CONSTITUTIONAL INTERPRETATIONKEEP OUT?

: CLOSING LEGISLATIVE COMMITTEE MEETINGS DOES NOT VIOLATE ARTICLE III, SECTION 12 OF THE IDAHO CONSTITUTION. Idaho Press Club, Inc. v. State Legislature, 132 P.3d 397 (Idaho 2006).
Michael Salimbene*
I. INTRODUCTION In Idaho Press Club, Inc. v. State Legislature,1 the Idaho Supreme Court held that closed meetings of legislative committees do not violate the provision of the Idaho Constitution,2 which requires that the business of each house and the committee of the whole be transacted openly and not in secret session. This Comment will discuss the relevant facts of Idaho Press Club, as well as the history of constitutional interpretation in Idaho with an emphasis on the use of the maxim of construction expressio unius est exclusio alterius.3 Furthermore, this Comment will discuss the reasoning and soundness of both the majority and dissenting opinions. In so doing, this Comment will suggest that the majoritys application of expressio unius to the Idaho Constitution was appropriate as it served to clarify the state supreme courts previous use of the rule of construction. Thus, this Comment will conclude that the Idaho Supreme Court was correct to use the maxim of expressio unius as support for its holding that the Idaho Constitution does not require legislative committee meetings to be held open to the public.
* J.D. Candidate, Rutgers University School of LawCamden, May 2008; Doctor of Pharmacy, Rutgers UniversityErnest Mario School of Pharmacy, 2005. 1. 132 P.3d 397 (Idaho 2006). 2. IDAHO CONST. art. III, 12. 3. Blacks Law Dictionary defines the term as follows: A canon of construction holding that to express or include one thing implies the exclusion of the other, or of the alternative. BLACK'S LAW DICTIONARY 620 (8th ed. 2004).

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In May of 2004, the Idaho Press Club4 sought declaratory judgment, stating that the Senate and House violated article III, section 12 of the Idaho Constitution5 by holding committee meetings that were closed to the public.6 The Press Club alleged that over the previous two years the Senate had closed four meetings of its legislative committees and the House of Representatives had closed three such meetings.7 In an unpublished opinion, the district court held that article III, section 12 did not apply to meetings of legislative committees, and from that decision, the Press Club appealed.8 The Press Club argued that the phrase business of each house should be construed so as to include legislative committees.9 The Press Club argued that, since each house utilizes legislative committees in order to function, the work of such committees is necessarily encompassed by the phrase business of each house.10 The court cited three problems with the Press Clubs argument11 and went on to hold that [u]sing the recognized rules of construction, [a]rticle III, [section] 12, does not apply to legislative committee meetings.12

According to their website: The Idaho Press Club is dedicated to improving the practice of journalism in Idaho . . . . The Idaho Press Club lobbies for and defends open records, open meetings, cameras in the courtroom and other issues important to working reporters and the public. With more than 200 members in chapters throughout Idaho, the Idaho Press Club serves as a unified voice for Idahos media professionals. Idaho Press Club, http://idahopressclub.org/about.htm (last visited Jan. 27, 2007). 5. The business of each house, and of the committee of the whole shall be transacted openly and not in secret session. IDAHO CONST. art. III, 12. 6. Idaho Press Club, 132 P.3d at 398. 7. Id. 8. Id. 9. Id. at 400. 10. Id. 11. For a further discussion of the courts rationale, see infra Part V. 12. Idaho Press Club, 132 P.3d at 403. The court stated further that [w]here the Constitution does not limit the power of the legislature to close its legislative committee meetings, we do not have the power to order that they be open. Id.

4.

