D.A.F. v. Lieteau and Juvenile Corrections Nampa

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 46026
D.A.F., D.L.B., H.D.O., A.W., J.L., and J.H., )
)
Plaintiffs-Respondents, )
)
and )
)
A.F., ) Boise, June 2019 Term
)
Plaintiff, ) Filed: October 7, 2019
)
v. ) Karel A. Lehrman, Clerk
)
VALERIE LIETEAU, individually, and in her )
individual capacity as an employee of IDJC– )
NAMPA; JULIE McCORMICK, individually, )
and in her official capacity; and the IDAHO )
DEPARTMENT OF JUVENILE )
CORRECTIONS, an executive department of )
the STATE OF IDAHO, )
)
Defendants-Appellants, )
)
and )
)
ESPERENZA JIMENEZ, an individual; )
MILAN INSTITUTE, a California business; )
SHARON HARRIGFIELD, in her individual )
capacity as Director of the Idaho Department )
of Juvenile Corrections; BETTY GRIMM, in )
her individual and official capacity as the )
former Superintendent of the Idaho )
Department of Juvenile Corrections Center– )
Nampa; and JOHN DOES 1-10, inclusive, )
)
Defendants. )
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, Ada County. Samuel Hoagland, District Judge.
The order of the district court is reversed and the case is remanded.
Brassey Crawford, PLLC, Boise, for appellant Valerie Lieteau. Andrew C.
Brassey argued.
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Kelly Law, PLLC, Garden City, for appellant Julie McCormick. Michael E. Kelly
argued.
Moore Elia Kraft & Hall, LLP, Boise, for appellant Idaho Department of Juvenile
Corrections. Michael J. Elia argued.
Rossman Law Group, PLLC, Boise and Skaug Law, P.C., Nampa, for respondents
D.A.F., D.L.B., H.D.O., A.W., and J.L. Eric S. Rossman argued.
_____________________
STEGNER, Justice.
This case involves the question of whether a person bringing a tort claim against a
governmental entity for alleged child abuse must comply with the notice requirements of the
Idaho Tort Claims Act. In this case, seven individuals (who will collectively be referred to as the
Juveniles) 1 filed suit in district court, alleging that they had been sexually abused while they
were minors in the custody of the Idaho Department of Juvenile Corrections. In its ruling on
summary judgment, the district court found that the Juveniles’ claims based on Idaho Code
section 6-1701 were not barred by the notice requirements of the Idaho Tort Claims Act. The
Idaho Department of Juvenile Corrections and its employees moved for permission to appeal,
which was granted, and they now argue that the district court erred by allowing the Juveniles’
claims to proceed. We hold that because of the plain language of the ITCA, the notice
requirement applies to claims based on tort actions in child abuse cases. Accordingly, we reverse
the district court’s decision and remand the case for further proceedings consistent with this
opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
This action originally involved seven male plaintiffs alleging sexual abuse while they
were minors in the custody of the Nampa facility of the Idaho Department of Juvenile
Corrections. A.F. and J.H. are no longer parties to this appeal. 2 The relevant information
pertaining to the five remaining Juveniles is as follows:
1
Although none of the plaintiffs are now minors, for ease of reference the opinion will refer to them collectively as
the Juveniles.
2
A.F., one of the original plaintiffs, did not appeal the dismissal of his claims. J.H. passed away during the
pendency of the case and there is no suggestion that a personal representative of his estate has been substituted for
him to pursue his claims.
2
• D.A.F. was in IDJC custody from December 4, 2008, to January 8, 2010. He
turned eighteen on April 5, 2010. He filed a Notice of Tort Claim on September 26, 2014.
• D.L.B. was in IDJC custody from February 11, 2009, to March 12, 2010. He
turned eighteen on June 30, 2010. He filed a Notice of Tort Claim on October 28, 2014.
• H.D.O. was in IDJC custody from April 1, 2009, to July 2010. He turned eighteen
on March 10, 2010. He filed a Notice of Tort Claim on October 28, 2014.
• A.W. was in IDJC custody from September 17, 2008, to February 25, 2009. He
turned eighteen on January 29, 2009. He filed a Notice of Tort Claim on October 28,
2014.
• J.L. was in IDJC custody from January 24, 2011, to March 22, 2011. He turned
eighteen on May 13, 2011. He filed a Notice of Tort Claim on July 21, 2015.
