FEDERATED PUBLICATIONS v. BUSINESS REVIEW

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Docket Number

No. 34343.

Attorney(S)

Holland Hart, LLP, Boise, for appellant. B. Newal Squyres argued. Evans Keane, LLP, Boise, for respondent. David W. Gratton argued. Givens Pursley, LLP, Boise, amicus curiae.

Judges

W. JONES, Justice.

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Smart Summary

Factual and Procedural Background

This case arises from a request by Federated Publications, Inc. (doing business as The Idaho Statesman) for a judicial declaration regarding the applicability of Idaho Code Section 60-106. Federated Publications sought a ruling that the statute applies to all legal notices, advertisements, or publications required or provided by Idaho law, whether by government or private entities, and that such notices must be published in the newspaper with the largest paid circulation within the governmental entity's boundaries where the notice is required. Idaho Business Review (IBR) appealed the district court’s decision, arguing that the court erred in holding that the statute’s 1994 amendment did not violate the subject-in-title requirement of Article III § 16 of the Idaho Constitution. The appeal was taken from the Fourth Judicial District, Ada County, before Judge Deborah A. Bail.

Legal Issues Presented

Whether Idaho Code § 60-106 applies to legal notices published by both governmental and non-governmental entities.
Whether the 1994 amendment to Idaho Code § 60-106 complies with the subject-in-title requirement of Article III § 16 of the Idaho Constitution.
Whether the title of the 1994 amendatory act sufficiently describes the subject matter of the statute as required by Article III § 16.
Whether attorney's fees are appropriate in this case.

Arguments of the Parties

Appellant's Arguments (Idaho Business Review)

The district court erred in holding that the statute’s interpretation did not violate the subject-in-title requirement of Idaho’s Constitution.
The amendment’s title improperly limits the statute to governmental entities, but the statute’s language extends to private (non-governmental) entities, thus violating the constitutional requirement.
Argued that Idaho Code § 60-106’s application to non-governmental entities violates Article III § 16.
Asserted that the constitutionality of § 60-106 was properly raised below as a defense.

Respondent's Arguments (Federated Publications, Inc.)

Claimed the statute applies generally and that the title’s particularized reference to governmental entities does not limit the statute’s scope.
Argued that the title may be consulted only if the statute is ambiguous.
Contended that challenges to a statute’s title must be made contemporaneously with enactment to prevent fraud, and thus are inappropriate long after passage.
Maintained that this case involves a request for declaratory judgment on statutory interpretation, not a direct constitutional challenge.
Asserted that IBR’s constitutional defense should be barred as it was not a request for affirmative relief but a defense.
Claimed that a title must go "greatly beyond" the subject of the statute for a constitutional violation to exist.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hammond v. Bingham, 83 Idaho 314, 362 P.2d 1078 (1961)	Amendatory act titles must be germane to the subject of the original act; if a title particularizes some but not all changes, the act is limited to the matters specified and anything beyond is void.	Used to determine that the title of the 1994 amendment was particularized to governmental entities and did not cover non-governmental entities, rendering that portion of the statute void as to non-governmental entities.
Idaho Gold Dredging Co. v. Balderston, 58 Idaho 692, 78 P.2d 105 (1938)	A general statement of the subject in the title is sufficient if it has a reasonable tendency to accomplish the act’s purpose.	Referenced regarding the sufficiency of the original act’s title under the constitutional requirement.
Cowan v. Bd. of Comm'rs, 143 Idaho 501, 148 P.3d 1247 (2006)	Statutory interpretation begins with the statute’s literal language, which must be given its plain and ordinary meaning in context.	Applied in the court’s statutory interpretation analysis of Idaho Code § 60-106.
State v. Hart, 135 Idaho 827, 25 P.3d 850 (2001)	Clear and unambiguous statutory words must be given effect as written without resorting to legislative history.	Supported the court’s approach to interpret the statute as written.
Albee v. Judy, 136 Idaho 226, 31 P.3d 248 (2001)	Statute must be given effect as written if unambiguous.	Reinforced the principle applied in statutory interpretation.
Poison Creek Publishing, Inc. v. Central Idaho Publishing, Inc., 134 Idaho 426, 3 P.3d 1254 (2000)	Assumes legislature meant what it wrote unless result is palpably absurd.	Supported the court’s plain language interpretation.
Meisner v. Potlatch Corp., 131 Idaho 258, 954 P.2d 676 (1998)	Constitutional issues are questions of law subject to free review.	Supported the court’s standard of review for constitutional questions.
Big Sky Paramedics, LLC v. Sagle Fire Dist., 140 Idaho 435, 95 P.3d 53 (2004)	Issues of statutory interpretation are reviewed freely by the court.	Supported the court’s standard of review for statutory interpretation.
Sunshine Mining Co. v. Allendale Mut. Ins. Co., 107 Idaho 25, 684 P.2d 1002 (1984)	Challenges to statutes on constitutional grounds may be raised long after enactment.	Refuted the argument that challenges to statute titles must be contemporaneous with enactment.