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A. General Interpretation Ideology As is generally the case with state constitutions,13 the Idaho Constitution serves as a limitation on the power of the legislature.14 The Idaho Supreme Court, has declared that the primary objective in determining the meaning of a constitutional provision is to ascertain the intent of the framers.15 Further, the court has stated that the words used in the constitution should be given the natural and popular meaning in which they [were] usually understood by the people who adopted them.16 A more controversial area in state constitutional interpretation, however, is the use of statutory interpretation techniques in interpreting state constitutions.17
13. See Robert F. Williams, State Constitutional Law Processes, 24 WM. & MARY L. REV. 169, 178 (1983) (State constitutions are usually contrasted with their federal counterpart by characterizing the former as limits on governmental power rather than grants of power.). 14. See Idaho Tel. Co. v. Baird, 423 P.2d 337, 340 (Idaho 1967); Caesar v. Williams, 371 P.2d 241, 263 (Idaho 1962); State ex rel. Rich v. Idaho Power Co., 346 P.2d 596, 604 (Idaho 1959); Utah Oil Ref. Co. v. Hendrix, 242 P.2d 124, 127 (Idaho 1952); Boughton v. Price, 215 P.2d 286, 290 (Idaho 1950); McGoldrick Lumber Co. v. Benewah Co., 35 P.2d 659, 661 (Idaho 1934); Koelsch v. Girard, 33 P.2d 816, 817 (Idaho 1934); Lloyd Corp. v. Bannock County, 25 P.2d 217, 219 (Idaho 1933); State ex rel. Macey v. Johnson, 296 P. 588, 589 (Idaho 1931); State v. Nelson, 213 P. 358, 359 (Idaho 1923); Achenbach v. Kincaid, 140 P. 529, 533 (Idaho 1914); St. Joe Improvement Co. v. Laumierster, 112 P. 683, 684 (Idaho 1910). 15. See Williams v. State Legislature, 722 P.2d 465, 468 (Idaho 1986) (This Court should similarly seek to discover the intent of the framers of the Idaho Constitution in determining the extent of . . . powers.). 16. Taylor v. State, 109 P.2d 879, 880 (Idaho 1941). The court in Idaho Press Club stated that intent comes from the words approved by the drafters and later adopted by the people. 132 P.3d at 399. This statement by the court accurately reflects various commentators views on state constitutional interpretation. See Hans A. Linde, E Plurbis Constitutional Theory & State Courts, 18 GA. L. REV. 165, 197 (1984) ([State constitutions] have drafters, yes, but no Founders.); Robert F. Williams, The Brennan Lecture: Interpreting State Constitutions as Unique Legal Documents, 27 OKLA. CITY U. L. REV. 189, 194 (2002) (State constitutions owe their legal validity and political legitimacy to the state electorate, not to Framers or state ratifying conventions as is the case with the Federal Constitution. State constitutions, ratified by the electorate, are therefore characterized by state courts as the voice of the people. (footnotes omitted)). 17. According to Professor Williams, many states have held that rules of statutory construction apply equally to state constitutional interpretation. See Williams, supra note 16, at 209. Ironically, Professor Williams cites a decision from the Idaho Supreme Court and states that Idaho has rejected the use of certain statutory interpretation techniques (expressio unius) in interpreting its state constitution. Id. at 209-10 & n.78. At the time Professor Williams wrote his article, he based this conclusion on the broad and unqualified language

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B. The Use of Expressio Unius in Idaho Constitutional Interpretation According to the court in Idaho Press Club,18 the Idaho Supreme Court first recognized the maxim of expressio unius in Shoshone County v. Profit.19 In Shoshone County, the court was called upon to interpret article XVIII, section 3 of the Idaho Constitution.20 Although the court stated that the maxim expressio unius is peculiarly applicable,21 its holding did not exclusively rely upon it.22 Later, in Clayton v. Barnes,23 the court once again applied the maxim to a provision of the constitution that served to limit power, this time of county officials.24 It should be noted, however, that neither the opinion in Shoshone County or Clayton specified that the use of expressio unius would be limited to situations where the state constitution expressly limits power.25 Years later, the court decided Eberle v. Nielson,26 and in doing so seemingly laid to rest the use of expressio unius as a maxim of state
from the Idaho Supreme Court that [t]here flows from this fundamental concept . . . the inescapable conclusion that the rule of expressio unius est exclusio alterius has no application to the provisions of our [s]tate [c]onstitution. Id. (quoting Eberle v. Nielson, 306 P.2d 1083, 1086 (Idaho 1957)). Essentially, the courts decision in Idaho Press Club clarified the supreme courts view on the applicability of expressio unius to constitutional interpretation. This comment will discuss this issue further in Part IV. 18. 132 P.3d at 399. 19. 84 P. 712, 714 (Idaho 1906). 20. Article XVIII, section 3 states in pertinent part: When any part of a county is stricken off and attached to another county, the part stricken off shall be held to pay its ratable portion of all then existing liabilities of the county from which it is taken. IDAHO CONST. art. XVIII, 3. 21. Shoshone County, 84 P. at 714. 22. For example, before ever mentioning expressio unius Justice Ailshie explicitly stated: It seems to me that this language is too plain and simple to either require or admit of construction. It continues the liability of the detached territory for its ratable proportion of the debts of the county from which it was taken. That was the evident expression of the framers of the [c]onstitution, and was clearly so expressed by them. Id. (emphases added). 23. 16 P.2d 1056, 1058 (Idaho 1932). 24. At issue in Clayton was article XVIII, section 6 of the state constitution, which stated in pertinent part: No other county offices shall be established . . . . The county commissioners may employ counsel when necessary. IDAHO CONST. art. XVIII, 6. The court in Clayton stated that, by limiting the right to employ counsel to the county commissioner, the constitutional provision necessarily functioned as a denial of the authority of other county officials from doing the same. Clayton, 16 P.2d at 1058. 25. See generally Clayton, 16 P.2d 1056; Shoshone County, 84 P. 712. 26. 306 P.2d 1083, 1086-87 (Idaho 1957).

