third-party claim, or a new claim for relief against an already-defaulted party must comply with Rule 4. Once completed, the written proof of service must be filed unless the defendant files an appearance.[xi]  When the claim is not in an original pleading (e.g., a counterclaim, crossclaim, or an amended claim), service must comply with Rule 5 and the Rule on Electronic Filing and Service.  After appropriate service is completed, the served party has the obligation to “plead or otherwise defend.”[xii]

Second, to plead or otherwise defend usually means filing a responsive pleading[xiii] or a Rule 12(b) motion.[xiv]  A defendant may instead file a notice of appearance, but doing so will not prevent the entry of default, though it does create an additional procedural hurdle.  “If a party has appeared in the action, that party must be served with three days’ written notice of the application for entry of default before default may be entered.”[xv]

But this notice can also be necessary even without a formal notice of appearance being filed with the Court.  The term “appearance” is “broadly defined” and comes down to whether there are sufficient indications of a defendant’s “intent to defend against the action.”[xvi]  Thus, “[s]ufficient contacts between attorneys” can constitute an appearance.[xvii]  Even engaging with a plaintiff’s attorney and attending a deposition has been considered an appearance,[xviii] though that “probably marks the outer bounds of activity that can be considered an appearance.”[xix]

Accordingly, an appearance is not completed by a single letter to plaintiff’s attorney,[xx] a single phone message proposing a settlement,[xxi] “participating in preliminary settlement negotiations,”[xxii] or “[t]estifying as a witness at a deposition.”[xxiii]  Ultimately, “[t]o amount to an appearance, the defendant’s actions must be responsive to plaintiff’s formal court action, so it is insufficient to simply be interested in the dispute or to communicate to the plaintiff an unwillingness to comply with the requested relief.”[xxiv]  The key action is an indication of acknowledged representation of defendant—either by an attorney or self-representation—in response to the lawsuit.[xxv]

Third, the timeframe for pleading or defending (or appearing, to trigger the additional notice) depends on the procedural posture.  A party must respond “21 days after being served with” a summons and complaint, counterclaim/crossclaim, or an order to reply.[xxvi]  Alternatively, the timeframe to respond is 14 days after an amendment is filed,[xxvii] the trial court decides a Rule 12(b) motion,[xxviii] or a more definite statement (resulting from a successful Rule 12(e) motion) is filed.[xxix]  Finally, a shorter time can be set with the consent of the defaulting party and a court order shortening the time for a response made upon a showing of good cause by the non-defaulting party.[xxx]

Mechanically, the non-defaulting party must seek the entry of default against a party that has failed to timely appear.  After establishing adequate service (under Rule 4(g) or 5(e)), the non-defaulting party must submit an application and an affidavit (or a declaration, per Rule 2.7) showing that the defaulting party (1) failed to plead or otherwise defend (2) within the time for doing so, and (3)if the defaulting party “appeared,” whether the required additional notice was provided.  Upon a satisfactory showing, the court must enter default against the defaulting party.

Default Judgment

Default judgment is governed by Idaho Rule of Civil Procedure 55(b).  The procedures are somewhat different depending on whether the claim is for a “sum certain” or not.  Each of these situations warrants separate consideration.

Default Judgment for a Sum Certain

When the “claim is for a sum certain or a sum that can be made certain by computation, the court, [once all the requirements are met], must order judgment for that amount and costs against the party who has been default.”[xxxi]  Note that default judgment is also a mandatory action, but only once the requirements for it are satisfied.  The requirements are spelled out in the rules.  Just as with the entry of default, default judgment requires an application and an affidavit (or declaration).  When a “sum certain” or calculable is sought, the non-defaulting party must submit an application and a supporting affidavit (or declaration).

At a minimum, the application must certify: (1) the name of the party against whom default judgment should be entered,[xxxii] and (2) the address most likely to give notice of the default judgment to that party.[xxxiii] The supporting affidavit (or declaration) must show: (1) the amount due and the method of calculation,[xxxiv] (2) an original instrument evidencing the claim (unless otherwise permitted by the court),[xxxv] and (3) that the party against whom default judgment should be entered: (a) Was personally served (“other than by publication or personal service outside of this state”),[xxxvi] (b) has been defaulted,[xxxvii] (c) is not a minor or incompetent,[xxxviii] and (d) is not protected by the Servicemembers Civil Relief Act (“SCRA”), 50 U.S.C. §§ 3901–4043. In submitting these materials, some points are common trouble spots in obtaining default judgment and bear further description.

First, the amount due and the method of calculation must be clear.  Thus, if interest is being claimed, the calculation needs to be understandable.  Except in very limited circumstances, “courts in Idaho are averse to awards of compound interest.”[xxxix]  And specifically, practitioners must be aware that “[p]rejudgment interest is not compounded” in Idaho.[xl]  Thus, for purposes of default judgment, a claimant is only entitled to simple interest.[xli]  To show the calculation of simple interest, the affidavit or declaration should show: (a) the principal amount due, (b) the due date, (c) the number of days from the due date to the date of the application for default judgment, and (d) the interest per diem.  The first and second items are factual allegations that should already be in the pleading.  The third is readily counted.  The fourth requires some accounting acumen.

 Unless otherwise specified in a contract, statute, or rule, Idaho’s prejudgment interest rate in most cases is 12% per annum.[xlii]  Divided by 365 days per year, this yields an effective rate of approximately 0.0329% per day (using a spreadsheet program will diminish rounding errors but, in any event, the use or disuse of rounding must be explained so the court can understand the calculation).  Multiplying that per day interest rate by the principal results in the interest per diem.  With that, the total interest due is calculated by multiplying the interest per diem by the number of days from the due date to the date of the application for default judgment.

Second, it is worth noting that the default rule is that a party seeking default judgment must provide “any original instrument evidencing the claim,” and can only be relieved of that obligation if the court permits otherwise.[xliii]  None of the local rules of any of the judicial districts discuss this requirement to provide an original instrument.[xliv]  Thus, without a specific court order providing otherwise in the pending action, a non-defaulting party is required to submit “any original instrument evidencing the claim.”[xlv]  As most default judgments for a sum certain arise from a contract, the contract at issue is the original instrument.

From an evidentiary point of view, this original instrument must be properly authenticated.[xlvi]  While the term “original” is used in this rule, and is the best evidence,[xlvii] the rules of evidence provide that a “duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity, or the circumstances make it unfair to admit the duplicate.”[xlviii]

Third, while a detailed discussion of the SCRA, codified at 50 U.S.C. §§ 3901–4043, would be lengthy, compliance with the SCRA is usually straightforward.  Generally speaking, the SCRA is “a federal law that provides protections for military members as they enter active duty.”[xlix]  If the defaulted party is a business entity, it cannot be protected by the SCRA since it cannot be a “servicemember” protected by these federal statutes.[l]  If the defaulted party is an individual, there are means of obtaining a report showing whether that person is a “servicemember.”[li]

Default Judgment in Other Cases

In “other cases,” including where a “sum certain” is not sought or where the defendant is a “minor or incompetent person,” the non-defaulting party must submit an application.[lii]  But because this category of default judgment definitionally encompasses all of the claims that cannot “be made certain by computation,” the rule provides some additional explicit protections and more adaptable procedures the court can use.   

One protection in Rule 55(b)(2) is that default judgment can only “be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared.”[liii]  Another protection provides for three days’ notice prior to a hearing for any party that has appeared.[liv]  When default is sought at the same time as default judgment in this case, the three days’ notice for both can be combined, although a hearing is required to obtain a default judgment.[lv]

Beyond that, the issues depend on the case.  To accommodate all of the variances possible in these cases, the rule provides that the “court may conduct hearings or make referrals when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter.”[lvi]

Costs and Attorney Fees Upon Default Judgment

A party prevailing by means of a default judgment is, like any other prevailing party, entitled to an award of costs pursuant to Rule 54(d) and, perhaps, attorney fees per Rule 54(e).  This requires a memorandum of costs, which can be combined into the application and affidavit/declaration filed to seek default judgment.

Along with costs, attorney fees may be awarded to a prevailing party, even in a default judgment, “when provided for by any statute or contract.”[lvii]  However, “[n]o attorney fees may be awarded pursuant to Idaho Code section 12-121 on a default judgment.”[lviii]  Thus, under whatever basis the attorney fees are claimed as part of the default judgment, “the amount of attorney fees in the event of default must be included in the prayer for relief in the complaint and the award must not exceed the amount in the prayer.”[lix]

Further, when fees are claimed in a default judgment under Idaho Code § 12-120, the “award of attorney fees … must not exceed the amount of the judgment for the claim, exclusive of costs.”[lx]  Consequently, when fees are claimed under a contract or another statute, the same restriction does not apply, and the fees can exceed the amount of the claim.[lxi]  In any event, the fees must be reasonable, and the court must have a basis to analyze the factors listed under Rule 54(e)(3).

Conclusion

Obtaining default and default judgment against a non-responsive party requires compliance with the applicable rules of civil procedure.  Understanding the analysis and presenting the requisite information clearly will make the process—for the Court and your client—more streamlined, effective, and efficient.

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[i]       Maynard v. Nguyen, 152 Idaho 724, 733, 274 P.3d 589, 598 (2011) (quoting Idaho State Police ex rel. Russell v. Real Prop. Situated in the Cnty. of Cassia, 144 Idaho 60, 62, 156 P.3d 561, 563 (2007), and citing Suitts v. Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005)). 

[ii]       Maynard, 152 Idaho at 733, 274 P.3d at 598 (citations omitted).

[iii]      Martinez (Portillo) v. Carrasco (Mendoza), 162 Idaho 336, 340-41, 396 P.3d 1218, 1222-23 (2017) (quoting 46 Am. Jur. 2d Judgments § 233 (2006) (omitting footnotes therein)). 

[iv]      See Martinez, 162 Idaho at 340–41, 396 P.3d at 1222–23. 

[v]       See id.

[vi]      Idaho R. Civ. P. 5(a)(2).

[vii]     Id.

[viii]     Idaho R. Civ. P. 54(a)(1). 

[ix]      Idaho R. Civ. P. 55(a)(1) (emphasis added). 

[x]       See Rife v. Long, 127 Idaho 841, 848, 908 P.2d 143, 150 (1995) (“This Court has interpreted the meaning of the word ‘may’ appearing in legislation, as having the meaning or expressing the right to exercise discretion. When used in a statute, the word ‘may’ is permissive rather than the imperative or mandatory meaning of ‘must’ or ‘shall’” (citation omitted)); see also Kimbrough v. Idaho Bd. of Tax Appeals, 150 Idaho 417, 420, 247 P.3d 644, 647 (2011) (“Administrative rules are interpreted the same way as statutes”). 

[xi]      Idaho R. Civ. P. 4(g)(1). 

[xii]     Idaho R. Civ. P. 55(a)(1).

[xiii]     See Idaho R. Civ. P. 7(a).

[xiv]     See Idaho R. Civ. P. 12(b). 

[xv]     Idaho R. Civ. P. 55(a)(1). 

[xvi]     Newbold v. Arvidson, 105 Idaho 663, 665, 672 P.2d 231, 233 (1983), abrogated on other grounds by Shelton v. Diamond Int’l Corp., 108 Idaho 935, 703 P.2d 699 (1985). 

[xvii]    Newbold, 105 Idaho at 665, 672 P.2d at 233 (citations omitted). 

[xviii]   Id. 

[xix]     Meyers v. Hansen, 148 Idaho 283, 289, 221 P.3d 81, 87 (2009) (citations omitted). 

[xx]     Marano v. Dial, 108 Idaho 680, 683, 701 P.2d 300, 303 (Ct. App. 1985).

[xxi]     Secured Inv. Corp v. Myers Exec. Bldg., LLC, 162 Idaho 105, 111, 394 P.3d 807, 813 (Ct. App. 2016).

[xxii]    Olson v. Kirkham, 111 Idaho 34, 36, 720 P.2d 217, 219 (Ct. App. 1986).

[xxiii]   Meyers, 148 Idaho at 289, 221 P.3d at 87. 