Importantly, all of the notices of tort claims were filed more than four years after each Juvenile
turned eighteen.
D.A.F., D.L.B., H.D.O., and A.W. filed their original complaint on March 19, 2015. J.L.
was added as a plaintiff in the Second Amended Complaint. The Second Amended Complaint
contains the two causes of action that are the subject of this appeal: Count Four, which alleged
that Valerie Lieteau (Lieteau) and Julie McCormick (McCormick), employees of the IDJC,
committed lewd and lascivious acts upon the Juveniles, which gave rise to liability for their
actions under Idaho Code section 6-1701; and Count Five, which alleged that IDJC was
vicariously liable for the actions of its employees under section 6-1701(2).
Subsequently, the IDJC, Lieteau, and McCormick filed separate motions for summary
judgment. All three motions alleged that the Juveniles’ claims should be dismissed because they
were barred by the applicable statute of limitations and the failure of the Juveniles to file timely
notices of tort claims. The Juveniles replied arguing that their claims based on Idaho Code
section 6-1701 (Counts Four and Five of the Second Amended Complaint) should not be
dismissed because the ITCA’s notice requirement did not apply to those causes of action. The
district court dismissed all of the Juveniles’ claims other than Counts Four and Five; however,
the district court ruled that the Juveniles’ claims based on section 6-1701 were not subject to the
ITCA’s notice requirements. As a result, the district court allowed those claims to proceed
against Lieteau, McCormick, and the IDJC. Following that decision, the IDJC moved the district
court for permission to appeal the court’s interlocutory decision. McCormick and Lieteau joined
that motion. The district court granted the motion for permissive appeal and stayed further
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proceedings. This Court granted the motion for permissive appeal, which was not contested by
the Juveniles.
II. STANDARD OF REVIEW
This Court employs the same standard as the district court when reviewing rulings on
summary judgment motions. La Bella Vita, LLC v. Shuler, 158 Idaho 799, 804–05, 353 P.3d 420,
425–26 (2015) (citing Wesco Autobody Supply, Inc. v. Ernest, 149 Idaho 881, 890, 243 P.3d
1069, 1078 (2010)). “The court must grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” I.R.C.P. 56(a). “All reasonable inferences that can be drawn from the record are to be
drawn in favor of the nonmoving party, and disputed facts are liberally construed in the
nonmoving party’s favor.” Marek v. Hecla, Ltd., 161 Idaho 211, 214, 384 P.3d 975, 978 (2016)
(citation omitted). Questions of law are reviewed de novo. Berkshire Invs., LLC v. Taylor, 153
Idaho 73, 80, 278 P.3d 943, 950 (2012) (citation omitted). The interpretation of a statute is a
question of law and is reviewed de novo. Hayes v. City of Plummer, 159 Idaho 168, 170, 357
P.3d 1276, 1278 (2015) (citation omitted).
III. ANALYSIS
A. Idaho Code section 6-1701 claims are subject to the ITCA’s notice requirement.
The outcome of this appeal and the viability of the Juveniles’ claims turn on whether
claims brought pursuant to section 6-1701 are subject to the ITCA’s notice requirement. No one
argues that the Juveniles complied with the notice requirement of the ITCA. Consequently, if the
notice requirement applies, the Juveniles’ claims would be barred. Accordingly, we must turn to
the interpretation of the ITCA and its application in Van v. Portneuf Medical Center, 147 Idaho
552, 212 P.3d 982 (2009), which was relied on by the district court. We hold the plain language
of the ITCA requires a notice of tort claim for a claim brought pursuant to section 6-1701.
Accordingly, the failure to timely file a notice of tort claim bars the Juveniles’ causes of action
against IDJC and Lieteau and McCormick in their official capacity. Claims against Lieteau and
McCormick in their individual capacity have not been addressed in this appeal.