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constitutional interpretation. The controversy in Eberle focused upon article III, section 23 of the constitution, which expressly allows to each member [of the legislature] $10 per day . . . and provides that such per diem shall not exceed $600 for any one session.27 In its holding, the court stated resoundingly that [t]here flows from this fundamental concept, as a matter of logic in its application, the inescapable conclusion that the rule of expressio unius est exclusio alterius has no application to the provisions of our State Constitution.28 Following Eberle, the court ruled on Penrod v. Crowley.29 In Penrod, one issue involved the contention that the wording of a proposed amendmentjustices of the peace shall have such jurisdiction in civil and criminal cases as may be conferred by lawwas a limitation upon the jurisdiction conferred by the section prior to the amendment.30 The court rejected the view that the new wording served as a limitation and stated that the amended section is not to be construed as a denial of other jurisdiction not mentioned.31 The court then recited its pronouncement from Eberle that

27. Id. at 1087 (emphasis added). The court went on to state that the absence of any restrictive terms limiting the legislators to such allowances[] leaves the legislature free to provide for the payment of other expenses . . . . Id. See In re Advisory Opinion to House of Representatives, 485 A.2d 550, 555 (R.I. 1984), for a case from a different jurisdiction that also rejected the use of expressio unius on facts similar to Eberle. In the Advisory Opinion, the Rhode Island Supreme Court held that the maxim was not applicable when the state constitution provided $5 per day for attendance and $0.08 per mile for traveling expenses because [t]he Legislature may exercise any of its powers subject only to limitations found either expressly or by necessary implication in the constitutions. Id. But see Dixon v. Shaw, 253 P. 500, 504 (Okla. 1927), for a case that held that additional expenses could not be added to the list expressly allowed. 28. Eberle, 306 P.2d at 1083. The language used by the court seemed to condemn the use of expressio unius as a maxim of constitutional interpretation once and for all in the State of Idaho. However, upon a close reading of the opinion, one can observe that the cases cited by the court that support the abandonment of expressio unius all dealt with state constitutional provisions that granted power. This will be discussed in greater detail in Part V. It appears that at least one other state has seemingly condemned the use of expressio unius as a maxim of constitutional interpretation, but like Eberle, the issue concerned a grant of power in a state constitution. See Ex parte Hart, 56 S.W. 341, 344 (Tex. Crim. App. 1900). However, the Texas Supreme Court has endorsed the maxims use for limitations of power. See generally Thomas v. State, 9 Tex. 324, (1852). 29. 356 P.2d 73 (Idaho 1960). 30. Id. at 80 (citation omitted). The controversy centered on the idea that this new wording necessarily would oust[] the justice courts of previously existing administrative, inquisitorial and paternalistic jurisdiction, including the jurisdiction to act as coroner in certain cases . . . . Id. 31. Id.

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[t]he rule of expressio unius est exclusio alterius does not apply to provisions of the state constitution.32 It was with both the previously discussed general rules of interpretation and this apparent vagueness surrounding the use of expressio unius as a maxim for constitutional interpretation that the court decided Idaho Press Club. IV. THE COURTS REASONING A. The Majoritys Rationale The majoritys analysis began with a description of the general process that governs constitutional interpretation in Idaho.33 After noting that the Idaho Constitution is a limitation on the power the legislature can exercise, the court framed the issue in Idaho Press Club as whether [a]rticle III, [section] 12 limits the power of the legislature to close legislative committee meetings.34 The majority next began a discussion of the workings of the legislature at the time article III, section 12 was adopted. The court provided evidence that at the time of adoption both the Senate and the House of Representatives utilized two different forms of committees,35 and each body was well aware of the distinction between the two.36 Having established that each house, the committee of the whole, and the legislative committees were three distinct entities, the court shifted its focus to the text of article III, section 12.37 The limitation on secret sessions contained in article III, section 12 applies to both each house and the committee of the whole, however, the

32. Id. (citing Eberle, 306 P.2d at 1086). Justice Taylor authored the courts opinion in both Eberle and Penrod. See id.; Eberle, 306 P.2d 1083. 33. Idaho Press Club, Inc. v. State Legislature, 132 P.3d 397, 399 (Idaho 2006). The majority stated that: (1) the primary object is to determine the intent of the framers; (2) the words in the constitution should be given the natural and popular meaning in which they are understood by the people who adopted them; and (3) the legislature has plenary power in all matters for legislation except those prohibited by the constitution. Id. 34. Id. 35. Those being: (1) the committee of the whole and (2) smaller legislative committees. Id. 36. Id. (It is clear that the delegates to the Constitutional Convention understood that they were distinctly different types of committees.). The court stated further that the Press Club admitted that the committee of the whole and a legislative committee are two entirely different types of committees. Id. 37. Id.