[xxiv]   Id. 148 Idaho at 288, 221 P.3d at 86 (internal brackets, quotation marks, and citation omitted; emphasis added). 

[xxv]    See Secured Inv. Corp., 162 Idaho at 111, 394 P.3d at 813. 

[xxvi]   Idaho R. Civ. P. 12(a)(1). 

[xxvii]   Idaho R. Civ. P. 15(a)(3).

[xxviii] Idaho R. Civ. P. 12(a)(2). 

[xxix]   Id.

[xxx]    Idaho R. Civ. P. 55(a)(2)(B).

[xxxi]   Idaho R. Civ. P. 55(b)(1) (emphasis added). 

[xxxii]   Idaho R. Civ. P. 55(b)(1) and –(3)

[xxxiii] Idaho R. Civ. P. 55(b)(1) and –(3) (which is the address the clerk “must use … in giving the party notice of judgment”).

[xxxiv] Idaho R. Civ. P. 55(b)(1).

[xxxv]   Id.

[xxxvi] Id.

[xxxvii]         Id.

[xxxviii]         Id.

[xxxix] N. Idaho Bldg. Contractors Ass’n v. City of Hayden, 164 Idaho 530, 432 P.3d 976, 990 (2018) (citing Holladay v. Lindsay, 143 Idaho 767, 770, 152 P.3d 638, 641 (Ct. App. 2006); Doolittle By & Through Doolittle v. Meridian Joint Sch. Dist. No. 2, 128 Idaho 805, 814, 919 P.2d 334, 343 (1996)). 

[xl]      Doolittle, 128 Idaho at 814, 919 P.2d at 343. 

[xli]     See id. 

[xlii]     Idaho Code § 28-22-104. 

[xliii]    Idaho R. Civ. P. 55(b)(1). 

[xliv]    See the Local Rules of each Judicial District, all available at: https://isc.idaho.gov/district-courts. 

[xlv]     Idaho R. Civ. P. 55(b)(1). 

[xlvi]    See Idaho R. Evid. 901. 

[xlvii]   Idaho R. Evid. 1002.

[xlviii]   Idaho R. Evid. 1003. 

[xlix]    United States Dept. of Justice, The Servicemembers Civil Relief Act (SCRA) (June 12, 2019), https://www.justice.gov/servicemembers/servicemembers-civil-relief-act-scra (citations omitted). 

[l]       See 50 U.S.C. § 3911(1) (“The term ‘servicemember’ means a member of the uniformed services, as that term is defined in section 101(a)(5) of title 10”). 

[li]       See, e.g., United States Dept. of Defense, Defense Manpower Data Center, Servicemembers Civil Relief Act (SCRA) Website (June 12, 2019), https://scra.dmdc.osd.mil/scra/#/home (which allows users, without an account or fee, to conduct a single record request to search a person’s social security number, date of birth, and name for purposes of showing SCRA compliance). 

[lii]      Idaho R. Civ. P. 55(b)(2). 

[liii]     Id. 

[liv]     Id. 

[lv]      Compare id. with Idaho R. Civ. P. 55(a)(1). 

[lvi]     Idaho R. Civ. P. 55(b)(2) (paragraphing modified).

[lvii]     Idaho R. Civ. P. 54(e)(1). 

[lviii]    Idaho R. Civ. P. 54(e)(2). 

[lix]     Idaho R. Civ. P. 54(e)(4)(B). 

[lx]      Id. 

[lxi]     See id. 

By Leland K. Faux

As an attorney primarily practicing in the area of consumer protection, I frequently handle cases involving used car sales and Idaho’s lemon law.  Nearly as frequently, I hear of other attorneys declining to take on those cases because they do not make financial sense or are not the type of case they handle.  Through this article I will address both issues: (1) how to address the economics of a used car case, and (2) how to navigate a used car case should you decide to take one.  Idahoans with legitimate claims should be able to find recourse other than having to eat the losses caused by a dealer’s deceptive or unlawful acts.

The Economic Reality of Used Car Cases

Most attorneys who handle these types of cases take them on a deferred fee basis, meaning the hourly fees—whether in whole or in part—are deferred until successful completion of the case. Theoretically, if you assist a consumer who has been the victim of unlawful acts by a dealer and win, the court will require the dealer to pay your attorney’s fees and costs.  Practically, attorneys structure the arrangement this way because many victims of deceptive or unfair acts by car dealers are not able to pay legal fees.

Idaho’s relevant law is the Idaho Consumer Protection Act (the “ICPA”)[1] and the Idaho Rules of Consumer Protection, (the “Consumer Rules”).[ii]  Idaho’s fee-shifting provision is found in Idaho Code § 48-608(5), which grants “reasonable attorney’s fees to the plaintiff if he prevails.” The Idaho Supreme Court has instructed that awarding fees to the prevailing consumer is “a nondiscretionary directive” and that “[a]llowing recovery of fees is consistent with and promotes the purpose and intent of the Consumer Protection Act.”[iii]  In fact, one purpose of the ICPA “is to provide attorneys with an incentive for representing litigants who assert publicly favored claims.”[iv]

In other words, the Idaho Legislature enacted the ICPA so that consumers can have protection against deceptive and unfair acts. This law is pointless if consumers lack the representation necessary to assist them in enforcing their rights. Thus, both the legislature and the Idaho Supreme Court have attempted to incentivize attorneys to help these people by mandating the award of attorney’s fees.

This does not mean that litigating for consumers is without risks to the attorney. You may not prevail, a district court may not award your fees, or you may not be able to collect even if you are awarded fees.  Attorneys who wish to help consumers will have to be willing to take on these risks.  Despite these risks, assisting consumers in obtaining relief can be an emotionally and financially fulfilling endeavor.

What to do with the Case?

If you feel incentivized to help, the next steps are to identify the key players and the potential causes of action. After this, it is just a matter of determining your litigation strategy.

The Key Players

A used car sale may involve the dealer, a salesperson, a lender, a surety bond, and the Idaho Transportation Department (“ITD”) by virtue of the Idaho Consumer Asset Recovery fund (“ICAR”).  There may also be a warranty or service contract provider.

The Key Players in buying a used car

• The dealer should be licensed. A list of current vehicle dealers can be found online through the ITD.
• The salesperson should be licensed. Idaho Code § 49-1610 grants a consumer a private right of action against the salesperson. You will have to request a salesperson licensing information from the ITD.
• The lender will take assignment of the Retail Installment Sales Contract and may thereby be liable for the conduct of the dealer through the federal Holder in Due Course Rule and its Idaho counterpart, IDAPA 04.02.01.210.
• Dealers are required to carry bonds for at least three years (Idaho Code § 49-1610). A surety may pay undisputed claims without a judgment (see Hestead v. CNA Supply, 152 Idaho 575, 580; 272 P.3d 547, 552 (2012)). Otherwise, bond claims are generally not actionable until after a judgment is obtained (see Idaho Code 49-1610(4)). As such, a claimant should consider giving notice of a claim to a surety in the event the claim is not disputed. Bond information must be requested from the ITD.
• The ITD oversees the ICAR. The ICAR will pay up to $50,000 for an award involving a single transaction (Idaho Code § 49-1680F). To be eligible to recover, an action that may become a claim on the fund must be served on the board (Idaho Code § 49-1608E(2)).
• If the dealer sold a service contract or extended warranty, identify the actual provider of the services and payment.

The Causes of Action

In the used car context, the primary hurdle is the “as-is” sale. The impression many people have (including attorneys and judges) is that an “as-is” sale means that the buyer has no recourse.  This is not so. There are many laws that may give a used car purchaser legal recourse against a dealer.  Here is a non-exhaustive list of the most common:

The ICPA. As referenced above, the ICPA prohibits businesses from engaging in deceptive acts and practices in the course of a trade.[v] These deceptive acts are delineated in Idaho Code § 48-603. The Consumer Rules specify others. You can literally go down the list in the ICPA and the Consumer Rules to see if you can make a case based on your client’s facts.

If you find a violation, the next question is whether you can show an “ascertainable loss” resulting from the violation. An “ascertainable loss” is:

Any deprivation, detriment, or injury, or any decrease in amount, magnitude, or degree that is capable of being discovered, observed, or established. It is not necessary for a private plaintiff to prove actual damages of a specific dollar amount to prove ascertainable loss, but only that the item was different from that for which the private plaintiff bargained, or that the private plaintiff suffered some like loss.[vi]

Because the Idaho Supreme Court has instructed that the ICPA should be “construed liberally,” this definition should likewise be liberally construed. [vii] Assuming an “ascertainable loss” has been demonstrated, the ICPA provides at least three useful remedies.

First, it allows the consumer to treat any related agreement as voidable[viii] or, alternatively, to seek actual damages (or $1,000, whichever is greater).[ix]  Second, the consumer “may also seek restitution, an order enjoining the use or employment of methods, acts or practices declared unlawful under this chapter and any other appropriate relief which the court in its discretion may deem just and necessary.”[x] Third, and notably, the consumer may request punitive damages “in cases of repeated or flagrant violations.”[xi]  The ICPA also provides enhanced penalties if the business engages in violations against a senior or disabled individual which results in certain losses.[xii]

UCC Revocation. Idaho Code section 28-2-608 states that “[t]he buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him” under certain circumstances. As with the voiding of a contract, this is a self-help remedy. Justifiably revoking the contract expunges the buyer’s obligations on the contact. It also grants the buyer a security interest in the vehicle.[xiii]  Because the obligations to the secured party have ceased, the secured party must terminate any lien.[xiv]  The failure to do so will expose the lender to damages, including the finance charge and 10% of the cash price.[xv]

Implied Warranties. Implied warranties will apply unless they are properly disclaimed by the seller. This is most often done by properly stating on the face of the contract that the sale is “as-is.”[xvi]  Indeed, all “as-is” means is that the vehicle does not come with implied warranties. Still, there may be exceptions to a disclaimer of warranties even if the “as-is” language is used by the dealer. For example, a dealer cannot disclaim the warranty of title. Additionally, the dealer may be prohibited from disclaiming implied warranties if they sell a service contract or warranty in connection with the vehicle.[xvii]  Finally, the language of Idaho Code section 28-2-316 itself suggests that the phrase “as is” disclaims implied warranties “unless the circumstances indicate otherwise.” Therefore, the circumstances surrounding the transaction may be at issue in determining whether the disclaimer was effective.

Express Warranties. The dealer may have created an express warranty under Idaho Code § 28-2-313. In the used car context, this most often will occur when the dealer makes “[a]ny affirmation of fact or promise . . . which relates to the goods and becomes part of the basis of the bargain” or provides “[a]ny description of the goods which is made part of the basis of the bargain.”[xviii]

False Advertising/Fraud. Even if a car is sold “as-is,” a dealer cannot engage in false advertising or fraud in making the sale. For example, if a dealer advertises that the vehicle is in “excellent condition” or “has no problems” and it turns out the bottom is rusted out so that the vehicle is not safe to be driven, the dealer may still be liable for the false representation. It’s not an issue of whether warranties apply. Rather, the issue is whether the dealer engaged in fraud to make the sale.

Violation of Disclosure Laws. When selling a used vehicle, dealers must disclose a Federal Used Car Buyers Guide that is designed to give consumers important information. This law also states that it is a deceptive practice for a dealer to “make any statements, oral or written, or take other actions which alter or contradict the disclosures.”[xix]  The violation of this regulation could result in an actionable claim. For example, a dealer may tell a consumer, “Don’t worry, if you have any problems you can bring it back and we’ll help you out.” This is an oral statement that would contradict the “as is” language on the Used Car Buyers Guide.

Additional disclosure requirements include the mileage (unless the vehicle is exempt—typically older than 10 years) and, if the car is financed, all finance charges and terms.

Litigation Strategy

Prior to asserting the claims in court, I believe a demand letter is important both ethically and tactically. Ethically, the demand letter gives the parties a chance “to secure the just, speedy and inexpensive determination” of the dispute.[xx]  I also believe it gives the defendants an opportunity to provide additional information that can be used to assess the merits of the case. Tactically, if your client wishes to void or revoke the agreement, sending a demand letter is a good way to set a clear date triggering those self-help remedies.