The Idaho Legislature enacted the ITCA as a comprehensive abrogation of sovereign
immunity regarding tort actions. See I.C. §§ 6-901 to 929. The ITCA now governs when the
government may be sued for a tort. Idaho Code section 6-908 states, “[n]o claim or action shall
be allowed against a governmental entity or its employee unless the claim has been presented
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and filed within the time limits prescribed by this act.” In other words, the failure to file a notice
of tort claim as prescribed by sections 6-905 through 6-906A bars a tort claim from being
brought against a governmental entity or its employees who are acting within the scope of their
employment. See id. Idaho Code section 6-906A establishes the time frame in which a minor
must file a notice of claim:
No person who is a minor shall be required to present and file a claim against a
governmental entity or its employee under this chapter until one hundred eighty
(180) days after said person reaches the age of majority or six (6) years from the
date the claim arose or should reasonably have been discovered, whichever is
earlier.
I.C. § 6-906A (italics added). It is undisputed that the Juveniles failed to give timely notice of a
tort claim to the IDJC. Thus, we must turn to the question of whether this notice requirement
applies to section 6-1701 claims.
1. The plain language of the ITCA provides that statutorily created tort claims, including
section 6-1701 claims, are subject to its notice requirements.
Based on Van, the Juveniles attempt to distinguish statutorily based tort causes of action,
like section 6-1701 claims, from common law tort claims, in order to remove the 6-1701 claims
from the notice requirements of the ITCA. However, the plain language of the ITCA does not
support this distinction.
Our rules of statutory construction are well established:
Statutory interpretation begins with the literal language of the statute and
provisions should not be read in isolation, but must be interpreted in the context
of the entire document. Words should be given their plain, usual, and ordinary
meanings and only if the language is ambiguous may this court consider rules of
statutory construction.
Hayes, 159 Idaho at 170–71, 357 P.3d at 1278–79 (internal quotation marks and citations
omitted).
Accordingly, an examination of the relevant provisions of the ITCA is necessary. First,
section 6-906A requires a minor to file a notice of tort claim if his or her “claim” is “against a
governmental entity or its employee under this chapter . . . .” I.C. § 6-906A (italics added). The
ITCA defines “claim” as “any written demand to recover money damages from a governmental
entity or its employee which any person is legally entitled to recover under this act as
compensation for the negligent or otherwise wrongful act or omission of a governmental entity
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or its employee . . . .” I.C. § 6-902(7) (italics added). In other words, a minor is required to file a
notice of tort claim if the minor is pursuing a cause of action by which he is “entitled to recover
under” the ITCA. I.C. §§ 6-902(7), 6-906A.
Section 6-903(1) sets the scope of liability for government entities and thus illuminates
when a plaintiff is “entitled to recover under” the ITCA. Section 6-903(1) creates liability for a
governmental entity “if a private person or entity would be liable for money damages under the
laws of the state of Idaho,” so long as that liability stems from “negligent or otherwise wrongful
acts or omissions” on the part of the governmental entity or its employees. I.C. § 6-903(1) (italics
added). This phrase “under the laws of the state of Idaho” is unambiguously broad and plainly
encompasses both common law claims and statutorily created tort claims. Therefore, the plain
language of the ITCA requires a notice of tort claim for both common law claims and statutorily
created tort claims, so long as the basis of the claim is the negligence or otherwise wrongful act
of the governmental entity or employee. Under the plain language of the ITCA as a whole,
section 6-1701 claims must comply with the ITCA notice requirements.
This outcome garners even more support when reviewing the creation of section 6-1701
claims: the legislature created these causes of action in 1989, four years after it enacted ITCA’s
specific notice requirements for minor’s tort claims against the government and its employees.
1985 Idaho Sess. Laws 151 (codified as I.C. § 6-906A); 1989 Idaho Sess. Laws 60 (codified as
I.C. § 6-1701). In addition, the title of the statutory scheme clearly indicates the legislature
recognized the applicability of the ITCA. The title used by the legislature was Tort Actions in
Child Abuse cases. Thus, the legislature gave clear guidance that this statute involves a tort.
When a statute is unambiguous and the plain language governs, this Court assumes “the
legislature knew of all legal precedent and other statutes in existence at the time the statute was
passed.” See Twin Lakes Canal Co. v. Choules, 151 Idaho 214, 218, 254 P.3d 1210, 1214 (2011)
(quoting City of Sandpoint v. Sandpoint Indep. Highway Dist., 126 Idaho 145, 150, 879 P.2d
1078, 1083 (1994)). Accordingly, we assume the legislature created the section 6-1701 causes of
action knowing that minor’s tort claims against government entities were already subject to
notice requirements.