Court's Reasoning and Analysis

The court began by interpreting Idaho Code § 60-106’s language, emphasizing that the statute requires legal notices to be published in a newspaper of general interest published in Idaho. The statute further defines "newspaper of (or having) general circulation" as the newspaper with the largest paid circulation within the boundaries of the governmental entity where the notice is required, or if none exists, the largest paid circulation newspaper in a county containing the governmental entity or nearest to its boundaries. The court determined that this language applies to both governmental and non-governmental entities, as the statute does not expressly limit its application to governmental entities.

The court then analyzed whether the 1994 amendment’s title complied with Article III § 16 of the Idaho Constitution, which requires an act to have but one subject expressed in its title. The title specifically referred to publication of notice by governmental entities only, thus particularizing the amendment. The court found this particularized title did not encompass the substantive application of the statute to non-governmental entities, which the statute’s body did address. This discrepancy rendered the portion of the statute applying to non-governmental entities unconstitutional and void as it was not expressed in the title.

The court rejected The Statesman’s argument that the title should only be consulted if the statute is ambiguous, emphasizing that the title’s conformity to the constitutional requirement is independently relevant. The court also rejected the contention that challenges to the title’s constitutionality must be contemporaneous with enactment, citing precedent allowing such challenges long after passage.

Finally, the court addressed attorney's fees, concluding that since The Statesman was not the prevailing party, it was not entitled to attorney's fees.

Holding and Implications

The court held that Idaho Code § 60-106 is constitutional as applied to governmental entities but unconstitutional and void insofar as it applies to non-governmental entities.

The practical effect of this decision is that legal notices published by non-governmental entities are not bound by the challenged definition of "newspaper of general circulation" as set forth in the 1994 amendment to Idaho Code § 60-106. The statute remains valid and enforceable for governmental entities as described in the title. Neither party is awarded attorney's fees, and costs are awarded to the appellant, Idaho Business Review. The decision does not establish new precedent beyond the application of the constitutional title requirement to the statute’s scope.

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FEDERATED PUBLICATIONS, INC., a Delaware corporation, dba The Idaho Statesman, Plaintiff-Respondent, v. IDAHO BUSINESS REVIEW, INC., an Idaho corporation, Defendant-Appellant.

W. JONES, Justice.

I. NATURE OF THE CASE

This case involves a request by Federated Publications, Inc. (The Statesman) for a declaration from the Court that Idaho Code Section 60-106 applies to all legal notices, advertisements or publications of any kind required or provided by the laws of the state of Idaho, including both government and private notice, and that such notice must be published in the newspaper having the largest paid circulation within the boundaries of the governmental entity wherein the notice is required to be published. This case also involves the interpretation of Idaho Code § 60-106, as well as the title of the 1994 bill amending Idaho Code § 60-106. The Idaho Business Review ( IBR) contends that the district court erred when it held that its interpretation of the amendment did not violate the subject-in-title requirement of Article III § 16 of Idaho's Constitution.

Federated Publications, Inc. operates and publishes The Idaho Statesman.

II. LEGAL FRAMEWORK

Article III § 16 of Idaho's Constitution states that

Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.

The relevant language of Chapter 192 (S.B. No. 1336) of the 1994 Idaho Session Laws amending Idaho Code § 60-106 reads as follows:

AN ACT

RELATING TO PRINTING OF LEGAL NOTICE; AMENDING SECTION 60-106, IDAHO CODE, TO FURTHER DEFINE A NEWSPAPER OF GENERAL CIRCULATION FOR PURPOSES OF PUBLICATION OF NOTICE BY GOVERNMENTAL ENTITIES AND TO MAKE TECHNICAL CORRECTIONS. . . .