That being said, my experience is that most often the response will be a one-paragraph letter basically saying the demand letter is spurious and without merit followed by a threat about attorney’s fees or sanctions. I have my theories on why this is the case, but I think it is unfortunate because it forces cases that could or should be quickly and inexpensively resolved into prolonged litigation.

Conclusion

Representing victims of deceptive used car sales practices can be a rewarding area of practice. There are some unique dynamics and risks that come with the territory. Unfortunately, the main risk is that you might never get paid for your work.  Consequently, it is important to do your homework upfront.  Hopefully, the information in this article can point you in the right direction the next time you come across someone that has been wronged by a car dealer. You just might be the attorney they need.

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[1] Idaho Code § 48-601 et seq.

[ii] IDAPA 04.02.01 et seq.

[iii] Nalen v. Jenkins, 113 Idaho 79, 82, 741 P.2d 366, 369 (Ct. App. 1987).

[iv] Id. at 83, 370.

[v] See Idaho Code § 48-603.

[vi] IDAPA 04.02.01.020.

[vii] See Fenn v. Noah, 142 Idaho 775, 780, 133 P.3d 1240, 1245 (2006).

[viii] Idaho Code § 48-608.

[ix] Id.

[x] Id.

[xi] Id.

[xii] Id.

[xiii] Idaho Code § 28-2-711.

[xiv] Idaho Code § 28-9-513.

[xv] Idaho Code § 28-9-625.

[xvi] Idaho Code § 28-2-316.

[xvii]  15 U.S.C. § 2308(a).

[xviii] Idaho Code § 28-2-313(1)(a)-(b)

[xix] 16 CFR Part 455.4.

[xx] See I.R.C.P. 1.

By Hon. Michael J. Oths

“Why did you want to run for the Bar Commission?”  I’ve been asked this question many times over the last two years, including by my fellow Commissioner with a similar first name.  My answer to the question seemed easy, at first, but has led to some deeper reflection about the role the Idaho State Bar (ISB) serves for the legal profession.

As many of you know, I was Idaho’s Bar Counsel for 17 years before appointment as a Magistrate.  Although I’ve written a few “President’s Messages” in my time (a shout-out to the late, great Fred Hoopes) this is the first as ISB President.  The easy answer is that I have always enjoyed bar involvement, tracing all the way back to 1965, when my dad brought me to my first ABA Annual Meeting, in New York City.  At that time, I thought all lawyers went to bar meetings and that family vacations just necessarily involved such gatherings.  I recall asking my dad whether another lawyer from our small town (and his son) would be at the Ohio Bar convention, and being confused when dad said that the lawyer didn’t attend bar meetings.  I thought all lawyers did that.

One of the lessons gleaned from years of employment with ISB is that not all lawyers have the same view of bar activity.  Over the years, for example, we have devised different methods for encouraging attendance at the Annual Meeting.  Diane and I finally concluded that for some lawyers, we could hold the meeting across the street from their office, offer free registration, CLE and food, and they would still not attend.  It’s simply not “their thing.”  And that’s okay.

One of the challenges, then, of serving as a Bar Commissioner is to appreciate the different points of view.  Many of you simply want the trains to run on time, for the necessary administrative functions to be handled with optimum efficiency, and for us to otherwise stay out of your way.

One role of the Bar Commission is to take the lead in recognition of issues that may affect you, whether you realize it or not.  In the April 1986 edition of The Advocate (the month I was hired as Bar Counsel), then-President Howard Humphrey discussed the fluctuating legal malpractice market and whether it was time to explore the creation of a legal malpractice insurer owned and directed by lawyers.  That was the genesis of ALPS, which today covers a third of Idaho’s private malpractice market.  Being aware of tomorrow’s looming issue is an important role for the Bar Commission.

Others see the Bar as an avenue for lawyers, judges and law students to share a common experience.  These avenues are both social and professional.

During my term as Bar Commissioner, I have made a concerted effort to work an integration of the various constituencies.  Lawyers, judges, and law students have much in common.  Law students are invited for a free lunch at the Roadshow meetings, while lawyers are encouraged to serve as mentors.  The Idaho Magistrates Association has committed to sending at least one member from each judicial district to the Idaho State Bar Annual Meeting, while the Fourth District Bar intends to reinstitute bench-bar lunches.

The social interaction is important, but it also serves to allow us to relate shared experiences.  Much has been written recently about the anxiety associated with law school and within the profession.  The challenges are very real and the stress must be taken seriously, but it is also possible, through interaction with others, to celebrate the fact that law school, the practice of law, and the administration of justice through the judiciary is stressful because it is very difficult.  Not everybody can do what we do.  When we post-mortem a case with other lawyers and judges, we rarely do so about run-of-the-mill cases, but about ones that kept us up at night.

I recently read an interesting law review article entitled “Normalizing Struggle.” [i]  While primarily geared to law students, it has equal application to the practice of law.  The author notes that struggle is too often seen as the equivalent of failure. She suggests that struggle should be embraced in recognition of the reality that navigating law school is difficult.  The same is true for the practice of law – it is a challenging profession that frequently causes us to struggle.  Often the narrative is that our profession is too stressful, too difficult, and too thankless, without the self-congratulation that we are really good at what we do. So the answer to the predicate question is that I want to continue to be part of advancing our shared profession. I want to make sure that the administrative process is as painless as possible, but also want to continue to celebrate my lifelong association with an interesting and talented group of people.

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[i] Professor Catherine Christopher, to be published in an upcoming edition of the University of Arkansas Law Review.

By Mark J. Fucile

One of the most significant developments across the legal profession in the past 25 years has been the increasing frequency of cross-border practice by law firms and individual lawyers alike.  For firms, it has become common to have offices in more than one state.  For individual lawyers, it has become equally common to be licensed and practice actively in multiple states.  The reasons are many—ranging from regional economic integration to regulatory changes like reciprocal admission that make it easier to practice across state lines.

Generally, the increase in cross-border practice has been a positive development for both law firms and individual lawyers.  At the same time, it has also sharpened the focus on choice of law issues in law firm-related litigation.  This article will first survey the choice of law rules governing law firm-related litigation—including their practical effects.  It will then address proactive steps law firms can take to manage this risk.

The Rules

There are two primary choice of law rules governing law firm-related litigation.  The first is Idaho Rule of Professional Conduct 8.5(b), which controls choice of law in lawyer discipline and has increasingly been applied in other contexts where the RPCs are used as, in effect, substantive law such as disqualification.  The second is the Restatement (Second) Conflict of Laws (1971) and associated case law interpreting the Restatement.  The Restatement typically applies in settings such as legal malpractice that are controlled by a standard of care rather than the RPCs.  The Restatement also governs purely contractual aspects of lawyer-client agreements beyond the RPCs.

RPC 8.5(b).  RPC 8.5(b) was adopted in 2004 as a part of Idaho’s consideration of the American Bar Association’s “Ethics 2000” amendments to the corresponding ABA Model Rules of Professional Conduct.[i]  The text of RPC 8.5(b) has remained the same since then and sets the standard for choice of law in lawyer discipline:

“(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:
“(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and
“(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer is not subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.”

Comment 5 of Idaho RPC 8.5, in turn, was amended in 2014 to recognize choice of law provisions governing conflicts.  The amendment was patterned on a similar change to ABA Model Rule 8.5 as a part of the ABA’s “Ethics 20/20” review of the ABA Model Rules.[ii]  The addition to Comment 5 adopted in 2014 reads:

“With respect to conflicts of interest, in determining a lawyer’s reasonable belief under paragraph (b)(2), a written agreement between             the lawyer and client that reasonably specifies a particular jurisdiction as within the scope of that paragraph may be considered if the agreement was obtained with the client’s informed consent confirmed in the agreement.”

As noted earlier, RPC 8.5(b) controls choice of law determinations in lawyer disciplinary proceedings.  In re Summer, 105 P.3d 848 (Or. 2005), for example, involved a lawyer whose principal office was in Idaho but who was also licensed in Oregon.  The lawyer was accused of misrepresentations in handling prelitigation settlement negotiations for an Idaho client in two automobile accidents—one in Oregon and the other in Idaho.  Before reaching the merits, the Oregon Supreme Court evaluated whether the Oregon or Idaho RPCs should apply using a similarly worded predecessor to ABA Model Rule 8.5(b).  The Oregon Supreme Court determined that—under an equivalent to ABA Model Rule 8.5(b)(2)—the “predominant effect” of the lawyer’s actions occurred in Oregon and, therefore, decided the case under the Oregon RPCs.[iii]

RPC 8.5(b) has also been used beyond lawyer discipline when the matter involved focusses on a lawyer’s duties under the professional rules.  Philin Corp. v. Westhood, Inc., No. CV-04-1228-HU, 2005 WL 582695 (D. Or. Mar. 11, 2005) (unpublished), for example, involved a disqualification motion in a commercial dispute.  The defendant asserted that counsel for the plaintiff should be disqualified because one of the defendant’s directors had earlier discussed aspects of the dispute with a partner of the same law firm officed in Boston.  Before reaching the substance of the motion, the federal district court first considered whether the asserted disqualifying conflict should be assessed under Oregon or Massachusetts law.  The district court concluded—using an equivalent to ABA Model Rule 8.5(a)(1)—that it should review the matter under Oregon law because the case was being litigated there.

Restatement.  Although Idaho’s appellate courts have not yet addressed choice of law principles in a legal malpractice case, the Idaho Supreme Court in Grover v. Isom, 137 Idaho 770, 772-73, 53 P.3d 821 (2002), applied the Restatement to the analogous area of medical malpractice:

“Idaho applies the ‘most significant relation test’ as set forth in the Restatement (Second) of Conflict of Laws § 145 in determining the applicable law. In a tort case the following considerations must be taken into account:
“(a) the place where the injury occurred,
“(b) the place where the conduct causing the injury occurred,
“(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
“(d) the place where the relationship, if any, between the parties is centered.”[iv]

Increasingly, legal malpractice claims are being paired with claims for breach of fiduciary duty—usually involving asserted conflicts.[v]  Idaho’s appellate courts have not yet determined the appropriate choice of law standard in this context.  On a practical level, however, “predominate effect” under RPC 8.5(b)(2) and “most significant relation” under the Restatement should generally produce the same result—but might be influenced by a choice of law selection if the decision turns heavily on competing conflicts analysis and the parties had designated controlling law on that point.  Similarly, fee-related issues are generally treated as contract matters and, therefore, should ordinarily be subject to the Restatement’s choice of law portions governing contracts—principally Sections 187 addressing contractual choice of law clauses and 188 outlining choice of law factors when the parties have not included a controlling provision.[vi]  Nonetheless, fee disputes are also increasingly intertwined with issues under the RPCs—most notably the “fee rule”—RPC 1.5—but also the conflict rules if disgorgement is sought as a remedy.[vii]  Again on a practical level, RPC 8.5(b)(2) and the Restatement will likely not produce disparate results unless a conflict issue looms large and the parties designated controlling law on that point in their fee agreement.

Practical Effects.  Particularly when conflicts are involved, nuances can occasionally make for starkly different outcomes.  Although the states surrounding Idaho generally use conflict rules patterned on the ABA Model Rules, subtle variations remain that can impact whether or not a given conflict has been effectively waived.  Wyoming RPC 1.7(b)(4), for example, requires that a conflict waiver be signed by the clients concerned whereas Idaho’s version simply requires that a waiver be “confirmed.”  Oregon RPC 1.0(g), in turn, defines “informed consent” for conflict purposes to include a requirement that “the lawyer shall give and the writing shall reflect a recommendation that the client seeks independent legal advice to determine if consent should be given.”  Idaho does not include a similar requirement for most waivers.[viii]

Just as the conflict rules are not uniform regionally, neither are other RPCs that litigators encounter relatively frequently.  The “no contact” rule, for example, varies in important respects among Idaho, Oregon and Washington even though they share a common rule number—4.2—and are all based generally on the corresponding ABA Model Rule.  In Idaho, the text of RPC 4.2 limits the prohibition on direct contact to a person represented in the matter in which the contact occurs.  By contrast, the Oregon Supreme Court in In re Newell, 234 P.3d 967 (Or. 2010), extended the prohibition to factually related matters as well.  In Idaho, Comment 7 to RPC 4.2 includes line-level corporate employees within the representation of corporate counsel if the opposing party is attempting to hold the corporate employer liable through the acts of the employee involved.  By contrast, the Washington Supreme Court in Wright v. Group Health Hospital, 691 P.2d 564 (Wash. 1984), held that such line-level employees do not automatically fall within corporate counsel’s representation unless they are “speaking agents” of the corporation under Washington evidence law.

