Troutner v. Kempthorne

128 P.3d 926, 142 Idaho 389, 2006 Ida. LEXIS 2

• Court: Idaho Supreme Court
• Decided: January 6, 2006
• Docket: 30959
• Status: Published

Opinions

EISMANN, Justice.

This is an appeal from a judgment of the district court dismissing the Appellants’ lawsuit seeking to have Respondent J. Philip Reberger removed from the Idaho Judicial Council. We affirm the judgment of the district court.

I. FACTS AND PROCEDURAL HISTORY

The Governor nominated, and the Senate confirmed, J. Philip Reberger (Reberger) to a term on the Idaho Judicial Council commencing on September 18, 2003, and expiring on July 1, 2009. On February 14, 2004, the Plaintiffs-Appellants (Plaintiffs) brought this action seeking to have Reberger removed from the Judicial Council. They named as Defendants Dirk Kempthorne as Governor of the state of Idaho, Robert L. Geddes as President Pro Tempore of the Idaho Senate, the Idaho Senate, and Reberger.

The Plaintiffs contended that Reberger’s appointment to the Judicial Council violated Idaho Code § 1-2101(1), which provides:

There is hereby created a judicial council which shall consist of seven (7) permanent members, and one (1) adjunct member. Three (3) permanent attorney members, one (1) of whom shall be a district judge, shall be appointed by the board of commissioners of the Idaho state bar with the consent of the senate. Three (3) permanent nonattorney members shall be appointed by the governor with the consent of the senate. If any of the above appointments be made during a recess of the senate, they shall be subject to consent of the senate at its next session. The term of office for a permanent appointed member of the judicial council shall be six (6) years. Vacancies shall be filled for the unexpired term in like manner. Appointments shall be made with due consideration for area representation and not more than three (3) of the permanent appointed members shall be from one (1) political party. The chief justice of the Supreme Court shall be the seventh member and chairman of the judicial council. No permanent member of the judicial council, except a judge or justice, may hold any other office or position of profit under the United States or the state. The judicial council shall act by concurrence of four (4) or more members and according to rules which it adopts.

Specifically, the Plaintiffs contended that the appointment of Reberger, a Republican, resulted in four Republicans being on the Judicial Council, in violation of the provision that not more than three of the permanent appointed members shall be from one political party. To reach that result, they argued that the Honorable Randy Smith must be counted as being from the Republican Party because prior to becoming a district judge in 1996, he had been the chairman of the Idaho Republican Party. The Plaintiffs also contended that Reberger was ineligible for appointment because his membership on commissions or boards constituted holding another office or position of profit under the state.

The Defendants moved to dismiss the complaint, and, after hearing oral argument, the district court granted the motion. It held that the Plaintiffs lacked standing, that the issue was a non-justiciable political question, and that Reberger’s appointment did not violate Idaho Code § 1-2101(1). The Plaintiffs then appealed.

II. ISSUES ON APPEAL

A. Do the Plaintiffs have standing?

B. Would judicial intervention in Reberger’s appointment violate the doctrine of separation of powers?

C. Are the Plaintiffs entitled to an award of attorney fees?

III. ANALYSIS

“Standing is a preliminary question to be determined by this Court before reaching the merits of the case.” Young v. City of Ketchum, 137 Idaho 102, 104, 44 P.3d 1157, 1159 (2002). “The doctrine of standing focuses on the party seeking relief and not on the issues the party wishes to have adjudicated.” Miles v. Idaho Power Co., 116 Idaho 635, 641, 778 P.2d 757, 763 (1989). To satisfy the requirement of standing, “litigants generally must allege or demonstrate an injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury.” Id. “The injury must be distinct and palpable and not be one suffered alike by all citizens in the jurisdiction.” Selkirk-Priest Basin Ass’n, Inc. v. State ex rel. Batt, 128 Idaho 831, 833-34, 919 P.2d 1032, 1034-35 (1996). There must also be a fairly traceable causal connection between the claimed injury and the challenged conduct. Young v. City of Ketchum, 137 Idaho 102, 44 P.3d 1157 (2002). An interest, as a concerned citizen, in seeing that the government abides by the law does not confer standing. Id.

