We are told that “every person is presumed to know the law,”[i] and “ignorance of the law is not a defense.”[ii] Thus it seems reasonable to say that one goal of the law is that everyone knows what the law is. To aid in this goal, statutes are written so that people may understand them and predict how the law applies to the facts at hand. Similarly, when the common law is created by the courts and published, the rule of stare decisis means that the common law is not easily changed.[iii] The law should be predictable.

However, it often is not. Though “the responsibility of the legislative branch in drafting the laws that govern society . . . is weighty,”[iv] it is often the case that the intent of the legislature cannot be discerned through the plain language of a statute alone. Thus, we have the canons of construction to help ascertain the intent of the legislators who may have used ambiguous or unclear language.[v] But as legal theorist Karl Llewellyn has pointed out, any canon of construction may result in an interpretation of a statute that is the opposite of an interpretation resulting from an equally valid and applicable (if opposing) canon of construction.[vi] 

This is all to say that Idaho’s statutes are often open to interpretation, and there is no guarantee as to what interpretation will prevail. This article provides several examples of statutes where the presence of ambiguities and confusion mean that it is not clear how or which canons of construction will control the interpretation of the statute.

Lis Pendens: A Deadline to Record Notice for a Plaintiff but Not a Defendant?

Idaho Code § 5-505 addresses the legal requirement for a lis pendens. A lis pendens is a notice recorded in the chain of title to real property.[vii] As record notice, it warns all persons that the real property is the subject of litigation and establishes constructive notice that any interest acquired in the property during the suit is subject to the outcome.[viii]

The first part of Section 5-505 compels our interest:    

In an action affecting the title or the right of possession of real property, the plaintiff at the time of filing the complaint, and the defendant at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterward, may file for record with the recorder of the county in which the property or some part thereof is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action or defense, and a description of the property in that county affected thereby.[ix]

The Idaho Supreme Court interprets this language to “unambiguously require” a plaintiff to file a lis pendens for record “at the time of filing the complaint,” and a defendant “at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterward ….”[x]

In other words, a plaintiff must file a notice of a lis pendens of record when filing the complaint, but a defendant has a “broad time period within which to file a lis pendens” and can file any time after filing the answer.[xi] That’s great for a defendant but how does a plaintiff know what the law is? How is a plaintiff supposed to know what “at the time of filing the complaint” means in practice and when a lis pendens is timely filed of record?

Let’s set aside the modern-day logistics of filing a notice of lis pendens with the county recorder after filing a complaint.[xii] Did the legislature intend to set a deadline for a plaintiff to file a lis pendens? And if so, does “at the time of filing the complaint” mean at the exact same time? Does it mean the same day? What if it’s filed the next day or a few days later? We know of at least one district court that struck a plaintiff’s lis pendens because it was recorded 10 days after the complaint was filed.

The answer must lie in canons of construction. The Idaho Supreme Court’s interpretation of Section 5-505 is based on foundational canons:

The interpretation of a statute “must begin with the literal words of the statute; those words must be given their plain, usual, and ordinary meaning; and the statute must be construed as a whole. If the statute is not ambiguous, this Court does not construe it, but simply follows the law as written.”[xiii]

But there is also another canon the Supreme Court applied, albeit without direct mention—the last antecedent rule. Under this canon, a qualifying phrase should be interpreted to apply only to the last antecedent; the last antecedent is the word or phrase that immediately precedes the qualifying phrase.[xiv]

In Section 5-505, there are two antecedents preceding a qualifying phrase. The first antecedent is “the plaintiff at the time of filing the complaint,” and the last antecedent is “the defendant at the time of filing his answer, when affirmative relief is claimed in such answer.” The qualifying phrase is “or at any time afterward.” Consistent with the last antecedent rule, the Supreme Court found “or at any time afterward” modified the time for a defendant to file a lis pendens but not a plaintiff’s time to file.