Beyond the RPCs, other variations in the law of lawyering can produce markedly different results depending on which state’s law controls.  Idaho, for example, stands apart from other states regionally in permitting attorney fee recovery by the prevailing party in at least some legal malpractice claims involving “commercial transactions.”[ix]  Idaho joins some other states regionally, like Washington, in allowing Consumer Protection Act claims against law firms while others, like Oregon, do not.[x]  Idaho’s limitation period for legal malpractice claims is two years while Utah’s corresponding period is four.[xi]

Risk Management

Two tools stand out in managing choice of law risk.

First, as noted earlier, Comment 5 to RPC 8.5 now permits firms to include choice of law provisions in their retention agreements with clients.  Although Comment 5 is nominally limited to conflicts, it does not necessarily preclude broader choice of law provisions governing the contract-based elements of a representation.[xii]  Further, conflicts can be particular flashpoints for regulatory discipline, disqualification and civil claims.  In a multi-state setting, specifying the controlling jurisdiction will at least clarify which law applies and guide decision-making accordingly.  At the same time, firms need to assess the practical application of this tool.  Although there is no “sophisticated user” prerequisite, the informed consent requirement means on a practical level that a choice of law provision is more likely to be enforced with a corporate client being advised by its legal department than against unsophisticated individuals.

Second, to borrow an adage from highway travel before GPS, “know before you go.”  When handling a matter that crosses state lines, a primary task of law firm risk management is to understand the nuances of the jurisdictions involved.  Taylor v. Bell, 340 P.3d 951 (Wash. App. 2014), for example, involved a malpractice claim by an Idaho client against a Washington law firm asserting that the firm was negligent in advising him on a facet of Idaho law central to a business transaction in Idaho.[xiii] 

Summing Up

Over the past quarter century, we have witnessed a sea change in cross-border practice for both individual lawyers and their firms.  With that has come the need to weigh choice of law issues both more frequently and more carefully as a routine part of law firm risk management as those issues have assumed a larger role in law firm-related litigation.

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Author Bio
Mark Fucile of Fucile & Reising LLP handles professional responsibility, regulatory and attorney-client privilege matters for lawyers, law firms and legal departments throughout the Northwest.  He is a member of the Idaho State Bar Litigation and Professionalism & Ethics Sections.  He has chaired of the Washington State Bar Committee on Professional Ethics and teaches legal ethics as an adjunct for the University of Oregon School of Law’s Portland campus.  He can be reached at 503.224.4895 and Mark@frllp.com.

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            [i]Developments at the ABA are summarized in ABA, A Legislative History:  The Development of the ABA Model Rules of Professional Conduct, 1982-2013 (2013) (ABA Legislative History) at 865-79.  For a summary of Idaho’s consideration of the ABA Ethics 2000 amendments generally, see Hon. Michael J. Oths, E2K Is on the Way, 46 Idaho State Bar Advocate 17 (June 2003).

            [ii] See ABA Legislative History, supra, at 876-77.  For a general discussion of Idaho’s review of the ABA 20/20 amendments, see Larry C. Hunter and Bradley G. Andrews, Idaho to Consider Following ABA on Electronic Communication, Outsourcing and Confidentiality, 56 Idaho State Bar Advocate 26 (Sept. 2013).

            [iii] Notwithstanding the Oregon Supreme Court’s finding, the lawyer was convicted for the same misconduct under Idaho law.  See State v. Summer, 139 Idaho 219, 76 P.3d 963 (2003).

            [iv] For a comprehensive review of choice of law in Idaho generally, see Andrew S. Jorgensen, Choice of Law in Idaho:  A Survey and Critique of Idaho Cases, 49 Idaho L. Rev. 547 (2013) (Jorgensen).

            [v] See, e.g., Blough v. Wellman, 132 Idaho 424, 974 P.2d 70 (1999).

            [vi] See generally Jorgensen, supra, 49 Idaho L. Rev. at 568-77 (surveying Idaho choice of law decisions involving contracts).

            [vii] See, e.g., In re Larson, No. 03-04001, 2004 WL 307182 (Bankr. D. Idaho Jan. 30, 2004) (unpublished) (disqualifying lawyer for conflict and ordering disgorgement of fees).

            [viii] An exception is Idaho RPC 1.8(a) that governs lawyer-client business transactions and includes a requirement that the client be “advised in writing of the desirability of seeking . . . independent legal counsel[.]”

            [ix] See generally H-D Transport v. Pogue, 160 Idaho 428, 435-37, 374 P3d 591 (2016) (discussing attorney fee recovery in legal malpractice claims under Idaho Code § 12-120(3)).

            [x] See Taylor v. McNichols, 149 Idaho 826, 846, 243 P.3d 642 (2010); Short v. Demopolis, 691 P.2d 163, 165-71 (Wash. 1984); Roach v. Mead, 722 P.2d 1229, 1234-35 (Or. 1986).

            [xi] See Parsons Packing, Inc. v. Masingill, 140 Idaho 480, 482, 95 P.3d 631 (2004); Jensen v. Young, 245 P.3d 731, 735 (Utah 2010); see also Idaho Code § 5-239 (“borrowing” statutes of limitation).

            [xii] See generally Jorgensen, supra, 49 Idaho L. Rev. at 568-71 (compiling Idaho appellate decisions enforcing contractual choice of law clauses).

            [xiii] See also Taylor v. Riley, 162 Idaho 692, 403 P3d 636 (2017) (summarizing the Idaho portion of this litigation).

By Brett Marshall, Staff Writer

On the surface, 18-year-old David Cooper appears to be just another typical high school basketball player. After all, he’s not a starter on the undefeated Hutchinson Salt Hawk team. As a 6-2 senior forward, Cooper comes off the bench to spell one of the HHS frontline staters. He doesn’t score a lot – he averages just four points.

But David Cooper is a special player for this Hutch High team.

“He continually amazes me with how we he has his life together,” said HHS coach Dan Justice of David. “He even teaches me a lot with out he handles himself.”

David, you see, suffered a tragedy last June that few people experience. His father and mother, George and Wilma Cooper, his older brother, Guy, and an older sister, Leslie Lehman, all drowned in a flash flood June 14, 1981, in the Pedernales River in East Central Texas near Johnson City.

David, along with his sister-in-law, Patty Coleman, who was married to Guy, witnessed the tragedy. To this day, it is a tragedy that David cannot, and will not, forget. But it is an event he will discuss without hesitation.

“Since I was there from the moment it happened, I was able to tell myself that there is nothing I can do … I just have to go on.”

Text cut off; picks up at the following:

“…wall built around me and I didn’t want to think about it. But then I gradually snapped out of it and now it doesn’t bother me to talk about it.”

In order to collect social security benefits, David had to enroll in 12 hours of college classes at Hutchinson Community College. That came when legislation under the Reagan administration, due to go into effect May 1, was passed recently.

As a result, David attends four hours of high school classes daily, Monday through Friday. On Monday, Wednesday and Friday, he is in college classes from 1-3 p.m. Wednesday and Thursday nights he has classes from 7-10 p.m.

In between, he practices basketball daily. A busy schedule, indeed.

“So far it’s not too bad,” says David. “I didn’t take too many hard classes at the junior college. The high school classes aren’t that bad either. Wednesday is the only day I have to squeeze everything in.” David doesn’t mind the hectic schedule though.

“I don’t have anything on weekends so I can still maintain a social life and that’s important to me,” says David. “Before basketball season started, I would be bored after school was out. Going to college has helped me with my study habits. I’m sure it will be a big help when I go off to school next fall.”

On the basketball floor, however, David is able to erase thoughts of a busy schedule.

Text cut off; picks up at the following:

“I wasn’t sure how much I was going to get to contribute. Coming off the bench like I do, I feel I must do something while I’m in there, not just take up space. There’s no use playing if you don’t contribute. If you do something worthwhile, your teammates have confidence in you and your ability.” David considers his defense and shooting to be his strengths.

“I love to come in and play good defense and help the team out,” he says. “My shooting is a little streaky. Some nights I can’t miss and other nights I can’t make a thing.”

David doesn’t consider himself to be anybody special just because of what he’s accomplished under…

Text cut off; picks up at the following:

“My parents raised us to be independent as much as possible,” says David of his father and mother. “That was a key factor for me. I was already independent before. Patty has been a big help to me. I prayed a lot and that gave me strength.”

David talks of the accident, which at the time seemed endless to him.

“There were hours of waiting,” he recalls. “I could feel how terrified they were, especially my mom. She was scared of water.”

A helicopter was called in to help in the rescue of the Coopers, but it arrived 10 minutes too late.

“There wasn’t much anybody could do; it’s just one of those things,” David says in retrospect. David now lives with the Lyle Neville family. Neville is the HHS wrestling coach. His son, Lane, is a close friend to David.

“They approached me about living with them and it seemed like a good thing to do,” he says. “They’ve been great to me. I couldn’t ask for anybody to treat me any better than they have.”

David has no reservations about the way he has pieced his life together.

“One thing that makes me feel good is that I think I’ve acted the way he’d [David’s father] want me to,” says David. “He was a psychologist and he taught me how to handle things. I told my parents a year ago that I thought I had been brought up really well,” David says. “The way I’ve handled things is a credit more to them than it is to me.”

By Bobbi K. Dominick

Much has been written about promoting diversity in the legal profession.[i]  Intense focus has centered around women, but the goal of diversity is to encourage, support, and assist those with many diverse backgrounds to enter, and excel, in the legal profession.  This includes diverse backgrounds and experiences such as national origin, race, religion, disability, age, and orientation. Organizations that promote diversity and inclusion perform better, achieve better results, and have increased employee engagement.[ii]  Diversity increases the bottom line of organizations.[iii]  Diversity is an issue worthy of our attention, for economic reasons, as well as the overall goal of improvement of the legal profession.

What are the barriers to increased diversity within the legal profession? A recent report examining female attrition stated this issue succinctly: “[O]ne of the most pernicious hurdles to achieving a satisfying legal career is the unfortunate and continuing problem of sexual harassment.”[iv] This article will examine sexual harassment as a barrier to diversity and provide thoughts for improving diversity.

Harassment is Just One of Many Barriers to Diversity in Law

Recent Advocate articles provide an excellent summary of statistics on female attorneys in Idaho,[v] and bias and its potential impact upon the advancement of women in law.[vi]  Those articles, and other research,[vii] point to numerous factors contributing to women leaving the profession or not advancing to positions of greater authority.  Some factors may be purely personal choices on the part of individual attorneys who choose a different career or life path.  But some reasons for women and minorities leaving the practice may be within our control, and eliminating harassment as a barrier is one of them.

Harassment in the Legal Profession: Statistics and Surveys

A discussion of the impact of workplace harassment must start at the beginning. How prevalent is harassment in the legal profession? Statistics are sporadic and often hard to find, especially if we focus solely upon Idaho.

First, those in protected classes are clearly underrepresented in the law, and thus often in the minority. The articles referenced above cite statistics about women (in Idaho, 28% of attorneys are female, nationally the number is 36%). Statistics nationally indicate a low percentage representation for attorneys with disabilities (perhaps as low as 7%),[viii] those of Hispanic origin (9.9%), Black (5.5) and Asian (4.9).[ix] Since these groups are underrepresented does this mean that they are more susceptible to harassment?   According to the EEOC’s recent study of workplace harassment, it does.[x]

Another important point from the recent study: “[w]hen the target of harassment is both and member of a racial minority group and a woman, the individual is more likely to experience higher rates of harassment than white women. Moreover, when the target of harassment is both a member of a racial minority group and a woman, the individual is more likely to experience harassment than men who are members of the same racial minority group.”[xi] While the research is sparse, the same is likely true of those who are members of more than one protected class.