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text does not explicitly place a restriction on legislative committees.38 This constitutional enumeration of certain limitations allowed the court to apply the rule of construction expressio unius est exclusio alterius.39 Employing the maxim expressio unius, the court held that article III, section 12 does not apply to legislative committees because the drafters did not include such committees in its provisions.40 The drafters of section 12 were free to limit the ability of legislative committees to operate in secret session but it was simply not a matter they were concerned about.41 Having stated its holding, the majority continued on to discuss the problems with the Press Clubs argument that the phrase business of each house should be construed as to include legislative committees.42 The court first stated that the plain language of the provisions in article III, section 12 ran contrary to this contention.43 Secondly, the adoption of the Press Clubs definition of business would lead to an inconsistency with article III, section 10.44 The final issue the majority took with the Press Clubs
38. Id. The text of article III, section 12 reads: The business of each house, and of the committee of the whole shall be transacted openly and not in secret session. IDAHO CONST. art. III, 12 (emphases added). 39. Idaho Press Club, 132 P.3d at 400. The court stated that the rule of construction expressio unius est exclusio alterius applies to provisions of the Idaho Constitution that expressly limit power . . . . Id. (citing Clayton v. Barnes, 16 P.2d 1056, 1058 (Idaho 1932); Shoshone County v. Profitt, 84 P. 712, 714 (Idaho 1906)). The court went on to state that expressio unius does not apply to provisions that merely enumerate powers. Id. (citing Penrod v. Crowley, 356 P.2d 73, 80 (Idaho 1960); Eberle v. Nielson, 306 P.2d 1083, 1086 (Idaho 1957)). 40. Id. 41. Id. The Press Club itself admitted that [s]ignificantly, the ability to close committee meetings was never discussed or raised as a concern by the constitutional delegates. Id. (citation and internal quotation marks omitted). 42. Id. 43. Id. The court stated that if the intended reading of business was to include the work of all committees there would have been no reason to expressly include the committee of the whole in the text of article III, section 12. Id. This would render the reference to the committee of the whole mere surplusage and [the court] should avoid an interpretation which would render terms of a constitution surplusage. Id. (citing Westerberg v. Andrus, 757 P.2d 664, 666-67 (Idaho 1988)). 44. Id. Article III, section 10 states: A majority of each house shall constitute a quorum to do business. IDAHO CONST. art. III, 10. The majority stated that if legislative committees were to be included within the meaning of business, as the Press Club argued it should, then this would necessarily mean that a majority of each house would have to be present at each meeting of a legislative committee because such committee meetings would constitute doing the business of the house. Idaho Press Club, 132 P.2d at 400. The interpretation of business, the Press Club urged, would therefore not be consistent with the framers intentions. Id. (citing 1 PROCEEDINGS AND DEBATES OF THE CONSTITUTIONAL CONVENTION OF

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argument centered on the history surrounding the adoption of article III, section 12.45 Throughout the constitutional debate, the delegates did not discuss whether the legislative committee meetings should be open or closed to the public, but instead focused on the sessions of the legislature.46 Accordingly, the court stated, [t]o apply [the delegates] arguments to an issue they were not even addressing is simply putting words in their mouths.47 The court completed its historical analysis by asserting that at the time of the Idaho Constitutional Convention, legislative committee meetings were typically closed to the public.48 The majority concluded its opinion49 by rejecting the policy arguments urged on the court by the Press Club and amicus curiae, stating that policy arguments are not sufficient to give a constitutional provision a meaning that is inconsistent with its wording.50 The court declined to exercise power properly belonging to the legislature51 and affirmed the ruling of the district
IDAHO 1889, at 38-41, 49 (I.W. Hart ed., 1912)). The majority stated that the only way to then rectify this inconsistency would be to hold that the word business has a different meaning in section 12 than it does in section 10. Id. However, since the term business in section 12 does not mean something different than business in section 10, the Press Clubs argument would be inconsistent with previous constitutional interpretation jurisprudence in Idaho. Id. ([P]rovisions in the Constitution, insofar as they relate to the same subject matter, must be construed together. (citing Idaho Tel. Co. v. Baird, 423 P.2d 337, 340 (Idaho 1967))). 45. Idaho Press Club, 132 P.3d at 401. 46. Id. The opinion discussed the debates between the delegates but ultimately concluded that the arguments of the delegates cannot be used to expand the meaning of a constitutional provision beyond its wording. Id.; see also DONALD CROWLEY & FLORENCE HEFFRON, THE IDAHO STATE CONSTITUTION: A REFERENCE GUIDE 82-83 (1994) (discussing briefly the debate surrounding article III, section 12). 47. Idaho Press Club, 132 P.3d at 401. 48. Id. at 402. The court presented such evidence in support of their position: (1) the public had no common law right to attend meetings of government bodies, id. (citing Socy of Profl Journalists v. Secy of Labor, 616 F. Supp. 569 (D. Utah 1985)); and (2) at the time Idaho became a state, no state constitution prohibited the legislature from closing legislative committee meetings. Id. at nn.2-4. 49. The majority also rejected the Press Clubs contention that article I, section 10 of the Idaho Constitution requires that legislative committee meetings be open. Article I, section 10 states that The people shall have the right to . . . instruct their representatives . . . . IDAHO CONST. art. I, 10. The court concluded that this provision is not specific as to the manner in which the people have the right to instruct their representatives; therefore, even if a conflict between the sections did exist, the specific language of article III, section 12 would prevail over the general language of article I, section 10. Idaho Press Club, 132 P.3d at 403 (citing Engelking v. Inv. Bd., 458 P.2d 213, 217 (Idaho 1969)). 50. Id. at 402-03. 51. Id. at 403 ([T]he powers of each house include the power to determine its own rules of proceeding. (quoting IDAHO CONST. art. III, 9)).