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2. Case law supports the conclusion that Idaho Code section 6-906A’s notice
requirement would apply to both common law and statutorily created torts.
This Court has previously held that Idaho Code section 6-906A’s notice requirement for
minor’s claims applied to a common law cause of action for sexual abuse against a governmental
entity. Osborn v. Salinas, 131 Idaho 456, 458, 958 P.2d 1142, 1144 (1998). Unlike the Juveniles,
the plaintiff in Osborn did not bring any claims under Idaho Code section 6-1701. See id. at 457,
958 P.2d at 1143. However, this Court recognized that the requirement to file a notice of tort
claim is separate from a statute of limitation, e.g., Idaho Code section 6-1704’s time limit for
filing the cause of action—and found the notice requirement was still applicable. Id. at 458, 958
P.2d at 1144. Further, this Court has previously held that a plaintiff “must assert a tort under the
common law or created by a separate statute” to avail himself of the limited abrogation of
sovereign immunity recognized in the ITCA. Stoddart v. Pocatello Sch. Dist. #25, 149 Idaho
679, 683, 239 P.3d 784, 788 (2010) (italics added) (citing I.C. § 6-903(f) (now subsection (6))).
Thus, this Court has previously recognized that the ITCA applies to a tort action, whether based
on common law or statute.
In contrast, this Court considered whether a statutorily based whistleblower claim is
subject to the notice requirements of the ITCA. Van, 147 Idaho at 556–58, 212 P.3d at 986–88.3
This Court noted,
[n]ot all actions are covered by the ITCA. Instead, the ITCA covers any “claim,”
which it defines as “any written demand to recover money damages from a
governmental entity or its employee which any person is legally entitled to
recover under this act as compensation for the negligent or otherwise wrongful act
or omission of a governmental entity or its employee when acting within the
course or scope of his employment.” I.C. § 6–902(7).
Id. at 557, 212 P.3d at 987. We then set forth the reasoning as to why a governmental employee’s
whistleblower claim under section 6-2105 was not subject to the notice requirements of the
ITCA:
We hold that a whistleblower claim is an action based on a specific statute and
therefore it is unnecessary to classify a Whistleblower Act claim as either a
contract or tort. Although the district court focused on the fact that the statute
establishes “an action separate from” the usual breach of employment contract
claim, the statutory nature of the cause of action does not automatically render it
3
This Court discussed and affirmed the Van decision in Eller v. Idaho State Police, 165 Idaho 147, 155, 443 P.3d
161, 169 (2019).
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subject to the ITCA. In fact, we hold the opposite to be true: the whistleblower
claim is purely a statutory remedy against governmental employers and there is no
reason to assume that the Legislature intended those alleging claims under the
statute to have to comply with the notice provision of the ITCA where the
Legislature did not specifically require it. In fact, the Legislature has
acknowledged statutory claims as a separate category of claims by setting a
separate statute of limitations, Idaho Code section 5–218(1), as opposed to
contract actions, Idaho Code sections 5–216 & 17, and claims sounding in tort,
Idaho Code section 5–219(4). Therefore, the district court erred in holding that
compliance with the notice provision in Idaho Code section 6–906 was a
prerequisite to bringing suit under the Whistleblower Act.
Id. at 558, 212 P.3d at 988 (footnote omitted).
The district court relied on our decision in Van to conclude that section 6-1701 claims are
not subject to ITCA’s notice requirement. However, Van’s analysis is relatively unhelpful here,
as it purports to derive legislative intent regarding the applicability of the ITCA without
addressing the plain language of the statute. Verska v. Saint Alphonsus Reg’l Med. Ctr., 151
Idaho 889, 893, 265 P.3d 502, 506 (2011) (“[W]here statutory language is unambiguous,
legislative history and other extrinsic evidence should not be consulted for the purpose of
altering the clearly expressed intent of the legislature.”).
In addition, there are significant legal distinctions between the case at bar and the Van
decision. First, the cause of action in Van was less akin to a tort, and thus less likely to be subject
to the ITCA. See Van, 147 Idaho at 558, 212 P.3d at 988 (declining to classify a whistleblower
claim as either a contract or a tort claim). Conversely, section 6-1701 claims, while statutorily
created instead of common law based, are still tort claims. The Act’s title makes this conclusion
clear: “Tort Actions in Child Abuse Cases.” I.C. § 6-1701. Consequently, section 6-1701 claims
are subject to the ITCA as tort claims when based on the “negligent or otherwise wrongful acts
or omissions” of a governmental entity or its employee, while contract claims and statutory
claims dissimilar to torts (as in Van) are not. I.C. § 6-903(1).