Other states have conducted surveys to discover the prevalence of harassment.  For example, a 2005 California survey found that 50% of female attorneys reported experiencing sexual harassment.[xii] The Florida Bar’s study found that 17% had been subjected to harassment based on their gender.[xiii] Utah’s 2010 survey revealed that 37% of women attorneys responding had experienced verbal or physical behavior that created an offensive work environment. Of those, 86% identified gender as the basis for the harassment.[xiv]

As you can see, there is a wide swing in the numbers.  Some of that may be attributable to the way the word “harassment” is defined, the way survey questions are worded, or individual nuances in the responder’s understanding of harassment.  As the EEOC study noted, the numbers who reported harassment rose when the questions included gender demeaning and derogatory behavior.[xv]

Despite the difficulty of interpreting these statistics and applying them to the Idaho experience, several things are certain:

• Harassment does exist,
• It likely exists in legal practice in Idaho, and
• It is a barrier to women and minorities thriving.

Harassment in the Law: What Kinds of Behaviors are We Talking About?

Harassment that doesn’t involve propositions or sexual language can still form a barrier to diversity.  The EEOC has said: “harassment not involving sexual activity or language may also give rise to Title VII liability…if it is ‘sufficiently patterned or pervasive’ and directed at employees because of their sex.”[xvi] Social science research indicates that mistreatment and incivility, whether it rises to the level of illegal harassment or not, can lead to the same kind of harm as harassment, and creates a barrier to advancement.[xvii]  Research also tells us that those subjected to this kind of treatment often respond by leaving the organization.[xviii]

Recent surveys and stories have detailed other types of harassment that female attorneys have been subjected to, often not even the typical sexual propositions, but rather demeaning comments and behavior.[xix]  Examples that women have shared with me, or that have appeared in articles or case law,  include bringing a female attorney into the courtroom as “window dressing,” because “witnesses prefer young and pretty,” or it would be good for “the jury to see a pretty face.” Other examples might include comments made about lipstick, clothing, body parts, makeup and hair, directed only towards women, implying a sexualized or diminished view of the person and their capabilities. Jokes about women could be demeaning, like using #MeToo as a punchline, or comments about women succeeding by “sleeping with the judge,” implying that women cannot advance on their own merits without using gender as an advantage. Comments about women not being serious about their legal careers because they want to have babies and start families also fall into this category (speaking from personal experience).  Other micro-aggressions might include labeling women’s behavior as “bitchy” or “aggressive,” or cautioning against being “naïve” or “weak.”

Harassment based on race, national origin, religion, disability is often this kind of “negative stereotype” harassment.  Behavior, comments, or attitudes that make a particular class of people feel unwelcome, unappreciated, or unrecognized discourages them from remaining in a profession or organization. Examples might include using pet names, interrupting or ignoring, or dismissive comments. These types of behaviors impede diversity and prevent the advancement of women and minorities.

We Don’t Have a Problem, Do We?

Many legal professionals reading this article may think to themselves: “well, this is all theoretical, because we don’t have a problem in our organization.” That type of thinking is naïve at best and damaging at worst.  Research indicates that every type of profession may experience protected class harassment.[xx]

The EEOC consulted with experts and examined what types of organizations are most at risk for harassment.  Some of the risk factors clearly apply to legal organizations:

• Homogenous workforce: Ironically, when an entity is made up of primarily one gender (or other protected class, that makes the organization more susceptible to harassment, and the legal profession, based on the above statistics, clearly falls into this risk factor.
• Workplace “norm” dependent environments: When the written or unwritten norms for how people must “behave” tend to favor the dominant class, those who do not meet those norms are harassed at higher rates.  This could affect women, but also those with disabilities, different national origins, different religions, and different orientations.
• Power disparity environments: A high power or valuable asset, like a rainmaking senior partner, offers a power disparity that creates a higher risk of harassment.
• Client satisfaction factors: When the environment is client dependent, there is a higher risk of harassment, because bad client behavior may be tolerated or even condoned. [xxi]

Another common misconception: “no one has complained, so it may be happening elsewhere, but not here.” But the statistics tell a different story.  The vast majority of those who are subjected to harassing behavior do not complain at all. For many, the solution is to put up with the behavior, minimize the seriousness of it, try to ignore it, or simply to leave that environment.[xxii]  This not only damages the diversity of that particular organization but also can be a setback to career advancement for the individual who leaves.

Even when someone does complain, those in a position to respond may not act.  This happens for many different reasons. Perhaps most common is that the person to whom the individual complains views the behavior from a different lens, and may not see the harmfulness of the behavior.  Other common reasons the behavior might be ignored include the high value of the offender, the difficulty of resolving conflict in the workplace, or perceptions of the person complaining (i.e., questioning motives for complaining, etc.) Another common reason is that there is no process in place in many legal organizations (especially smaller ones) to address complaints, so leaders simply don’t know what to do.

So What Do We Do About This? Some Suggestions

Study and Prevention

A current survey and study should be conducted on harassment (all protected classes) in the legal profession in Idaho.[xxiii] While we know from statistics in other professions that harassment likely exists, we need to know the types of issues we are dealing with specifically in Idaho. Our professionalism efforts should also help lawyers focus upon effective human resource management, including both diversity and harassment prevention.

Internal Organizational Efforts

At a minimum, each legal organization in Idaho could assess the impact of harassment within their organization and develop strategies for removing this diversity barrier diversity. Every law firm and legal department should engage in proactive efforts to raise the level of concern about harassment that might be occurring, and encourage attorneys to come forward with complaints.  This includes serious work on training, policies and complaint resolutions efforts.  While specific suggestions are beyond the scope of this article, there are many ways to find these suggestions.  Two sources are listed in the endnote.[xxiv]

Where Do We Go From Here?

The discussion above highlights some of the difficulties of, and potential solutions for, eliminating harassment in the law.  While beyond the scope of this article, any serious discussion surrounding eliminating bias and harassment must also include a discussion of whether ethical rules should address harassment and bullying.  Many states have adopted some version of Rule of Professional Conduct 8.4, addressing the ethics of discriminatory behavior.  Idaho recently went through a process of assessing this, but after the Bar (on a divided vote) concluded that the rule should be adopted, the Idaho Supreme Court (on a divided vote) declined to implement the rule and directed more study on the issue.[xxv]  Firms and entities can internally deal with harassment within their walls, but some protected class harassment is perpetrated by attorneys outside our firm/organization.  The only effective way to combat such offensive behavior, and provide accountability, maybe through ethical rules.

In addition, efforts to promote professionalism in the practice of law may also be an effective deterrent to harassment, as many studies have found that bullying and disrespect provides a breeding ground for unlawful harassment.[xxvi] It may be time to more closely examine, and enhance, our professionalism efforts to specifically address this issue.

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[i]  See, e.g., Deborah L. Rhode, From Platitudes to Priorities: Diversity and Gender Equity in Law Firms, 24 Georgetown Journal of Legal Ethics 1041 (2011); Douglas E. Brayley & Eric S. Nguyen, Good Business: A Market-Based Argument for Law Firm Diversity, 34 J. Legal Prof. 1, 4-8 (2009); Jason P. Nance & Paul E. Madsen, An Empirical Analysis of Diversity in the Legal Profession, 47 Connecticut Law Review 271 (2014).

[ii] Stefanie K. Johnson, What 11 CEOs Have Learned About Championing Diversity, Harvard Business Review (August 29, 2017) located at https://hbr.org/2017/08/what-11-ceos-have-learned-about-championing-diversity.

[iii] Id.

[iv] Stephanie Ann Scharf, The Problem of Sexual Harassment in the Legal Profession and its Consequences (February 2018) located at https://www.scharfbanks.com/sites/default/files/assets/docs/report.pdf.

[v] Jessica R. Gunder, Women in Law: A Statistical Review of the Status of Women Attorneys in Idaho, The Advocate, (February 2019).

[vi] Alison M. Nelson, Spotlight on Bias, The Advocate (February 2019).

[vii] See, e.g., Achieving Long-Term Careers for Women in Law, report pending, ABA Commission on Women in the Profession, located at https://www.americanbar.org/groups/diversity/women/initiatives_awards/long-term-careers-for-women/.

[viii] See ABA Disability Statistics Report, 2011, ABA Commission on Mental and Physical Disability Law, https://www.americanbar.org/content/dam/aba/uncategorized/2011/20110314_aba_disability_statistics_report.pdf.

[ix] https://www.bls.gov/cps/cpsaat11.htm.

[x] U.S. Equal Employment Opportunity Commission, Select Task Force on the Study of Harassment in the Workplace, EEOC (June 2016) located at https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm (EEOC Report).

[xi] EEOC Report, at pp. 13-14.

[xii]  Chang and Chopra, “Where are All the Women Lawyers?” https://www.360advocacy.com/wp-content/uploads/2015/10/ChangChopraArticle-1.pdf.

[xiii] The Florida Bar, 2015 YLD Survey on Women in the Legal Profession,  https://www-media.floridabar.org/uploads/2017/04/results-of-2015-survey.pdf.

[xiv] Women Lawyers of Utah, The Utah Report: The Initiative on the Advancement and Retention of Women in Law Firms (Oct. 2010), at http://utahwomenlawyers.org/wp-content/uploads/wlu_report_final.pdf.

[xv] EEOC Report, p. 8.

[xvi] EEOC,  1990 Policy Guidance on Current Issues of Sexual Harassment, https://www.eeoc.gov/policy/docs/currentissues.html.

[xvii] Lilia M. Cortina, et. al., Researching Rudeness: The Past, Present, and Future of the Science of Incivility, 22 Journal of Occupational Health Psychology 299 (2017); Sandy Lim & Lilia M. Cortina, Interpersonal Mistreatment in the Workplace: The Interface and Impact of General Incivility and Sexual Harassment, 90 Journal of Applied Psychology 483 (2005).

[xviii] Chelsea R. Willness, et. al, A Meta-Analysis of the Antecedents and Consequences of Workplace Sexual Harassment, 60 Personnel Psychology 127 (2007).

[xix] A good collection of the types of behaviors identified as problematic is included in the Florida Bar’s 2016 Survey on Gender Equality in the Legal Profession, located at https://www-media.floridabar.org/uploads/2017/04/2016-Survey-on-Gender-Equality-in-the-Legal-Profession.pdf

[xx] See, e.g., Heather McLaughlin, Who’s Harassed, and How? Harvard Business Review (January 31, 2018) located at https://hbr.org/2018/01/whos-harassed-and-how; Audrey Carlsen, et. al, #MeToo Brought Down 201 Powerful Men.  Nearly Half of Their Replacements are Women, New York Times (October 29, 2018) located at https://www.nytimes.com/interactive/2018/10/23/us/metoo-replacements.html.

[xxi] EEOC Report, pp. 25-28.

[xxii] Mindy Bergman, et al., The (Un)Reasonableness of Reporting: Antecedents and Consequences of Reporting Sexual Harassment, 87(2) J. Applied Psychology 230 (2002).

[xxiii] Some studies have been done in the past, but the author could not locate any recent studies or surveys.  In the current #MeToo climate, such a study would be useful in developing solutions.

[xxiv] Bobbi K. Dominick, Preventing Harassment in a #MeToo World, SHRM Publishing (2018)(detailing specific actions to take in all areas of prevention); ABA Commission on Women in the Profession, Zero Tolerance: Best Practices for Combating Sex-Based Harassment inthe Legal Profession (2018),and ToolKit located athttps://www.americanbar.org/groups/diversity/women/initiatives_awards/the-zero-tolerance-program-toolkit/zero_tolerance/; see also EEOC Report noted above.

[xxv] Chief Justice Roger Burdick, Letter to Diane Minnich, Executive Director, ISB, dated September 6, 2018.