No legal notice, advertisement or publication of any kind required or provided by the laws of the state of Idaho, to be published in a newspaper, shall be published or have any force or effect, as such, unless the same be published in a newspaper of general interest published in the state of Idaho . . .; provided that, notwithstanding any other provision of Idaho laws, the term "newspaper of (or having) general circulation," wherever used in Idaho Code as a qualification of newspapers required to be used for the publication of notice, shall mean a "newspaper," as defined in this section, that is published within the boundaries of the governmental entity wherein the notice is required to be published and which newspaper has the largest paid circulation among all newspapers published in that governmental entity as verified by the sworn statement of average total paid or requested circulation for the preceding twelve (12) months that was filed on the annual statement of ownership, management and circulation with the U.S. postal service on the date immediately preceding the date of the required publication of notice; excepting that, where no newspaper is published within the governmental entity required to publish a notice, the term "newspaper of (or having) general circulation" shall mean the newspaper with the largest paid circulation published within any county in which the governmental entity is located, or the newspaper published nearest to the boundaries of the governmental entity

. . . .

The previous version of Idaho Code § 60-106 required notice to be published in a newspaper of general circulation in a particular county, but did not define "general circulation," whereas the amended version required notice to be published in a newspaper of general interest and defined "newspaper of (or having) general circulation" as a newspaper with the largest paid circulation that is published within the boundaries of the governmental entity where the relevant notice must be published. Under the amended version defining "newspaper of (or having) general circulation," if no newspaper is published within the governmental entity required to publish a notice, the term refers to the newspaper with the largest paid circulation published within any county in which the governmental entity is located or the newspaper published closest to the governmental entity's boundaries. The statute does not define "newspaper of general interest."

The title of an amendatory act generally will not violate Article III § 16 of Idaho's Constitution if the title "refers by number to the section to be amended, provided the title of the original act is sufficient under the rule dealing with the original measures, and provided the amendment is germane to the subject of the original act." Hammond v. Bingham, 83 Idaho 314, 320, 362 P.2d 1078, 1081 (1961). However, if a title "particularize[s] some, but not all, of the changes," then "the legislation is limited to the matters specified, and anything beyond them is void, however germane it may be to the subject of the original act." Id. at 320, 362 P.2d at 1081-82.

This rule states that an original act must include a general statement of the subject of the act such that it has a reasonable tendency to accomplish the purpose of the act. Idaho Gold Dredging Co. v. Balderston, 58 Idaho 692, 703, 78 P.2d 105, 110 (1938) ("The object of the title is to give a general statement of the subject matter, and such a general statement will be sufficient to include all provisions of the act having a reasonable connection with the subject mentioned and a reasonable tendency to accomplish the purpose of the act.") (internal quotation omitted).

In statutory construction, the first step is to examine the statute's literal language. Cowan v. Bd. of Comm'rs, 143 Idaho 501, 511, 148 P.3d 1247, 1258 (2006). The statute's words must be given their plain and ordinary meaning in light of the statute as a whole. State v. Hart, 135 Idaho 827, 829, 25 P.3d 850, 852 (2001). If the words are clear and unambiguous, the Court must give effect to the statute as written, Albee v. Judy, 136 Idaho 226, 31 P.3d 248 (2001), and not consider legislative history. Unless the result is palpably absurd, this Court must assume that the legislature meant what it wrote in the statute. Poison Creek Publishing, Inc. v. Central Idaho Publishing, Inc., 134 Idaho 426, 429, 3 P.3d 1254, 1257 (2000).

III. STANDARD OF REVIEW

Constitutional issues are purely questions of law; therefore, this Court exercises free review over such issues. Meisner v. Potlatch Corp., 131 Idaho 258, 260, 954 P.2d 676, 678 (1998). This Court also freely reviews issues of statutory interpretation. Big Sky Paramedics, LLC v. Sagle Fire Dist., 140 Idaho 435, 436, 95 P.3d 53, 54 (2004).

IV. ANALYSIS

We first will determine the proper interpretation of Idaho Code § 60-106, including whether an ambiguity exists within the statute. Then, we will analyze whether the statute's title is consistent with the mandate of Article III § 16 of the Idaho Constitution. Finally, we will address the issue of attorney's fees.