Second, the whistleblower cause of action in Van concerned “purely a statutory remedy
against governmental employers”; thus, it acted as a separate and distinct cause of action as well
as a waiver of sovereign immunity outside the scope of the ITCA. See Van, 147 Idaho at 558,
212 P.3d at 988; Sanchez v. State, Dep’t of Corr., 143 Idaho 239, 244, 141 P.3d 1108, 1113
(2006) (“It is the general rule that, under the doctrine of sovereign immunity, a governmental
unit can only be sued upon its consent.”). This is unlike section 6-1701 claims, which give rise to
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general causes of action against any applicable party and do not contain specific provisions
regarding suits against governmental entities that might act as waivers of sovereign immunity.
Given this distinction, section 6-1701 claims are subject to the ITCA, while whistleblower
claims are not.
The Juveniles contend that this last distinction is irrelevant and Van’s reasoning—that
statutory causes of action are not subject to the ITCA—still controls because Smith v. State, 93
Idaho 795, 473 P.2d 937 (1970) abrogated sovereign immunity regarding tort actions. The
argument fails because Smith noted its abrogation could be (and in fact was) superseded by
statute. 93 Idaho at 808, 473 P.2d at 950 (abolishing the common law doctrine of sovereign
immunity for the torts “unless legislation is enacted . . . with respect to the abolition of the
sovereign immunity of the state”). Therefore, once the ITCA was enacted, it governed the
abrogation of sovereign immunity for tort claims. Indeed, the Juveniles admit as much in their
briefing. (“[S]overeign immunity is . . . entirely abrogated except as set forth in the Idaho Tort
Claims Act.”). The plain language of the ITCA thus continues to control.
Relying on Van, the Juveniles also contend that section 6-1704, the statute of limitations
for section 6-1701 claims, is further evidence that section 6-1701 claims are not tort claims
subject to the ITCA. See Van, 147 Idaho at 558, 212 P.3d at 988 (“[T]he Legislature has
acknowledged statutory claims as a separate category of claims by setting a separate statute of
limitations . . . as opposed to . . . claims sounding in tort . . . .”). However, filing a notice of tort
claim is a separate procedural requirement from a statute of limitations. Osborn, 131 Idaho at
458, 958 P.2d at 1144. Accordingly, the existence of the specific statute of limitation found in
section 6-1704 has nothing to do with the notice requirement and fails to negate the plain
language of the ITCA.
We are mindful of the impact of this conclusion on sexual abuse claims by minors. To
strictly apply the notice requirements to minors will likely result in the dismissal of potentially
meritorious claims, through no fault of the minors. The Juveniles have raised serious issues about
a statutory scheme that tolls a statute of limitation (I.C. § 6-1704) because of the injured party’s
minority, while still requiring that the party provide notice of his claim within 180 days of
reaching majority or six years after the date the claim arose, whichever is earlier. I.C. § 6-906A.
In many cases, the minors would be better off under the notice requirement that applies to adults,
which states that notices of claims must be filed “within one hundred eighty (180) days from the
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date the claim arose or reasonably should have been discovered, whichever is later.” I.C. § 6-906
(italics added). Idaho Code section 6-1704 states that
an action under the provisions of this chapter must be commenced within five (5)
years from the date that an aggrieved child reaches the age of eighteen (18) years
or, after the child reaches the age of eighteen (18) years, within five (5) years of
the time the child discovers or reasonably should have discovered the act, abuse
or exploitation and its causal relationship to an injury or condition suffered by the
child, whichever occurs later.
Therefore, it is possible that a statute of limitations may not begin to run until years after the
minor is required to file a notice of tort under the ITCA.
Nevertheless, this Court is obligated to apply the plain language of the unambiguous
statute. See Verska, 151 Idaho at 893, 265 P.3d at 506. Accordingly, section 6-1701 claims are
subject to the ITCA’s notice requirements. As a result, the Juveniles’ remaining claims against
IDJC and claims against Lieteau and McCormick in their official capacity must be dismissed
upon remand.