But there is an important caveat to the last antecedent rule that aligns with the foundational canons of construction. A qualifying phrase applies to the last antecedent “unless the extension or inclusion is clearly required by the intent and meaning of the context or disclosed by an examination of the entire.”[xv] Punctuation also plays a role. A comma separating the last antecedent and the qualifying phase is evidence that a qualifying phrase is meant to apply to all antecedents.[xvi]

One can argue that reading Section 5-505 entirely and in context is evidence that the legislature did not intend to set a deadline for filing a lis pendens but simply meant to explain when a plaintiff and defendant “may file for record with the recorder of the county”—the plaintiff after filing a complaint and the defendant after filing an answer claiming affirmative relief. Plus the statute’s punctation suggests the qualifying phrase applies to both a plaintiff and defendant. Commas set off “or at any time afterward” from the rest of the sentence, indicating the qualifying phrase applies to both antecedents.

This interpretation of Section 5-505 would ensure that plaintiffs and defendants know what the law is. It would also accomplish the purpose of a lis pendens of simply giving notice to the world that a claim affects certain real property and establishing constructive notice. Yet different canons of constructions can be molded to support alternative interpretations and different versions of legislative intent. At times, they may also raise more questions than answers.

Service of Process: Rules or Statutes?

The general rules for service of a complaint and summons are set forth in the Idaho Rules of Civil Procedure, and they generally require personal service or service on an officer of an organization.[xvii] Once service is completed, the defendant has 21 days to appear and answer.[xviii] However, this is not the only service deadline. For example, Idaho Code § 41-334(1) states, “Duplicate copies of legal process against an insurer for whom the director is attorney, shall be served upon him either by a person competent to serve a summons or by registered or certified mail.” This is a rare circumstance of service being allowed by mail, but also of a statutorily designated agent.

Not only does the statute require service on the Director of Insurance, but it sets different rules for appearing and answering: “No proceedings shall be had against the insurer, and the insurer shall not be required to appear, plead, or answer until the expiration of thirty (30) days after the date of service upon the director.”[xix] Thus, both service and answering deadlines are different from a normal case. There are likely other specific statutory service and answering deadlines, but similar concerns will likely arise for all of them.

There is clearly a conflict between Idaho Rules of Civil Procedure 4 and 12 and Idaho Code § 41-334. So, which one prevails? The simple answer is that Idaho Code § 41-334 is the more specific (as it only applies to cases against insurers and does not apply generally), and therefore it applies.[xx] However, there is another canon of construction that applies for conflicting rules and statutes: if there is a conflict between a rule and a statute and the matter is procedural, the rule applies over the statute.[xxi] Thus, we have one canon of construction that says the statute applies, and one that says the rule applies. So, which is it?

Though these sorts of esoteric issues seem unlikely to arise, one of the authors recently had to file a motion to set aside a default that was filed in a case against an insurer when an answer was not filed within 21 days. Thus, these sorts of issues do matter. A simple potential solution is to include the words, “unless otherwise provided by statute . . .” at the beginning of any rule where a conflict may occur. For example, this is included in Rule 12(a), which resolves the timeline to answer. However, it does not appear that such language is contained in Rule 4, leaving the question of whether the rule or the statute applies for service purposes.

Treble Damage Statutes

There are a number of statutes that impose treble damages, depending on the circumstances of the case. Such trebling statutes include landlord/tenant claims[xxii] and claims under the Idaho Wage Claim Act.[xxiii] The difficulty with these trebling statutes is that, even though they may contain mandatory language, they may not be mandatory. This is a circumstance where mandatory statutory language is subject to case law restrictions.

For a statute that allows for an award beyond actual damages, the general rule in Idaho requires the court to decide “whether the award is intended to be a penalty or compensation. If it is intended to be a penalty, the statute’s requirements must be strictly construed; if it is intended to be compensatory, the statutory requirements are not to be strictly construed.”[xxiv] Stated another way, if the statute is a penalty, “as a prerequisite to an award of treble damages under [the statute], the district court must make a specific finding that [the act] was committed in a wilful, wanton or malicious manner.”[xxv] If there is no specific finding, the judgment is to be reversed.[xxvi]

The difficulty is knowing when a statute is punitive or compensatory. For example, historically the Idaho Supreme Court has said that trebling damages under the Wage Claim Act is compensatory, meaning no finding of malice is required.[xxvii] However, in 2020, the Supreme Court seems to have reversed course on this analysis:

Idaho’s wage claim act can be punitive in nature to the extent that it was designed to deter bad behavior on the part of an employer. As written, the statutes authorizing wage claim suits provide an incentive to employers to deal fairly with their employees, given the uneven bargaining positions between the two. . .. In other words, the remedy of trebled damages is designed to deter the very scenario the jury found to have occurred . . .[xxviii]

Thus, arguably the trebling is now punitive in nature, meaning that a finding of malice is required.