[xxvi] Zero Tolerance, pp. 28-30. See also note xviii above for additional resources.

By McKay Cunningham

Lawyers and non-lawyers alike revere the Constitution as a document that embodies the nation’s greatest values. It has been called America’s civic religion. In times of political discord, the Constitution unifies those with opposing views because all agree that the Constitution is the proper legal authority. The disagreement is not whether the Constitution should apply, but how it should be interpreted.

Open-ended phrases in the Constitution like the promise of “equal protection” and “due process” have allowed recognition of several civil liberties not expressly included in the document. The Ninth Amendment recognizes that rights not listed in the Constitution are not necessarily denied: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[i]

But how does the Court identify non-enumerated rights, and how does the Court determine who is protected and who is not?

In large part, it is a question of interpretation. If the Constitution is interpreted as a static document that only reflects the intent of those who drafted it, then the document rejects values of equality, liberty, and inclusion. If the Constitution is interpreted as a “living document” that reflects the values identified in the Preamble, including liberty, democratic governance, justice, and the promotion of general welfare, the Constitution is truly an egalitarian document.

The original Constitution

The Constitution, from the perspective of those who wrote it, failed to embrace or advance diversity. It centralized power in the dominant demographic of the time, white men. Only white men could meaningfully participate in the three branches of government because voting was reserved for white men alone. And voting, in a representational democracy, is the currency of power.

Not only did the framers reserve power for themselves, they expressly denied it for others. Several provisions in the original Constitution institutionalized the nation’s greatest tragedy. Article I, §9 prevented Congress from stopping the importation of slaves until 1808. Article V barred that same provision from being altered by constitutional amendment. And Article IV, §2 – the Fugitive Slave Clause – required the return of escaped slaves, specifically invalidating laws in free states that would have protected them.

It is tempting to lay the blame for slavery at the feet of the southern states, whose economy depended on slave labor and who would not have ratified a Constitution without express protections for slavery. But many of the most influential drafters at the Constitutional Convention were slave owners, including George Washington, John Rutledge, and James Madison – the last of whom is regularly identified as the “Father of the Constitution.”

The framers’ intent

Two-hundred and thirty years ago, when only white men could vote, there were no automobiles, web sites, cell phones – or any phones for that matter. Religious practice was primarily Protestant and more homogeneous than religious practices in America today. Back then, for example, Catholics endured virile anti-Catholic bias. In the late 18th Century, nothing protected homosexuals from state-supported discrimination. Women could not vote, or work in several professions, or own property in many instances.

Interpreting the Constitution by relying on the intent of those who drafted it has resulted in exclusion and oppression of people of color, women, atheists, homosexuals, and a raft of other “non-traditional” communities. The framers, for all their wisdom, were flawed – as is every generation – and a formalistic devotion to “framer intent” when interpreting the Constitution damns society to repeat those flaws.

Framers’ intent applied to race

Nevertheless, many politicians and jurists have interpreted the Constitution by relying on the framers’ intent and the society of 1780’s America. This construct, this devotion to the framers’ intent when interpreting the Constitution, has been embraced by the Supreme Court at times throughout our constitutional jurisprudence.

1. Framers’ intent applied to race before the 14^th Amendment.

In Prigg v. Pennsylvania, the Court upheld the Fugitive Slave Clause: “[W]e have not the slightest hesitation in holding that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every state in the Union, to seize and recapture his slave.”[ii]

Fifteen years later, in Dred Scott v. Sandford, a former slave petitioned for freedom after his owner died in a free state. The Court denied Scott’s plea, relying on the framers’ original intent. The Court said that those imported as slaves “were not intended to be included under the word ‘citizens’ in the Constitution . . . . On the contrary, they were at that time considered as a subordinate and inferior class of beings . . . .”[iii]

2. Framers’ intent applied to race after the 14^th Amendment.

The Civil War and the ratification of the 13^th, 14^th, and 15^th Amendments ended slavery and expanded the right to vote despite “race, color, or previous condition of servitude.”[iv] The 14th Amendment targeted states that had racially discriminatory laws, promising “the equal protection of the laws” to all persons. “Equal protection” is an ambiguous phrase and could be understood to include a wide variety of people within its scope. But time and again, the Court confronted that ambiguity by adhering to the framers’ intent. To understand what the framers had in mind, the Court often inspected the context and culture of the nation at the time the language was drafted.

In 1868, when the 14th Amendment was ratified, society was racially segregated in the north and the south. Every southern state had enacted laws separating the races in virtually every aspect of life, from schools to bathrooms, to water fountains. When state segregation laws were challenged as violating the Equal Protection Clause, the Court initially upheld racial segregation and pointed to the framers of the 14th Amendment as justification for doing so. According to the Court in Plessy v. Ferguson, “Equal Protection” only meant that states cannot draft laws that intentionally harm racial minorities.[v] Requiring racial separation, by contrast, was fine because that was the norm in 1868, when the framers wrote the 14th Amendment.

Framers’ intent today

At least five current Supreme Court Justices interpret the Constitution by looking to the framers’ intent. The late Justice Antonin Scalia, for example, said that the 14th Amendment and the Equal Protection Clause do not protect women: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant.”[vi]

Justice Thomas also relies on the framers’ intent when interpreting the Constitution. In a 1995 decision, Thomas wrote that when interpreting the Constitution, “we must be guided by their original meaning, for the Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now.”[vii]

 Justices Thomas and Scalia are likely correct when they assert that the framers intended no protections for women when the Constitution was adopted nor when the 14th Amendment was adopted. Four years after the 14th Amendment was adopted, the Court upheld a law barring women from becoming lawyers.[viii] Two years after that, the Court upheld a state law that allowed only men to vote.[ix] Even after WWII, the Court continued to allow gender discrimination based largely on the notion that the Constitution must be interpreted through the eyes of the framers. In a 1948 decision, the Court upheld a law that prevented women from bartending unless the woman was the wife or daughter of a male who owned the bar.[x]

If the Equal Protection Clause must be interpreted through an 1868 lens, as Justices Thomas and Scalia posit, then Equal Protection means nothing for women, homosexuals, children born out of wedlock, non-citizens or anyone other than people of color.

Framers’ intent and inequality

Reading the Constitution as a static document, as a snapshot of value judgments popular in 1789 (Constitution), 1791 (Bill of Rights), or 1868 (14th Amendment), entrenches inequities. It is not surprising that no woman has been elected president and only four have served on the Supreme Court, all of whom were appointed after 1980. It is not surprising that over 95 percent of executive positions at Fortune 500 companies are still held by men and that women’s wages are typically 75 percent of men’s wages.

And it is not surprising that one in three African American children are born into poverty, that much less is spent on the average African American’s elementary and secondary schooling than on the average white child’s, and that at every age, African Americans have a higher mortality rate than whites.

Other Interpretations

The Supreme Court does not always rely on the framers when interpreting the Constitution. Some of the most revered Supreme Court cases are those that extend fundamental rights and civil liberties beyond what they were in 1789 or 1868. In Brown v. Board of Education, the Court rejected the rationale relied upon in Plessy v. Ferguson and invalidated racial segregation in public schools.[xi]

In Loving v. Virginia, the Supreme Court struck Virginia’s law criminalizing interracial marriage. It did so, despite the framers’ intent. Laws barring interracial marriage were common in 1868. Indeed, Virginia argued as much, positing that “the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally . . . .”[xii] The Court could strike anti-miscegenation laws as unconstitutional only by ignoring the Framers’ intent.

Likewise, no protections existed in the late eighteenth century for consensual homosexual activity. Nevertheless, the Court recognized such constitutional protections in Lawrence v. Texas.[xiii] In a series of cases, the Court has extended constitutional protection for gay marriage, even though such protections would have been foreign to the framers.

An inclusive interpretation

If the Constitution is not interpreted by the framers’ intent, how should it be interpreted? Jurists often gravitate to a theory grounded in the framers’ intent because it is understandable. Several canons of interpretation require lawyers to divine legislative intent when interpreting statutes. Doesn’t it make sense to do the same with the Constitution? Moreover, if originalism and the framers’ intent should not drive constitutional interpretation, what should?

When determining whether to recognize a new fundamental right stemming from the open-ended Due Process Clause, originalists aver that fundamental rights are limited to those liberties explicitly stated in the text or clearly intended by the framers. Others ask whether the claimed fundamental right is deeply entrenched in the history and tradition of the nation. There are many varieties of constitutional interpretation, all with benefits and detriments.

At a minimum, however, the Constitution should not be a static snapshot of the 1780s. It should be a “living” document that accounts for the inevitability of societal and cultural evolution. All of nature reflects the inevitability of change; our governing document should do so as well. But what values guide a flexible interpretation? One of the most overlooked provisions in the Constitution provides insight, the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.[xiv]

The first three words denote the genesis of power in the people, not the local, state, or federal government, and they illustrate that the government serves the people, not the other way around. The core values that follow include democratic government, effective government, justice, and liberty. The exhortation to “form a more perfect Union” recognizes the need to change and the capacity to acknowledge protections for marginalized persons who have not been historically protected.     The call to ensure justice and protect liberty articulates the basic values of the Constitution and should be the interpretational touchstones embraced by those charged with its interpretation. While Americans value tradition and origin, we are not constrained by them. Our governing and most revered legal document should reflect the same.

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[i] U.S. Const. amend. IX.

[ii] Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 540–541 (1842).

[iii] Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 404–405 (1857) (emphases added).

[iv] U.S. Const. amend XV.

[v] Plessy v. Ferguson, 163 U.S. 537 (1896).

[vi] The Originalist, California Lawyer, January 2011, https://ww2.callawyer.com/clstory.cfm?eid=913358.

[vii] McIntyre v. Ohio Elections Commission, 514 U.S. 334, 359 (1995) (Thomas, J., concurring in the judgment).

[viii] Bradwell v. The State, 83 U.S. 130 (1872).

[ix] Minor v. Happersett 88 U.S. (21 Wall.) 162 (1874).

[x] Goesaert v. Cleary, 335 U.S. 464 (1948).

[xi] Brown v. Board of Education, 347 U.S. 483 (1954).

[xii] Loving vs. Virginia, 388 U.S. 1, 7–8 (1967).

[xiii] Lawrence v. Texas 539 U.S. 558 (2003).

[xiv] U.S. Const. pmbl.

By Brenda M. Bauges and Tenielle Fordyce-Ruff

Bias in hiring used to be overt.  For instance, during her keynote address at the Idaho Women Lawyers 2019 Gala, the Honorable Mary M. Schroeder, Senior Judge of the United States Court of Appeals for the Ninth Circuit, shared her experiences trying to find a job after moving to Phoenix, Arizona, in the 1960s.  She suffered through several meetings where she was told that the firm wouldn’t hire a female attorney.  Then, after a meeting with a male partner who was willing to hire her, she was once again told that she didn’t have a job because another partner refused to work with a woman attorney.

While these types of incidents hopefully don’t happen today, diverse candidates can still face implicit bias in the hiring process.  To help you avoid this type of bias, we will first explain why a lack of diversity hurts workplaces, what gatekeeper bias in the hiring process is, and the law governing employment in Idaho. We then offer some suggested ways to help any employer avoid gatekeeper bias.

The Benefits of Diversity in the Workplace

Increasing diversity is a smart business decision.[i] Having employees with different personalities, at various stages of their careers, as well as the more common markers of diversity like gender, race, ethnicity, cultural background, and sexual orientation improves workplace performance.[ii] Studies as far back as 2006 have heralded the benefits of diversity in the workplace.[iii]  In the specific context of gender diversity, noted benefits include more collaborative leadership styles that benefit boardroom dynamics, increasing mentorship and coaching of employees and economic outperformance of competitors. More recent articles continue to tout the benefits of the diversity of all types.

For instance, working with diverse people makes everyone smarter because it challenges the brain to overcome stale thinking by focusing more on facts and processing facts more carefully; this, in turn, leads to more innovation.[iv]  In addition to driving innovation, diversity at a workplace makes recruiting easier, avoids high turnover among employees, and increases employee productivity.[v] Finally, diversity in the workplace can open the employer to a deeper talent pool and to a wider market.[vi]

What is Gatekeeper Bias?