B. Count Five is also subject to the notice requirement.
The district court held that Count Five, although based on section 6-1701(2), which states
a cause of action “under the common law,” was not subject to the notice requirements because
Count Five could have also alleged a cause of action under section 6-1701(1). It appears the
district court denied the IDJC’s motion for summary judgment because Count Five could
represent a statutorily based tort as opposed to one brought under the common law, thus
removing it from the notice requirements under Van.
Our analysis above demonstrates that both statutory and common law tort claims are
subject to the notice requirements. Thus, claims based on section 6-1701(2) must satisfy the
notice requirement—whether or not the claim is grounded in common law. Because the notice
requirement was not met, Count Five along with Count Four must be dismissed because both
counts are against a governmental entity or a governmental employee.
C. Neither party is entitled to an award of attorney fees.
The parties request attorney fees on appeal under Idaho Code section 6-1703. Section 6-
1703 reads, “[t]he prevailing party in a child abuse tort action shall be entitled to costs and
reasonable attorneys’ fees.” I.C. § 6-1703. However, the Juveniles contend that if we determine
that tort claims brought pursuant to Idaho Code section 6-1701 fall within the purview of the
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ITCA, we must turn to Idaho Code section 6-918A to determine whether a party is entitled to
attorney fees. We agree.
Idaho Code section 6-918A states, in relevant part,
at the discretion of the trial court, appropriate and reasonable attorney fees may be
awarded to the claimant, the governmental entity or the employee of such
governmental entity, as costs, in actions under this act, upon petition therefor and
a showing, by clear and convincing evidence, that the party against whom or
which such award is sought was guilty of bad faith in the commencement,
conduct, maintenance or defense of the action. . . . The right to recover attorney
fees in legal actions for money damages that come within the purview of this act
shall be governed exclusively by the provisions of this act and not by any other
statute or rule of court, except as may be hereafter expressly and specifically
provided or authorized by duly enacted statute of the state of Idaho.
Idaho Code section 6-918A is the appropriate statute to award attorney fees in claims that
are under the purview of the ITCA unless there is an express exception created by the legislature.
As noted by the Idaho Court of Appeals, “[t]his statute conveys two clear messages of
importance to the present case. First, it provides that no award of attorney fees may be made
unless ‘the party against whom . . . such award is sought was guilty of bad faith.’” Kent v. Pence,
116 Idaho 22, 23, 773 P.2d 290, 291 (Ct. App. 1989) (alteration in original) (quoting I.C. § 6-
918A). Second,
any right to recover attorney fees in an action for money damages under the Idaho
Tort Claims Act is governed “exclusively” by I.C. § 6–918A. It is not subject to
“any other statute or rule of court, except as may be hereafter expressly and
specifically provided or authorized by duly enacted statute of the state of Idaho.”
Id. In Kent, the Court of Appeals held that Idaho Code section 12-121 contained no express or
specific language providing an exception to the exclusive scope of Idaho Code section 6-918A.
Id. Accordingly, section 12-121 “yields” to section 6-918A in tort claim cases against
governmental entities or their employees. Id.
Like Idaho Code section 12-121, Idaho Code section 6-1703 contains no express or
specific language providing an exception to the application of section 6-918A. The legislature
had the opportunity to include such an exception in Idaho Code section 6-1703, as it was enacted
after the ITCA. Further, had the legislature used express language to consider the application of
the ITCA to section 6-1703, the case would not be before us today. Accordingly, we will use
section 6-918A to determine whether attorney fees are proper in this case.
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Here, there is no evidence to suggest that the Juveniles’ claims were brought in bad faith.
This is especially true given that they prevailed below. Accordingly, the IDJC is not entitled to
an award of attorney fees.
IV. CONCLUSION
For the foregoing reasons, we reverse the district court’s denial of summary judgment in
favor of the IDJC, Lieteau, and McCormick regarding Counts Four and Five. We remand with
instructions to dismiss those counts to the extent that they are against the IDJC and Lieteau and
McCormick in their official capacities. No attorney fees are awarded. Costs are awarded to the
IDJC as it is the prevailing party in this appeal.
Chief Justice BURDICK, Justices BRODY, BEVAN, and MOELLER CONCUR.
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