So how can you determine, based on the statute, whether an extra finding of malice is required? There are lots of potential canons of construction that could apply. For example, if the statute contains the word “must” or “shall”, it is mandatory in nature.[xxix] However, there does not seem to be any unifying thread between when trebling is automatic versus when a finding of malice is required and when a statute contains the words “must” or “shall.” There are plenty of situations where mandatory statutory language is subject to conditions precedent. For example, Idaho Code § 12-120(3) is mandatory where it applies[xxx], but before any attorney fee award happens, there must be a determination of prevailing party, reasonableness of fees must be determined, timing rules for memoranda of costs and fees must be complied with, etc.[xxxi] Thus, mandatory language isn’t going to guide.

Arguably, you could look at the legislative history to see if there is any guide there, but in most circumstances, the intent of the legislature is determined by the plain language of the statute (thus making the legislative history unavailable for construction purposes, absent an ambiguity). Unless the statute clearly says it is compensatory or punitive in nature, that canon of construction won’t help.

The same is true for looking at prior versions of the statute. For example, the Hawes case, quoted above, occurred after there was a substantial change to the language of the Idaho Wage Claim Act.[xxxii] However, Hawes does not mention the statutory changes at all. Thus, there really is no useful canon of construction that helps determine when trebling is automatic versus when a finding of malice is required. This is one of those situations where it depends upon case law. Thus, you just have to know that the rule possibly exists; and then look and see whether there is any case law that applies.

Automatically Adjusting Statutes

There are certain statutes that, without changing their language, automatically adjust each year. Two prominent examples are the rate of post-judgment interest under Idaho Code § 28-22-104, and the amount of the non-economic damages cap under Idaho Code § 6-1603. Both statutes create amounts that need to be calculated and adjusted each year, depending on certain outside factors. So far, so good.

The problem is what they don’t do. For example, judgments can remain outstanding for years, accruing interest. Idaho Code § 28-22-104 does not explain whether the rate of interest that accrues is the rate that exists at the time of judgment or the rate for each year the judgment is operative. The authors of this article have debated this issue and come to no conclusion as to which is correct.

Similarly, for the non-economic damages cap, the statute does not say which cap applies, whether it be the cap at the time of the accident, the time the complaint is filed, or when the judgment is entered. Idaho case law suggests that it is the cap that applies at the time the cause of action arose, but that particular case has a strange set of circumstances.[xxxiii] That case occurred at approximately the time the non-economic damages cap was reset, lowering the cap back down to $250,000.00.[xxxiv] The Supreme Court said that the cap that applied was the cap that existed at the time of the cause of action arose, which was when there was a higher cap. No analysis was provided as to timing in any other context, and so it could be that the Supreme Court merely gave the higher cap. However, currently, the cap is rising year after year, and so applying the earlier date would lower the amount of available damages under the cap.

What canons of construction apply to assist in understanding automatically adjusting statutes? The authors are not aware of any in Idaho that specifically address this issue. Thus, it goes back to basics: is the language plain, or is it ambiguous? If it is ambiguous, what guides are there to help interpret legislative intent? A practitioner could just go through the list of constructions, such as reviewing legislative history, reading statutes together that relate to the same subject, etc.[xxxv] Until the Idaho Supreme Court says what the rule is, there are only potential arguments, and not clear answers.

Conclusion

Though the purpose of the law is to give predictability, it sometimes does not. The canons of construction sometimes help us, sometimes confuse us, and sometimes fail us. That is why we have lawyers. Good luck.

Stephen Adams is a partner at Hawley Troxell in Boise. He likes to write too much and has opinions about too many things. He is currently president of the Idaho Association of Defense Counsel, past president of the Idaho State Bar Appellate Practice Section, and is in the running to be Supreme Mugwump of the International Confederation of Wizards. When not lawyering, he can be found not sleeping, because he has four kids between the ages of 9 and 16.  Accio comfy bed!

