Hays v. State , 115 Idaho 315 ( 1988 )

SHEPARD, Chief Justice,

concurring and dissenting.

I concur in the result reached by the majority. However, I disagree and dissent from that portion of the majority opinion which holds that denial of review of a decision of the Court of Appeals establishes the decision of the Court of Appeals as controlling precedent. A review of a decision of the Court of Appeals is not a matter of right, but of judicial discretion. It should be granted only when there are special and important reasons therefore. I.A.R. 118. The denial of a writ of certiorari by the United States Supreme Court imparts no expression or opinion on the merits of the case. Railway Express Agency v. Commonwealth of Virginia, 347 U.S. 359, 74 S.Ct. 558, 98 L.Ed. 757 (1954); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Atlantic Coastline R.R. Co. v. Powe, 283 U.S. 401, 51 S.Ct. 498, 75 L.Ed. 1142 (1931); Rathke v. Griffith, 36 Wash. 2d 394, 218 P.2d 757 (1950). Likewise, I would hold that no precedent is established when this Court denies a petition for review of a decision of the Court of Appeals.