In their complaint, the Plaintiffs alleged that they have standing because:

As members of the ISDP [Idaho State Democratic Party], Plaintiffs belong to the subset of the citizenry of the State of Idaho who have suffered a distinct palpable injury by being denied the chance to serve on the Judicial Council because of the appointment of a fourth member of the Republican Party to the Judicial Council.

The Plaintiffs have not alleged any distinct and palpable injury suffered by them. Their sole allegation of injury is that they and other members of the Idaho State Democratic Party were denied the chance to serve on the Judicial Council because of Reberger’s appointment. - Neither of the Plaintiffs had asked to be nominated to the Judicial Council vacancy filled by Reberger. Nomination by the Governor to the Judicial Council does not involve a merit selection process, and nobody has a right to be considered for such position. Even if a court removed Reberger, there is no requirement that the Governor consider the Plaintiffs or any other Democrat for the position.

The lack of any distinct and palpable injury to the Plaintiffs derives from the fact that Idaho Code § 1-2101(1) does not require that membership on the Council include persons from any particular political party, or that the members even be from a political party. It likewise does not require any balance of persons based upon their political or philosophical beliefs.¹ A person who is not currently a member of a political party would be eligible for appointment to the Council regardless of that person’s prior party membership and regardless of that person’s political or philosophical beliefs.² Thus, the Plaintiffs did not have any right to have a member of their political party appointed to Reberger’s seat, and they did not even have a right to have someone appointed who would share their political or philosophical beliefs.

At most, the Plaintiffs can simply assert a generalized grievance that Reberger’s appointment to the Judicial Council may have violated Idaho Code § 1-2101(1). We have consistently held, however, that citizens who have a generalized grievance shared by a large class of citizens do not have standing where they themselves have not suffered a distinct palpable injury as a result of the challenged conduct. Gallagher v. State, 141 Idaho 665, 115 P.3d 756 (2005); Young v. City of Ketchum, 137 Idaho 102, 44 P.3d 1157 (2002); Selkirk-Priest Basin Ass’n, Inc. v. State ex rel. Batt, 128 Idaho 831, 919 P.2d 1032 (1996). Their remedy is through the political process. Gallagher v. State, 141 Idaho 665, 115 P.3d 756 (2005).

To order Reberger removed from the Judicial Council because he constituted a fourth member of the Idaho Republican Party, we would have to hold that Judge Smith could not cease being a member of that party once he became a district judge. Even if we were to do so, we could not require the Governor to nominate a member of the Idaho State Democratic Party in Reberger’s place. The Governor could appoint someone from any political party (other than the Republican Party), or he could appoint someone who had no party affiliation at all.

The Plaintiffs have failed to allege that they have suffered any distinct and palpable injury from Reberger’s appointment or that the judicial relief requested will prevent or redress the claimed injury. Therefore, the district court did not err in holding that they lacked standing to bring this case.

B. Would Judicial Intervention in Reberger’s Appointment Violate the Doctrine of Separation of Powers?

The district court also held that Reberger’s appointment was a non-justieiable political question not subject to the court’s review. This issue is based upon the doctrine of separation of powers embraced in Article II, § 1, of the Idaho Constitution.³ Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989). “The question is whether this Court, by entertaining review of a particular matter, would be substituting its judgment for that of another coordinate branch of government, when the matter was one properly entrusted to that other branch.” Id. at 639, 778 P.2d at 761.