When we think of bias, we often think of discrimination.  This bias or prejudice involves “dislike, hostility, or unjust behavior deriving from preconceived and unfounded opinions.”[vii]  We also tend to link bias with negative emotions.[viii]  Some forms of bias, however, come from positive feelings, such as in-group favoritism.[ix]  In other words, some forms of bias come from positive feelings toward an individual that result in “significant discriminatory results from differential helping or favoring.”[x]  Additionally, while some bias is overt and conscious, oftentimes bias is the result of implicitly held beliefs of which a person is completely unaware.

In the context of employment decisions, gatekeeper bias happens when an employment decision is based on the decision maker’s perceived preferences of the existing employers or co-workers with whom the new employee would be working.[xi]  Gatekeeper bias—allowing the perceived bias of co-workers to influence employment decisions—happens even when the gatekeeper herself believes in the importance of diversity.[xii]  In fact, gatekeepers may not even be aware that these considerations are factoring into the hiring, or other employment, decision.  It is not uncommon for such decisions to be considered simply a commentary on who best “fits” the company culture or mission.  In other words, even a commitment to diversity doesn’t necessarily prevent employers from accommodating biases in hiring decisions.

This gatekeeping bias happens because employers face a challenge with each hire: they must match unknown applicants to well-known, experience-based requirements.[xiii]  Thus, each new hire represents a risk to the employer, and the persons charged with hiring decisions often allow emotions, including the desire to avoid risk and reproduce the current situation with a new employee, to creep in.[xiv]  This isn’t always bad, but these emotions can mean certain candidates are excluded from consideration based on a gatekeeper’s perception that existing employees have a bias, though that might not be the word used, against the candidate’s social characteristics, which could include race, gender, or ethnicity.[xv]

Idaho and Federal Employment Law

Gatekeeper bias is especially concerning not only because diversity in the workplace makes good business sense, but also because it could open up employers to legal liability.

The Idaho Human Rights Act prohibits discrimination in employment based on race, color, religion, sex, national origin, disability, and age.[xvi]  Employment decisions that cannot be based on these protected classes include hiring, termination, compensation, promotions and discipline, and other conditions or privileges of employment.[xvii] The Idaho Human Rights Act applies to employers with five or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, a person who as a contractor or subcontractor is furnishing material or performing work for the state, any agency of or any governmental entity within the state, and any agent of such employer.[xviii]  In addition to the Idaho Human Rights Act,  some local governments have enacted legislation seeking to extend employment anti-discrimination protections explicitly on the basis of sexual orientation and gender identity/expression.[xix]

Like the Idaho Human Rights Act, Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on race, color, religion, sex, and national origin.[xx]  Title VII similarly covers decisions regarding hiring, termination, compensation, promotions and discipline, and other terms and conditions of employment.[xxi]  Covered employers include those “affecting commerce” with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, any agent of such employer, and various federal governmental entities.[xxii] In addition to the Civil Rights Act, a patchwork of other federal laws prohibit discrimination based on various characteristics in the employment context including on the basis of a disability, age, genetic information, and others.[xxiii]

Tips to Avoid Gatekeeper Bias

We have extolled the virtues of diversity in the workplace; uncovered for you the, sometimes subconscious and unintentional, role of gatekeeper bias as an obstacle to achieving such diversity; and illustrated how this phenomenon can open up employers to legal issues in light of prevailing anti-discrimination laws.  The question remains, especially if gatekeeper bias is sometimes subconscious and unintentional, how does your or your client’s organization prevent gatekeeper bias from happening? Here is some guidance and some suggestions on how to prevent gatekeeper bias.

First, be aware of your implicit biases.[xxiv]  We all have them.  Unfortunately, too often we do not want to admit, to ourselves or others, that we categorize people based on their appearances, history, or yes, specific culture-conforming attributes.  We do not want to admit that we feel more comfortable with people who act, look, and think like us.  It is time to get over that.  Until we do, we will never win the battle against implicit bias.  Have your hiring managers take implicit bias tests or training.[xxv]

Second, create definable rubrics for your hiring process.[xxvi]  Systemizing your hiring process will go a long way towards ensuring your hiring process results in the most qualified, successful candidate.  For example, keep your job description handy and only ask questions related to job-related duties.  Consider asking the same questions to all candidates.  Assign numbers for candidate answers with “1” being unable/incompetent to complete the required task and “10” being perfectly able/competent to complete the required task.

Third, be very careful of assigning too much weight to “likability,” “fit,” or “gut feeling.” These feelings could just be implicit biases in disguise.  Consider, instead, including another element to your hiring rubric for personal interaction or ability to work well in a team setting, if those are truly important components of the job at issue.  Then make sure you rate the candidates based on the definite qualities in the rubric.

Finally, diversify your hiring panel.  Have multiple employees in your office responsible for giving input on job candidates.  You can have the candidates meet one-on-one with multiple employees, or in a group setting.  Regardless of the format, ensure that the hiring panel includes different genders, cultures, and ages.  Diversifying your panel does not mean that every member will have an equal say in who gets hired, but it does ensure that the feedback that goes into the decision is varied and more likely to be free from individual bias.  This diversifying can also go a long way toward ensuring that a single person’s feelings about how a candidate’s co-workers would feel about him are based on explicit ratings or reactions, not biased assumptions.

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[i] David Rock & Heidi Grant, Why Diverse Teams are Smarter, Harvard Business Review, available at https://hbr.org/2016/11/why-diverse-teams-are-smarter (last visited April 9, 2019).

[ii] Rose Johnson, What Are the Advantages of a Diverse Workforce? Houston Chronical (Jan. 28, 2019), available at https://smallbusiness.chron.com/advantages-diverse-workforce-18780.html (last visited April 9, 2019) ; see also What Are the Benefits of Diversity in the Workplace? available at https://theundercoverrecruiter.com/benefits-diversity-workplace/ (last visited April 9, 2019).

[iii] Alexandra S. Grande, Caitlin Kling, & Brenda M. Bauges, Women on State Boards and Commissions: Is Idaho Where it Wants to Be?, The Advocate, Volume 59, No. 3/4, p. 30 (March/April 2016).

[iv] David Rock & Heidi Grant, Why Diverse Teams are Smarter, Harvard Business Review, available at https://hbr.org/2016/11/why-diverse-teams-are-smarter (last visited April 9, 2019).

[v] Sylvia Ann Hewlett, Melinda Marshall & Laura Sherbin, How Diversity Can Drive Innovation, Harvard Business Review (Dec. 2013) available at https://hbr.org/2013/12/how-diversity-can-drive-innovation (last visited April 9, 2019); Kim Abreu, The Myriad Benefits of Diversity in the Workforce, available at https://www.entrepreneur.com/article/240550 (last visited April 9, 2019); Rose Johnson, What Are the Advantages of a Diverse Workforce? Houston Chronical (Jan. 28, 2019), available at https://smallbusiness.chron.com/advantages-diverse-workforce-18780.html (last visited April 9, 2019.

[vi] Kim Abreu, The Myriad Benefits of Diversity in the Workforce, available at https://www.entrepreneur.com/article/240550 (last visited April 9, 2019).

[vii] Anthony G. Greenwalk & T homas F. Pettigrew, With Malice Toward None and Charity for Some: Ingroup Favoritism Enables Discrimination, American Psychologist 669 (October 2014).

[viii] Id. at 670.

[ix] Id.

[x] Id. at 672.

[xi] Bill Hathaway, Three Is Not Good Company for Women Job Seekers, Yale News (October 19, 2018), available at https://news.yale.edu/2018/10/19/three-not-good-company-women-job-seekers?utm_source=YNemail&utm_medium=email&utm_campaign=yn-10-22-18 (last visited March 22, 2019).

[xii] See id. (noting that the gender biases of potential co-workers can influence hiring decisions even when the gatekeeper is committed to gender diversity).

[xiii] Emotionalizing Organizations and Organizing Emotions, 86 (Barbara Sieben ed., 2010).

[xiv] Id. at 87, 100.

[xv] Id. at 100.

[xvi] Idaho Code §§ 67-5909. 

[xvii] Id.

[xviii] Idaho Code § 67-5902(6). 

[xix] See e.g. Boise City Ordinance Title 5, Chapter 15, available at https://www.sterlingcodifiers.com/codebook/index.php?book_id=1079(last visited April 9, 2019).

[xx] 42 U.S.C. § 2000e-2. 

[xxi] Id.

[xxii] 42 U.S.C. § 2000e(b); 42 U.S.C. § 2000e-16.

[xxiii] See e.g. Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; Americans with Disabilities Act Amendments Act; Rehabilitation Act, 29 U.S.C. § 791 et seq.; Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq.; Genetic Information Nondiscrimination Act, 42 U.S.C. § 2000ff et seq.; Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4311.

[xxiv] See Rebecca Knight, 7 Practical Ways to Reduce Bias in Your Hiring Process, Society for Human Resource Management (April 19, 2018), available at https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/7-practical-ways-to-reduce-bias-in-your-hiring-process.aspx (last visited March 29, 2019).

[xxv] Project Implicit, https://implicit.harvard.edu/implicit/takeatest.html (last visited March 29, 2019).

[xxvi] See Rebecca Knight, 7 Practical Ways to Reduce Bias in Your Hiring Process, Society for Human Resource Management (April 19, 2018), available at https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/7-practical-ways-to-reduce-bias-in-your-hiring-process.aspx (last visited March 29, 2019).

By Mary E. Shea

Family Law Forever Changed

In the summer of 2015, we watched celebrations nationwide when the United States Supreme Court fundamentally changed the American legal landscape by holding that the Fourteenth Amendment mandates equal legal marriage rights for same-sex couples.[i]  This watershed ruling means that all 50 states must allow legal marriage for same-sex couples and all 50 states must recognize legal same-sex marriages that have been solemnized elsewhere.

Although this decision was celebrated widely as settling the question once and for all, by the time this opinion was issued on June 30, 2015, most states, including Idaho, had already reached the same conclusion legislatively, or by binding federal court decision.[ii]  What we have learned in the last few years is that granting same-sex couples the legal right to marry did not really create much controversy in applying marriage and divorce laws state by state.  This article will provide a brief overview of the family law issues the legal system is grappling with in the wake of Obergerfell.

Constitutional Protections for Alternative Families

Courts throughout the country are still sorting out whether to treat same-sex or transgendered persons as part of a quasi-suspect class so that discriminatory laws should be subject to heightened scrutiny, similar to gender.[iii] To survive, laws that discriminate against a quasi-suspect class must be substantially related to an important government interest. Discriminatory laws can survive intermediate scrutiny if they have a very good reason to exist.[iv]

One federal court has held recently that sexual identity should be considered a true suspect class similar to race. [v]  This means laws based on sexual identity would have to survive strict scrutiny.  Applying strict scrutiny to these laws would likely be fatal because such laws rarely survive strict scrutiny.

In Obergerfell and the related family law cases, the Court so far has focused on the important and fundamental nature of the rights denied, rather than on the legal status of the people who have been denied the rights.  That analysis, in the marriage context, has been enough.[vi]  State laws restricting the right have been struck down consistently, such that even felons facing lifetime imprisonment must be given the right to marry.[vii]

Parenting Rights Have Become More Complex

However settled marital rights are, parenting rights are a different story.   Same-sex couples, today, cannot have what the law has indelicately but traditionally referred to as “natural” children except through the use of Assisted Reproductive Technology (“ART”).  They can adopt children in all 50 states if they are married, and in most states even if they are not married, although that has only been true in very recent history.[viii]

Idaho adoption laws have never prevented adoption based on sexual preference or marriage and Idaho statutes have never required termination of a natural or legal parent’s rights in order to complete an adoption. Although never prevented, there was no Idaho case holding such until 2014.[ix]  If a same-sex couple wishes to have children, only one of the spouses will be biologically related to the child, or neither of the partners will be biologically related to the child.[x]   Courts and legislatures throughout the country, including here in Idaho, in light of the obligation to recognize same-sex marriage on the same legal terms as heterosexual marriage, are still working through how to redefine legal parenthood as a result of that biological reality.