Christopher Pooser is the Office Managing Partner at Stoel Rives LLP’s Boise office, where he maintains a state and federal appellate practice. He is the co-founder and a past president of the Idaho State Bar Appellate Practice Section and a fellow of the American Academy of Appellate Lawyers.

[i] Anderson v. Ferguson-Bach Sheep Co., 12 Idaho 418, 422, 86 P. 41, 42 (1906).

[ii] State v. Fox, 124 Idaho 924, 926, 866 P.2d 181, 183 (1993).

[iii] Thompson v. Burley Inn, Inc., 173 Idaho 637, 646, 546 P.3d 649, 658 (2024).

[iv] State v. Fox, 124 Idaho 924, 927, 866 P.2d 181, 184 (1993) (Bistline, J., dissenting)

[v] See In re Doe, 156 Idaho 345, 349, 326 P.3d 347, 351 (2014).

[vi] Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes are to be Construed, 3 Vand. L. Rev. 395 (1950).

[vii] Montierth v. Dorssers-Thomsen, 173 Idaho 100, 112, 539 P.3d 578, 590 (2023).

[viii] Id. at 112-13, 539 P.3d at 590-91.

[ix] Idaho Code § 5-505 (emphasis added).

[x] Montierth, 173 Idaho at 112 ,539 P.3d at 590.

[xi] Id.

[xii] With electronic filing and delays in receiving acknowledgement and return of a complaint, it can be difficult to immediately file a notice of lis pendens for record when the complaint is filed.

[xiii] Id. (quoting Verska v. Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 893, 265 P.3d 502, 506 (2011)).

[xiv] See BHC Intermountain Hosp., Inc. v. Ada County, 150 Idaho 93, 96, 244 P.3d 237, 240 (2010); State v. Troughton, 126 Idaho 406, 411, 884 P.2d 419, 424 (1994).

[xv] Troughton, 126 Idaho at 411, 884 P.2d at 424 (citation omitted).

[xvi] Ada County Prosecuting Attorney v. 2007 Legendary Motorcycle, 154 Idaho 351, 354, 298 P.3d 245, 249 (2013) (“Evidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma.”) (citation omitted).

[xvii] I.R.C.P. 4(c).

[xviii] I.R.C.P. 12(a)(1).

[xix] Idaho Code § 41-334(3).

[xx] Elgee v. Ret. Bd. of Pub. Emp. Ret. Sys. of Idaho, 169 Idaho 34, 41, 490 P.3d 1142, 1149 (2021).

[xxi] State v. Abdullah, 158 Idaho 386, 483, 348 P.3d 1, 98 (2015).

[xxii] Idaho Code § 6-317

[xxiii] Idaho Code § 45-615(2).

[xxiv] Barth v. Canyon Cty., 128 Idaho 707, 712, 918 P.2d 576, 581 (1996).

[xxv] Watts v. Krebs, 131 Idaho 616, 623, 962 P.2d 387, 394 (1998).

[xxvi] Pearson v. Harper, 87 Idaho 245, 258-59, 392 P.2d 687, 694 (1964).

[xxvii] See, e.g., Goff v. H.J.H. Co., 95 Idaho 837, 839, 521 P.2d 661, 663 (1974); Gilbert v. Moore, 108 Idaho 165, 169, 697 P.2d 1179, 1183 (1985); Barth v. Canyon Cty., 128 Idaho 707, 712, 918 P.2d 576, 581 (1996).

[xxviii] Hawes v. W. Pac. Timber, LLC, 167 Idaho 896, 916-17, 477 P.3d 950, 970-71 (2020).

[xxix] Rife v. Long, 127 Idaho 841, 848, 908 P.2d 143, 150 (1995).

[xxx] P.O. Ventures, Inc. v. Loucks Fam. Irrevocable Tr., 144 Idaho 233, 237, 159 P.3d 870, 874 (2007).

[xxxi] I.R.C.P. 54(d) and (e).

[xxxii] 1999 Idaho Sess. Laws ch. 51 (S.B. 1034).

[xxxiii] Horner v. Sani-Top, Inc., 143 Idaho 230, 234, 141 P.3d 1099, 1103 (2006).

[xxxiv] Id. at 234 (n. 1), 141 P.3d at 1103 (n. 1).

[xxxv] Stephen Adams, Listing the Canons of Construction, 59 Advocate 48 (2016).