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court, declaring that [w]here the constitution does not limit the power of the legislature to close its legislative committee meetings, we do not have the power to order that they be open.52 B. The Dissents Rationale The dissent opened its opinion by impugning the majoritys contention that, simply because article III, section 12 does not mention legislative committees, the Legislature has the power to close these meetings to the public.53 According to the dissent, the majoritys view overlooks the meaning of the words in article III, section 12 and therefore is an inaccurate interpretation of the Idaho Constitution.54 In discussing the true intent of article III, section 12, the dissent referenced various provisions of the Idaho Constitution and proclaimed that [t]here is no indication in the Constitution that the people intended their right to instruct to stop at the doors of a closed committee meeting.55 Furthermore, the dissent described at length the essential role legislative committees play in carrying on the functions of each house.56 In the next portion of the dissent, Justice Jones discussed the debates among the delegates and asserted that it was never the intent of delegates to close any part of the law-making process, rather full openness was presumed.57 According to the dissent, although the comments of the
52. Id. 53. Id. (Jones, J., dissenting) (I simply cannot accept the notion that the people would require the Legislature to conduct the peoples business in public yet intended to permit the Legislature to create smaller forms of itself and conduct that business behind closed doors.). 54. Id. at 403-04 (The fundamental object in construing constitutional provisions is to . . . fulfill the intent of the drafters. (quoting Sweeny v. Otter, 804 P.2d 308, 312 (Idaho 1990))). 55. Id. at 404 (citing IDAHO CONST. art. I, 2; id. 10; id. art. III, 1). 56. Id. at 404-05. The dissent stated, That each house, the committee of the whole, and legislative committees are three distinctly different groups is significant only in labeling their form. Id. at 404 (quoting id. at 399 (majority opinion)). Further the manual adopted by each house states that the function [of legislative committees] is to carry out the will of that body. Id. at 405 (Jones, J., dissenting). Based on this and other evidence, the dissent opined: [I]t can be readily seen that committees owe their entire existence to, are controlled by, and conduct [t]he business of, the Legislature when they are considering legislation. Put differently, committees are necessarily components of each house. If they did not exist, the Legislature would have to do that work itselfand that work, of course, would be subject to art[icle] III, [section] 12. Id. (quoting IDAHO CONST. art. III, 12). 57. Id. at 404-05.

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delegates did not refer specifically to committees, because the committees are not separable from their parent bodies, they too are within the purview of article III, section 12.58 Therefore, when considered in the context of the preceding debate, the goal of the delegates was to achieve an open legislative process.59 The dissent next took aim at the majoritys use of the concept of expressio unius est exclusio alterius.60 In this undertaking the dissent gathered cases from other jurisdictions that interpreted statutes to support the notion that the maxim expressio unius is subordinate to the drafters intent.61 The dissent then attempted to call into question the Idaho Supreme Courts inconsistent prior employment of expressio unius in constitutional interpretation.62 Continuing on with its condemnation of expressio unius, the dissent asserted that the silence regarding legislative committees should not be taken to infer the delegates intent to exclude committees from the limitations in article III, section 12.63 Moreover, the dissent introduced examples of where the use of expressio unius would produce illogical results.64 However, the dissent misconstrues the majoritys holding in attempting to make this argument.65 The final point of contention from the dissent was the majoritys holding that the business, as found in art[icle] III, [section] 12 is defined by

58. Id. at 406. 59. Id. 60. Id. (I do not agree that silence in this case demonstrates intent.) 61. Id. at 406-07. The majority stated in its opinion that it is in agreement with this outlook. Id. at 399 (majority opinion) (In construing the constitution, the primary object is to determine the intent of the framers. (quoting Williams v. State Legislature, 722 P.2d 465, 467-68 (Idaho 1986))). 62. Id. at 407 n.9 (Jones, J., dissenting). The dissent, without discussing the facts of the cases or considering the constitutional provision being interpreted, stated that the court applied the maxim in Shoshone County and Clayton, but did not in Eberle or Penrod. Id. Furthermore, the dissent stated that [t]here was no language in either of these two cases to indicate the rule applied in some instances but not in others. Id. This comment will argue in Part V that the dissent is incorrect in its contention that the Idaho Supreme Courts previous use of expressio unius is inconsistent. 63. Id. at 407 ([T]he inference that committees were intended to be excluded is tenuous, at best.). 64. Id. at 408. The dissent pointed to article III, section 9 and article III, section 7 of the constitution. Id. The dissent also called into question the majoritys use of expressio unius because on those occasions that we have applied expressio unius . . . we were not dealing with . . . the extent to which the people authorized the legislature to transact its business behind closed doors. Id. 65. See infra note 86 and accompanying text.

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art[icle] III, [section] 10.66 According to the dissent, the majority . . . defining business as something other than a quorum of each house creates an inconsistency.67 Through referencing various statutes that contain a quorum requirement, the dissent arrived at the conclusion that saying a majority of members shall constitute a quorum to do business is simply a way of phrasing the requirement that the house, when it is sitting as a house, have a majority of members to transact proceedings.68 In summation, the dissent stated that the question presented by the case was:
[W]hether we derive the intent of art[icle] III, [section] 12 from the meaning of its words and thus define the scope of the Legislature's business by examining the responsibility delegated to that body by the people of Idaho, or whether we ignore the substance and context of the words used and instead derive the drafters' intent by hastily applying a tool of construction . . 69 ..