The United States Supreme Court has clarified same-sex parenting rights in two important cases post-Obergerfell, both decided per curium without oral argument.  In the first case, a lesbian couple together for 16 years conceived three children through ART, with one of the partners serving as the biological mother.  With the full knowledge and consent of the biological mother, the same-sex partner adopted all three children and they were raised together as a family.  The family moved to Alabama and subsequently, the partners split up.  The Supreme Court unanimously reversed Alabama’s attempt to relitigate the legitimacy of the Georgia adoption.[xi]

In Pavan v. Smith, two same-sex married couples who conceived using artificial insemination sued Arkansas, because Arkansas would permit only the birth mother to place her name on the birth certificate.  The Arkansas statutes, applying the marriage presumption, permitted husbands of birth mothers to be placed on birth certificates for children conceived the same way.  The United States Supreme Court held that this constituted unlawful discrimination against same-sex couples, stating that “the Constitution entitles same-sex couples to civil marriage on the same terms and conditions as opposite-sex couples.”[xii]

Post-Obergerfell, state courts deciding this issue have all agreed that the gendered marital presumption has to be applied in a non-gendered way, and they have so far given legal parenting rights and responsibilities to non-biological married same-sex parents.  In a recent Hawaii case, the non-biological parent was not permitted to rebut the legal parenting presumption in order to avoid paying child support.  The Hawaii court reasoned that if the Uniform Parenting Act is applied in a gender-neutral way, a legally presumed heterosexual parent who is later determined not to be the biological parent could still be made to pay child support, which applies equally to a same-sex partner as the intended parent of the child. [xiii]  The Idaho case on this issue is also interesting because in that case the lesbian couple never married.  The evidence was uncontroverted, however, that they would have been married when their child was born in 2012 if legal marriage had been available to them in Idaho at that time.[xiv]

Married Same-Sex Couples Who Divorce May Not Opt Out of Parental Obligations

Two of these cases, the Mississippi and the Arizona cases, also raise an interesting estoppel argument to prevent a biological mother from “revoking” her consent to consider her partner the legal parent of the child they conceived and raised together.  Equitable estoppel is a legal principle known well to the family law courts; it has been applied successfully in Idaho on several occasions to prevent parents from “changing their minds” about who the legal parent should be.[xv]  It has a logical place in this context.  A parenting relationship should not be severed simply because a biologically related parent no longer wants the company of their ex-partner.  If parents have allowed the parental bond with a child to form in a legal way, they should not be able to retract that relationship simply and only because they have the genetic advantage.

There is a case on appeal in Idaho, where a Magistrate Court denied legal parenting rights to a married same-sex parent for a child conceived and born during the marriage.  The trial court held that the marital presumption was rebutted by the non-biological relationship.  This will be an important case for Idaho practitioners to watch.

Unmarried Families Should Perfect Their Parenting Rights

The LGBTQ families in the most peril concerning parental rights are the co-parents who never marry and never adopt.  In 2016, the Idaho Supreme Court refused to allow an unmarried, same-sex co-parent to assert any legal parenting rights because there is no procedural vehicle for her to assert them in Idaho.  The biological mother did not sign a Voluntary Acknowledgment of Paternity at birth, which could have created a legal parenting presumption even without marriage.[xvi]  The parents were advised incorrectly (based on pre-2014 assumptions) that as a same-sex couple, the non-biologically related mother could not adopt.

Idaho recognizes an “equitable parenting” rule, whereby a person who has had a “parent-like” relationship with a child can gain legal parent-like rights, such as custody or visitation.[xvii]  In this same-sex parenting case, the Idaho Supreme Court clarified the equitable parent rule to be a substantive rule, not a procedural rule:  it does not give a parent a vehicle into court.  Unless a putative parent has standing to get into court through a legal process involving child custody rights such as divorce, or guardianship, they cannot assert Stockwell equitable parenting rights.[xviii]

Unmarried co-parents in Idaho who are not biologically related to the child they are parenting should be advised to seek adoption because Idaho does not give them any path currently to legal parenthood in the event the co-parents split up and the “natural” parent no longer wishes to have them around.

Alternative Reproductive Technologies Raise Additional Legal Issues

Currently, Idaho regulates only Artificial Insemination (“AI”).  There are no statutes concerning surrogacy agreements, although there is a Supreme Court Administrative Order that assigns all such cases to one Judge, ostensibly to assure consistent application of the law to facts.  The Uniform Law Commission has updated its Uniform Parentage Act to consider recent developments in the law.[xix]  But, Idaho’s AI statute is based on a 1982 version of the Uniform Parentage Act and has not been updated.[xx]  The purpose seems to be to help determine legal parentage despite the biology concerns.

On its face, it discriminates between married and non-married parents, and it requires a physician’s assistance for a procedure that does not require medical intervention.   Most problematically, Idaho law does not account for the many other, more modern ways ART can now be used to create a life for partners outside of true genetic relationships, such as egg and embryo donation, whereby a birth mother may not even be genetically related to the infant she delivers.  The AI statute was at issue in the 2016 same-sex equitable parenting case discussed above, Doe v. Doe, but the legal challenge was not addressed when the Idaho Supreme Court held the plaintiff lacked standing to assert any rights.

Conclusion

Although it took several decades to accomplish, once same-sex marriage equality reached the tipping point, change came very rapidly.  Parenting was a very important part of the same-sex marriage decisions and debate.  Ultimately, the courts concluded that same-sex parents are no more or less able to raise children well than traditional heterosexual partnerships.  As the Sixth Circuit held, “Gay couples, no less than straight couples, are capable of raising children and providing stable families for them.  The quality of such relationships and the capacity to raise children within them turns not on sexual orientation, but on individual choices and individual commitment.”[xxi]  Parenting rights for the LGBTQ community is the next family law frontier.  Practitioners would be well served to keep up with this rapidly evolving area of the law.

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[i] Obergerfell v. Hodges, 576 U.S.    , 135 S.Ct. 2584 (2015).

[ii] Latta v. Otter, 19 F. Supp. 3d 1054, 1086-1087 (D. Idaho 2014), aff’d, 771 F.3d 456 (9th Cir. 2014), cert. denied, 135 S.Ct. 293 (2015) (permitting same sex marriage in Idaho since October 10, 2014).

[iii] In F.V. v. Baron, 286 F. Supp.3d 1131 (D. Idaho 2018), Idaho was required to permit gender changes for adults on birth certificates without showing such birth certificates as “amended.”  Idaho did not appeal, and Idaho has been permitting these changes on birth certificates since April 2018.  Following 9^th Circuit case law, transgender status was treated as a “quasi suspect” class.  This quasi suspect class analysis was also applied in the Idaho same sex marriage case, Latta v. Otter, footnote 2 supra.   The Supreme Court has recently granted certiorari in an employment law case that may settle the question of whether LBGQT belong to a protected class.

https://www.npr.org/2019/04/22/716010002/supreme-court-will-hear-cases-on-lgbtq-discrimination-protections-for-employees

[iv] E.g., Rostker v. Goldberg, 453 U.S. 57 (1981), which upheld the male-only draft rules.  The “legitimate reason” for discrimination was that women were not eligible for combat duty in the military.  Times have changed significantly, such that a federal judge recently has found the male only draft rules are discriminatory, because women are now eligible for combat positions.    National Coalition for Men, et al. v. Selective Service System, et al., Case No. 4:16-cv-03362, Doc. 87, USDC SD Tex, Houston Div., Filed February 22, 2019.

[v] Karnoski v. Trump, Case No. 2:17-cv-01297-MJP, Doc. 233, USDC WD Wash, Seattle, Filed April 13, 2018 (granting summary judgment against administration’s policies towards transgendered military). 

[vi] Justice Roberts’ dissent in the watershed decision striking down Section 3 of the Defense of Marriage Act (“DOMA”) specifically criticized the vagueness of the majority opinion’s analysis, authored by Justice Kennedy.  The Second Circuit had applied intermediate scrutiny to the federal law which on its face discriminated against even legally married same sex partners.  The Supreme Court did no more than mention the Second Circuit’s treatment of the issue, without offering any opinion at all as to whether it was correct or incorrect.  United States v. Windsor, 570 U.S. 744 (2013).  Justice Kennedy also wrote the Obergerfell decision two years later, and he again offered no clarification of whether sexual orientation should be treated as a quasi-suspect or suspect class.

[vii] Turner v. Safley, 482 U.S. 78, 95 (1987). 

[viii]On March 31, 2016, a federal court struck down Mississippi’s ban on same sex adoption – the very last state to hold out.  https://southernequality.org/wp-content/uploads/2016/03/Judge-Jordan-III-opinion-in-Campaign-for-Southern-Equality-v.-Mississippi-Department-of-Human-Services-et-al.pdf.  In VL v. EL, 136 S.Ct. 1017, 194 L.Ed.2d 29 (2016) (per curium), without hearing oral argument, SCOTUS unanimously overturned the Alabama Supreme Court’s decision which had refused to recognize a same sex adoption issued out of the Georgia courts.  The Court held that the Full Faith and Credit Clause demands that all states recognize adoptions from other states, and that lack of jurisdiction is the only basis for rejecting an out of state adoption.

[ix] Idaho Code § 16-1501 et. seq; In Re:  Adoption of Doe, 156 Idaho 345, 326 P.3d 347 (2014).

[x] There are some cutting edge ART technologies that may one day permit same sex couples to have genetically related children, but these are still very experimental, and there a lot of bio ethics questions to address. See, e.g.:

https://jme.bmj.com/content/44/12/835;

https://www.independent.co.uk/news/science/same-sex-couples-could-both-be-biological-parents-to-their-babies-with-new-genetic-technique-a6781401.html

[xi] V.L. v. E.L., 136 S.Ct. 1017, 194 L.Ed.2d 29 (2016) (per curium)

[xii] Pavan v. Smith, 137 S.Ct. 2075 (2017).

[xiii] LC v. MG and Child Support Enforcement, WL 4804417, Hawaii Supreme Court October 4, 2018; Strickland v. Day, 239 S.3d 486 (Miss. 2018); McGlaughlin v. Jones, 401 P.3d 492 (Ariz. 2017);  Ayala v. Armstrong, 2018 WL 3636524, Case 1:16-cv-00501-BLW Document 59 Filed 07/30/2018 (D. Idaho).Roe v. Patton, 2:15-cv-00253-DB, Doc. 15, USDC D. Utah, Central Div., Filed July 22, 2015.

[xiv] Ayala v. Armstrong, 2018 WL 3636524, Case 1:16-cv-00501-BLW Document 59 Filed 07/30/2018 (D. Idaho).

[xv] Gordon v. Hedrick, 159 Idaho 605, 364 P.3d 951 (2015)(mother not permitted to withdraw her signature on a VAP absent clear and convincing evidence of fraud, duress, or material mistake of fact); Doe v. Roe, 142 Idaho 202, 127 P.3d 105 (2005) (Father learned during divorce he was not the natural father of the child; biological dad was not permitted to rebut the legal marital presumption because he asserted his rights too late); Miller v. Miller, 96 Idaho 10, 523 P.2d 321 (1974) (Mother could not revisit divorce action to rebut husband’s legal paternity). 

[xvi] Idaho Code § 7-1119 et seq. It should be noted that there has not yet been a case in Idaho holding that unmarried same sex partners may use a VAP to establish presumptive legal parenting rights. 

[xvii] Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989).

[xviii] Doe v. Doe, 162 Idaho 254, 395 P.3d 1287 (2017)

[xix] https://www.uniformlaws.org/committees/community-home?CommunityKey=c4f37d2d-4d20-4be0-8256-22dd73af068f

[xx] I.C. § 39-5401 et. seq.

[xxi] DeBoer v. Snyder, 772 F.3d 388 (6^th Cir. 2014), rev’d, Obergerfell v. Hodges, 135 S.Ct. 2584 (2015).