Interpretation of Idaho Code § 60-106

In simple terms, the relevant portion of the statute can be deconstructed as follows:

Idaho Code § 60-106

No legal notice shall have any effect unless published in a newspaper of general interest published in Idaho Provided that

"Newspaper of or having general circulation," wherever used in the Idaho Code as a qualification of newspapers used for notice publications

— is a newspaper published within the boundaries of the governmental entity wherein notice is required to be published and

— which newspaper has the largest paid circulation among all newspapers published in that governmental entity

Excepting that

Where no newspaper is published within the governmental entity required to publish notice, "newspaper of (or having) general circulation" shall mean

— the newspaper with the largest paid circulation published within any county in which the governmental entity is located, or

— the newspaper published nearest to the boundaries of the governmental entity.

The general statement that "no legal notice shall have any effect unless published in a newspaper of general interest published in Idaho" clearly applies both to governmental and nongovernmental entities. So, both such entities must publish their notices in Idaho publications of "general interest." The remaining language applies to any notice-related statutory provisions that refine this general rule by additionally requiring that the relevant newspaper be a newspaper "of (or having) general circulation." The "provided that" clause does not distinguish between governmental and non-governmental entities required to publish notice. The only use of the term "governmental entity" in that clause involves the geographic sense of the term, not specifically a governmental entity required to publish notice. In other words, it refers to where notice must be published — by governmental and non-governmental entities alike — and not who is publishing notice. Therefore, the statute applies both to governmental and non-governmental entities.

Idaho Code § 60-106 and Article III § 16 of Idaho's Constitution

Idaho Code § 60-106 violates Article III § 16 of Idaho's Constitution. The title of Idaho Code § 60-106 states that it relates to the definition of a "newspaper of general circulation" for purposes of publication of notice by governmental entities. As in Hammond, this amendment is particularized, since the title specifically states that the amendment relates to notice by governmental entities. The title therefore is specific rather than general. It makes no mention of notice published by private parties. It is substantive as well, because it affects the notice requirements of private individuals. This substantive change was not indicated in the title. Consequently, the substance of the statute not included within the title is void. The substance of the statute not indicated in the title is the newly-added portion that adds a more specific definition of "newspaper of (or having) general circulation," because that part of the statute applies to non-governmental entities. Therefore, this part of the amendment is unconstitutional and void insofar as it applies to non-governmental entities.

Next, contrary to The Statesman's contention, IBR raised the issue of the constitutionality of § 60-106 below. In its answer, IBR stated in its third defense that "Plaintiff's allegation that Idaho Code § 60-106 restricts the publication of non-governmental entity legal notices . . . violates Article III Section 16 of the Idaho Constitution." The Statesman also incorrectly claims that the title may only be interpreted when the statute is ambiguous. While it is true that the statute's ambiguity may permit this Court to consult the title in order to ascertain the legislative intent behind the statute, it is not the case that the title may only be consulted for the purpose of resolving an ambiguity within the statute. It also is relevant where the title's conformity to Article III § 16 is called into question.

The Statesman also claims that the inquiry into a title's conformity to Article III § 16 is not appropriate long after the legislation has been passed, since the concern of Article III § 16 is preventing fraud in the enactment of laws. Sunshine Mining Co. v. Allendale Mut. Ins. Co., 107 Idaho 25, 684 P.2d 1002 (1984) refutes this logic, however, since that case involved a challenge to a statute that had existed since 1961, id. at 27, 684 P.2d at 1004, when the facts giving rise to the case occurred in 1979. Id. at 25, 684 P.2d at 1002.

The Statesman additionally argues that the only time that such a challenge to a statute can possibly prevail is when it involves a direct constitutional challenge, whereas here the case involves only a request for a declaratory judgment regarding the interpretation of the statute, not the constitutionality of the statute. The Statesman cites no authority for the proposition that a statute's constitutionality cannot be challenged in a request for declaratory judgment seeking the interpretation of a statute. In addition, The Statesman does not cite authority in support of its claim that IBR's constitutional defense should be barred because it is not a request for affirmative relief, but instead acts as a defense to the Statesman's claim. It also cites no authority for the proposition that a title must go "greatly beyond" the subject of the statute, even when the amendatory title particularizes the subject-matter of the statute, and when the body of the statute encompasses matters outside the particularized area. Attorney's Fees

Only The Statesman requested attorney's fees. Because The Statesman is not the prevailing party, it accordingly is not entitled to attorney's fees.

V. CONCLUSION

For the foregoing reasons, we find Idaho Code § 60-106 constitutional as it applies to governmental entities, but unconstitutional and void in regard to non-governmental entities. Neither party will receive attorney's fees. Costs are awarded to Appellant.

Chief Justice EISMANN, Justices BURDICK, J. JONES and Justice Pro Tem TROUT, concur.