Justice Jones suggested that legislative committees should not serve to deprive people of access to the law-making process, and he presented a prudential argument that suggested such a course, as the one the majority approved, could lead to a situation where only the final vote on an issue would occur in open session.70 The dissent concluded by stating that when meeting and considering matters related to legislation, [legislative committees] are conducting [t]he business of the Legislature and are therefore subject to art[icle] III, [section] 12.71

66. Idaho Press Club, 132 P.3d at 409 (Jones, J., dissenting). 67. Id. at 410. 68. Id. The dissent went further to suggest that simply because the word business means one thing in one place does not mean it means the same thing in the next place. Id. The meaning of a word depends on the context in which it is found. Id. at 411. 69. Id. 70. Id. 71. Id. (quoting IDAHO CONST. art. III, 12). The dissent did suggest, however, that there might be activities that the legislature engages in that are not subject to article III, section 12, including, for example, matters related to litigation or threats against the state. Id.

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This Comment argues that the reasoning employed by the majority led to the correct, although perhaps unpopular,72 interpretation of the Idaho Constitution. In its opinion, the court provided clarification of how the maxim expressio unius should be applied when interpreting the Idaho Constitution. In so doing, the court announced a rule that, although never explicitly stated, was apparent in its previous jurisprudence. A. The Courts Overall Analysis In its opinion, the court clearly laid out the general rules used to interpret the Idaho Constitution.73 Since the primary object is to interpret the intent of those who framed the constitution, the court was correct in first looking to the discussion of the delegates in order to determine their understanding of the setup of the legislature. Since [i]t is clear74 the delegates understood there to be a difference between the committee of the whole and the legislative committees, the majority rightly searched for evidence that the delegates expressed an opinion regarding whether committee meetings

72. Likely in response to the unpopularity of the decision, the legislature amended the Idaho Code to read: All meetings of any standing, special or select committee of either house of the legislature of the state of Idaho shall be open to the public at all times, except in extraordinary circumstances as provided specifically in the rules of procedure in either house, and any person may attend any meeting of a standing, special or select committee, but may participate in the committee only with the approval of the committee itself. IDAHO CODE ANN. 67-2346 (2006); see also Soc. Sci. Research Ctr., Boise St. Univ., 14th Annual Idaho Public Policy Survey, 2003 C. OF SOC. SCI. & PUB. AFFAIRS 15, available at http://sspa.boisestate.edu/ssrc (finding that seventy-five percent of citizens surveyed believed legislative party caucuses should be held open to the public); Tom Henderson, Legislators Win the Right to do the Wrong Thing, LEWISTON MORNING TRIB., Mar. 22, 2006, at 6A; Dan Popkey, Idaho Lawmakers Need to Open Doors, Do Business Where Public Can Watch, IDAHO STATESMAN, Jan. 7, 2001, at 2L (discussing the publics views on the matter both before and after the court decision). These views appear consistent with those held by the citizens of Idaho at the time their constitution was drafted. See Frank P. Grad, The State Constitution: Its Function and Form for Our Time, 54 VA. L. REV. 928, 943 (1968) (One of the most marked features of all recent [s]tate constitutions [including Idahos] is the distrust shown of the Legislature . . . .). 73. Idaho Press Club, 132 P.3d at 399. 74. The Press Club conceded that the committee of the whole and the legislative committee are two distinct entities. Id.

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should be open or closed to the public, but found none.75 Furthermore, the court went deeper into the search for intent by looking to the practices of other states in the union and found that none had prohibited their states legislature from closing committee meetings.76 In spite of these findings, the dissenting opinion sought to derive the intent77 from the delegates silence. However, due to the structure and relative ease in changing state constitutions, both Idaho case law and several commentators have criticized this approach.78 The majority properly refused to infer any limitation on the legislature in light of the delegates silence on this matter, and thus properly utilized the maxim expressio unius to interpret article III, section 12 of the Idaho Constitution.79