Idaho Code § 1-2101(1) provides that the Governor shall appoint, with the consent of the Senate, three of the seven permanent members of the judicial council. Article IV, § 6, of the Idaho Constitution provides, “The governor shall nominate and, by and with the consent of the senate, appoint all officers whose offices are established by this constitution, or which may be created by law, and whose appointment or election is not otherwise provided for.” The framers of our Constitution understood that gubernatorial appointments are part of the political process. In Article IV, § 6, they provided Senate confirmation as the check on the Governor’s absolute grant of appointive authority. The legislature can create positions to be filled by gubernatorial appointments without requiring that they be subject to Senate confirmation. In re Inman, 8 Idaho 398, 69 P. 120 (1902). When creating the Judicial Council, however, the legislature expressly required that permanent members of the Council can be appointed only with the consent of the Senate. That requirement brought such appointments within the ambit of Article IV, § 6, which gives the Senate the sole authority to pass upon the nominee’s qualifications. Whether or not Reberger’s appointment violated Idaho Code § 1-2101(1) was an issue that the Senate could, and did, debate prior to his confirmation vote. It would violate the separation of powers guaranteed by Article II, § 1, of the Idaho Constitution for this Court to substitute its view for that of the Senate regarding whether Reberger was qualified to be appointed to the Judicial Council. We must appreciate and respect the allocation of power to another branch of government. Indeed, if a court could second-guess Senate confirmation regarding whether or not Reberger’s appointment resulted in more than three permanent members of the Council being from one political party, it could also decide whether the appointment was made with “due consideration for area representation.” The district court did not err in holding that judicial review of the Senate confirmation would violate the doctrine of separation of powers.

In his opinion, Justice Jones relies upon Ingard v. Barker, 27 Idaho 124, 147 P. 293 (1915), for the proposition that there can always be judicial review of gubernatorial appointments. In Ingard, the Secretary of State had refused to issue a commission to a person appointed by the Governor to the State Board of Horticulture on the ground that in making that appointment the Governor had not complied with the statutory requirement to first consider the recommendations of the State Horticultural Association. The person appointed sought a writ of mandate from this Court requiring the Secretary of State to issue the commission. This Court declined to issue the writ immediately, holding that the State Horticultural Association would have sixty days in which to make recommendations to the Governor. At the expiration of sixty days, the Governor could appoint anyone he desired, regardless of whether the person had been recommended by the Association, and the Secretary of State must issue a commission to that person.

Ingard is inapposite for two reasons. First, that case was not brought by some person whose sole interest was a belief that the Governor had not complied with the statute. It was brought by the injured party— the man who had been appointed and whose commission was denied by the Secretary of State. Second, the statute under which that man had been appointed did not require the consent of the Senate. Therefore, the effect of Senate confirmation pursuant to Article IV, § 6, of the Idaho Constitution was not an issue in the case.

In their brief, the Plaintiffs request an award of attorney fees on appeal under the private attorney general doctrine. Because they did not prevail, they are not entitled to an award of attorney fees. Uhl v. Ballard Med. Prods., Inc., 138 Idaho 653, 67 P.3d 1265 (2003).

IV. CONCLUSION

The judgment of the district court is affirmed. Costs on appeal are awarded to the respondents.

Justices Pro Tern WALTERS and KIDWELL concur.

1 . Political balance on a board or commission can be achieved by having persons from different political parties appoint the members, such as is done with the Commission for Reapportionment pursuant to Idaho Code § 72-1502.

2 . The statute does not define what it means to be from a political party. Idaho law does not require voters to register as belonging to a particular political party. The words “political party” ordinarily refer to an organization whose purpose is to gain or express political power. For example, in American Independent Party In Idaho, Inc. v. Cenarrusa, 92 Idaho 356, 358, 442 P.2d 766, 768 (1968), we stated, "The right of citizens to organize, and give expression and effect to their political aspirations through political parties is inherent in, and a part of, the right of suffrage.” Likewise, Idaho Code § 34 — 109 defines "political party” as “an affiliation of electors representing a political group under a given name as authorized by law."

Someone who is from a political party would be someone who is a member of that political organization. A person would not be from a political party merely because the person had formerly been a member of that party. Just as people have the right to organize into a political party, they also have the right to change or end their party affiliation or to refuse join a political party at all. Idaho Code § 1-2101(1) does not require that Council members be assigned to one of the existing political parties based upon a searching inquiry into their philosophical or political beliefs. The issue is simply whether the person is currently a member of a political party and, if so, which one.

3 . Article II, § 1, of the Idaho Constitution provides:

The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.