75. Id. at 401 (stating that the delegates were arguing over secret sessions of the Legislature rather than closed legislative committee meetings). Commentators approve of the courts approach since there is a natural linkage between the people and the delegates who drafted a particular constitution, because the later acts as agents of the former. See, e.g., L. Harold Levinson, Interpreting State Constitutions by Resort to the Record, 6 FLA. ST. U. L. REV. 567, 570 (1978). 76. Idaho Press Club, 132 P.3d at 402. 77. Id. at 411 (Jones, J., dissenting). 78. See Shoshone County v. Profitt, 84 P. 712, 715 (Idaho 1906) (stating that the courts role is to interpret the language of the constitution rather than to decide if it creates an injustice); see also ELMER E. CORNWELL, JR., JAY S. GOODMAN & WAYNE R. SWANSON, STATE CONSTITUTIONAL CONVENTIONS: THE POLITICS OF THE REVISION PROCESS IN SEVEN STATES 8 (1975) (Because of the detailed language of most state constitutions . . . judges have been inclined to follow a rather strict construction. . . . [I]t is probably true that interpretation has been less important than the more formal processes of amendment and revision.); Levinson, supra note 75, at 568 (State constitutions are easier to amend and may therefore provide less justification for flexible interpretation.). 79. The majoritys use of the maxim, after failing in its attempt to ascertain the intent of the delegates, is in accord with the approach taken by other states. See, e.g., Zanier v. City of Brighton, 917 P.2d 280, 283 (Colo. 1996); People v. Tisler, 469 N.E.2d 147, 161-62 (Ill. 1984) (Ward, J., concurring); Vreeland v. Byrne, 370 A.2d 825, 830 (N.J. 1977) (It is a familiar rule of construction that where phraseology is precise and unambiguous there is no room for judicial interpretation or for resort to extrinsic materials.); see also 2 FRANK P. GRAD & ROBERT F. WILLIAMS, STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: DRAFTING STATE CONSTITUTIONS, REVISIONS, AND AMENDMENTS 80 (2006) (A grant of an enlarged power by the People should not rest upon doubtful implication arising from the omission of a[n] . . . express limitation, . . . unless it appears that the omission and its significance was called to the attention of the People. (emphasis added) (quoting Kuhn v. Curran, 61 N.E.2d 513, 517-18 (N.Y. 1945))).

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B. The use of Expressio Unius in Interpreting the Idaho Constitution A close examination of the cases that previously applied the maxim expressio unius to the Idaho Constitution demonstrates that the court in Idaho Press Club correctly applied the maxim to article III, section 12. Furthermore, the courts application of the maxim to provisions of the constitution that limit the Legislatures power makes sense in light of the structure of state constitutions.80 In coming to its decision to apply expressio unius to article III, section 12, the court looked at how the maxim was used in past constitutional interpretation cases and synthesized the rule that expressio unius est exclusio alterius applies to provisions of the Idaho Constitution that expressly limit power, but it does not apply to provisions that merely enumerate powers.81 Despite the dissents complaint that there was no language [in previous cases] to indicate the rule applied in some instances but not others,82 the maxim was applied in a manner consistent with previous Idaho decisions.83 At first blush the language used in Eberle v. Nielson84 seems to indicate that the use of expressio unius has no role whatsoever in interpreting Idahos constitution.85 However, a close reading of the case unveils reasoning identical to that employed by the majority in Idaho Press Club. For example, the court in Eberle first stated that [the court] look[s] to the State Constitution, not to determine what the legislature may do, but to determine what it may not do. If an act of the legislature is not

80. State constitutions, unlike their federal counterpart, serve as a limitation on the power of the legislature. See Idaho Tel. Co. v. Baird, 423 P.2d 337, 340 (Idaho 1967); Williams, supra note 13, at 178. 81. Idaho Press Club, 132 P.3d at 400 (internal citations omitted). 82. Id. at 407 n.9 (Jones, J., dissenting). 83. Id. at 400 (majority opinion) (citing Clayton v. Barnes, 16 P.2d 1056, 1058 (Idaho 1932) (limitation on who was able to employ counsel; maxim applied); Shoshone County v. Profitt, 84 P. 712, 714 (Idaho 1906) (prohibition on the legislatures ability to assign financial responsibilities to a county; maxim applied); Penrod v. Crowley, 356 P.2d 73, 80 (Idaho 1960) (definition of the jurisdiction in the amended section is not to be construed as a denial of other jurisdiction not mentioned; maxim did not apply); Eberle v. Nielson, 306 P.2d 1083, 1087 (Idaho 1957) (no limitation, but rather, the constitution allows certain payments; maxim did not apply)). 84. 306 P.2d 1083 (Idaho 1957). 85. In fact, scholars have used the courts sweeping declaration that the rule of expressio unius est exclusio alterius has no application to the provisions of our State Constitution in order to cite Idaho as an example of a state that has done away with the use of the maxim in this context. See Williams, supra note 16, at 209-10.

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forbidden by the state or federal constitutions, it must be held valid.86 Further, while it is true that Eberle provided a discussion of various cases that have refused to apply expressio unius, these cases each would have applied the maxim to a grant of power.87 A proper reading of Eberle, therefore, would reveal that the condemnation of expressio unius was in fact only meant to apply to cases where the constitution enumerates grants of power to the legislature. Thus, in raising Eberle and Penrod to support its argument that the majority wrongfully applies expressio unius, the dissent demonstrated an improper understanding of the precedent in this area. This misunderstanding is further evidenced by the dissents discussion of an illogical result that would occur from applying expressio unius to article III, section 9 of the constitution, which grants the legislature the power to determine its own rules of proceeding.88 However, upon even a cursory reading of the majority opinion, it is clear that the court would not apply expressio unius to this provision as it is a grant of power to the legislature.89 The majoritys rule on the maxims application is more consistent with Idaho case law and therefore was proper to apply in the case.90
86. Eberle, 306 P.2d at 1086. Although the quote relied on by the dissent could have been more clearly understood if it concluded with the qualifier when a provision grants the legislature power, the majority in Idaho Press Club correctly interpreted Eberle. 87. Id. at 1086-87. Cases discussed include: Collins v. Riley, 152 P.2d 169 (Cal. 1944) (maxim not applied to a grant of power); MacMillan Co. v. Clarke, 194 P. 1030, 1033 (Cal. 1920) (Express enumeration of legislative powers is not exclusive . . . .); accord Slavich v. Walsh 186 P.2d 35, 35-39 (Cal. Ct. App. 1947); Diefendorf v. Gallet, 10 P.2d 307, 314 (Idaho 1932) (recognizing that all powers are retained by the state unless they are expressly withheld by the constitution); Indep. Sch. Dist. v. Pfost, 4 P.2d 893, 897 (Idaho 1931) (stating that the constitution need not expressly authorize each type of tax the legislature adopts); Ex parte Kessler, 146 P. 113, 114 (Idaho 1915) (stating that the constitution enumerated three methods to raise revenue; maxim did not apply). 88. Idaho Press Club, 132 P.3d at 408 (Jones, J., dissenting) (quoting IDAHO CONST. art. III, 9). 89. Idaho Press Club, 132 P.3d at 400 (majority opinion) ([Expressio unius] applies to provisions . . . that expressly limit power, but it does not apply to provisions that merely enumerate powers. (internal citations omitted)). Furthermore, the dissents contention that on those occasions [the court] ha[d] applied expressio unius . . . [the court was] not dealing with questions relating to the relationship between the peoples inherent political power and the extent to which the people authorized the Legislature to transact its business behind closed doors, is too narrow an application to be workable. Id. at 408 (Jones, J., dissenting). 90. Other jurisdictions exploring the use of expressio unius have reached similar results. See, e.g., Thompson v. Holt, 1875 WL 1006, at *4 (Ala. 1875) (finding that the maxim should not apply if the power of the legislature is not limited by the constitution); Ainsworth v. Bryant, 211 P.2d 564, 568 (Cal. 1949) (In thus delineating and limiting the specific, exclusive taking power . . . it would appear under [expressio unius] that no further power . . . was intended. (citation omitted) (emphasis added)); Slavich v. Walsh, 186 P.2d 35, 39 (Cal.

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In addition to the dissents misunderstanding of expressio unius role in Idaho Constitutional interpretation, its argument is flawed in several other ways. In attempting to glean intent from silence, the dissent was in effect speaking for the delegates on a matter of which they were not concerned.91 Further, the dissent stated that the majority attempted to infer intent from this silence and that such an inference was tenuous at best.92 However, those who drafted the Idaho Constitution were aware that their state constitution would serve as a limitation on the powers conferred to the legislature, with the legislature maintaining plenary power in all matters except those expressly prohibited by either the state or Federal Constitution.93 However, those who drafted the Idaho Constitution were aware that their state constitution would serve as a limitation on the powers conferred to the legislature, with the legislature maintaining plenary power in all matters except those expressly prohibited by either the state or Federal Constitution. Therefore, the majority was correct to have read and interpreted the text as it appearedor in this case did not appearin the constitution.

Ct. App. 1947) (An express enumeration of legislative powers is not exclusive of others not named . . . . (emphasis added)); State ex rel. Jackman v. Ct. of Common Pleas, 224 N.E.2d 906, 910 (Ohio 1967) (stating that the maxim cannot be used to restrict the plenary power of the legislature). But see Reale v. Bd. of Real Estate Appraisers, 880 P.2d 1205, 1213 (Colo. 1950) (Oliphant, J., dissenting) (The doctrine of [expressio unius] is inapt when the constitution limits, rather than grants, power. When a constitution grants authority, no more than what is specifically enumerated is granted.). 91. Idaho Press Club, 132 P.3d at 399 (majority opinion) (stating that this would be putting words in [the delegates] mouths). The dissent did not posit evidence of any debate regarding legislative committee meetings being open or closed, but stated that such evidence would not be necessary, as the legislative committees are not different from each house and the committee of the whole. Id. at 407 (Jones, J., dissenting). But see id. at 399 (majority opinion) ([T]he Press Club admits that the committee of the whole and a legislative committee are two entirely different types of committees.). 92. Id. at 407 (Jones, J., dissenting). 93. The court in Higer v. Hansen, 170 P.2d 411, 422 (Idaho 1946), stated: The convention which framed the Constitution had among its members many of the most prominent lawyers of the territory. From its members were later elected senators, governors, justices and judges, and it is to be assumed that the convention had before it the constitutions of various of the several states, and it must be presumed that it was drafted with care and precision in the use of language . . . . Id.

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The court in Idaho Press Club94 properly applied the maxim expressio unius est exclusio alterius to article III, section 12 of the Idaho Constitution. The delegates recognized a difference between the committee of the whole and legislative committees, and the dissent failed to provide a specific example of a delegates concern regarding closed committee meetings. Thus, the court was right to avoid the pitfall of inferring a questionable meaning from this carefully crafted document. Since the intent of the drafters was not clear, the courts application of expressio unius to a constitutional provision that limits power is fully in agreement with both Idahos prior jurisprudence and the logical interpretation of state constitutions in general.

94. 132 P.3d 397 (Idaho 2006).