Idaho Press Club, Inc. v. State Legislature

EISMANN, Justice.

This is an appeal from a decision holding that Article III, § 12, of the Idaho Constitution does not apply to legislative committee meetings. We affirm the judgment of the district court.

I. PACTS AND PROCEDURAL HISTORY

On May 27, 2004, the Idaho Press Club, Inc., (Press Club) filed this action seeking a declaratory judgment holding that the conduct of the Senate and House in closing legislative committee meetings to the public violates Article III, § 12, of the Constitution of the State of Idaho. The Press Club alleged that during the 2003 and 2004 legislative sessions the Senate had closed four meetings of its legislative committees and the House of Representatives had closed three meetings of its legislative committees. The district court held that Article III, § 12, did not apply to meetings of legislative committees, and the Press Club appealed.

II. ANALYSIS

Article III, § 12, of the Idaho Constitution provides, “The business of each house, and of the committee of the whole shall be transacted openly and not in secret session.” The issue before us is whether that provision requires all meetings of legislative committees to be open to the public. Our task is not to decide whether such meetings should be open. It is solely to decide whether the Constitution requires that they must be open.

“In construing the constitution, the primary object is to determine the intent of the framers.” Williams v. State Legislature, 111 Idaho 156, 158-59, 722 P.2d 465, 467-68 (1986). That intent comes from the words approved by the drafters and later adopted by the people. “The presumption is that words used in a constitution are to be given the natural and popular meaning in which they are usually understood by the people who adopted them.” Taylor v. State, 62 Idaho 212, 217, 109 P.2d 879, 880 (1941). “It must be kept in mind that the Constitution of the State of Idaho is not a delegation of power to the legislature but is a limitation on the power it may exercise, and that the legislature has plenary power in all matters for legislation except those prohibited by the constitution.” Idaho Tel Co. v. Baird, 91 Idaho 425, 428, 423 P.2d 337, 340 (1967). Thus, the question before us is whether Article III, § 12, limits the power of the legislature to close legislative committee meetings.

At the time Section 12 was adopted, a legislative house (which in this context refers to both the Senate and the House of Representatives) typically utilized two types of committees: (a) the committee of the whole and (b) smaller committees comprised of specified members of the house (herein “legislative committees”). Neither the committee of the whole nor a legislative committee can vote to pass a bill. That can only be done by the house when it is in session. Although there is some overlap in the functions of the committee of the whole and of legislative committees (e.g., they can both recommend the adoption of a bill), they are two distinctly separate entities. The committee of the whole is a parliamentary device for facilitating the legislative process in which all members of the house meet in the form of a committee. The legislative committees have a more limited function and are comprised of a smaller number of the house members. Both the parliamentary device of the committee of the whole and legislative committees have been in use in Congress from its inception. It is clear that the delegates to the Constitutional Convention understood that they were distinctly different types of committees. Its rules provided both for forming a committee of the whole and for forming smaller committees ranging in size from five to nine members. Proceedings and Debates of the Constitutional Convention of Idaho 1889, Vol. I, pp. 37-41, 52-53 (I.W. Hart ed.1912). Indeed, the Press Club admits that the committee of the whole and a legislative committee are two entirely different types of committees.

At the time the Constitution was drafted and adopted, the legislative process involved the work of three distinctly different groups: the house, the committee of the whole, and legislative committees. Those three groups were recognized in the rules of the territorial legislature that first convened in 1863. Article III, § 12, specifies that its provisions apply to “each house” and to “the committee of the whole” of each house, but it makes no mention of legislative committees. “It is a universally recognized rule of construction that, where a constitution or statute specifies certain things, the designation of such things excludes all others.” Local 1494 of Int’l Ass’n of Firefighters v. City of Coeur d'Alene, 99 Idaho 630, 639, 586 P.2d 1346, 1355 (1978), quoting Peck v. State, 63 Idaho 375, 380, 120 P.2d 820, 822 (1941). This rule of construction, which is typically stated in the Latin expressio unius est exclusio alterius, was first recited by this Court in Shoshone County v. Profit, 11 Idaho 763, 84 P. 712 (1906), and was recognized by the United States Supreme Court long before Idaho became a state, The Adeline, 9 Cranch 244, 3 L.Ed. 719 (1815).

“Our State Constitution is a limitation, not a grant of power, and the Legislature has plenary powers in all matters, except those prohibited by the Constitution.” Rich v. Williams, 81 Idaho 311, 323, 341 P.2d 432, 439 (1959). Because the Constitution is not a grant of power, there is no reason to believe that a Constitutional provision enumerating powers of a branch of government was intended to be an exclusive list. The branch of government would inherently have powers that were not included in the list. The converse is true, however, with a respect to provisions limiting power. When the framers drafted a provision expressly limiting certain powers, there is no reason to believe that they intended the limitation to be broader than they drafted it. The purpose of such provision is to define the limitations. It is not reasonable to assume that they intended to impose other, unstated limitations. Had they wanted to impose limitations in addition to those stated, they could easily have done so. Therefore, the rule of construction expressio unius est exclusio alterius applies to provisions of the Idaho Constitution that expressly limit power, Clayton v. Barnes, 52 Idaho 418, 16 P.2d 1056 (1932); Shoshone County v. Profit, 11 Idaho 763, 84 P. 712 (1906), but it does not apply to provisions that merely enumerate powers, Penrod v. Crowley, 82 Idaho 511, 356 P.2d 73 (1960); Eberle v. Nielson, 78 Idaho 572, 306 P.2d 1083 (1957). The provision at issue here is a limitation on the power of the legislature to close its proceedings. Thus, expressio unius est exclusio alterius applies as a rule of construction. Under this well-recognized rule of construction, Article III, § 12, does not apply to legislative committees because the drafters did not include such committees in its provisions. In fact, the Press Club correctly admits, “Significantly, the ability to close committee meetings was never discussed or raised as a concern by the constitutional delegates.” (Emphasis in original.) None of the delegates argued that legislative committee meetings should be either open or closed. That is simply not a matter they were concerned about. The drafters could have written Section 12 to require that the business of each house and of all committees shall be transacted openly and not in secret session, but it did not do so.

The Press Club contends that the phrase “business of each house” should be construed to include legislative committees. It argues that because each house utilizes legislative committees in order to function, the work of such committees is included in the phrase “business of each house.” There are three problems with this argument.

First, both houses also utilize the committee of the whole as part of the legislative process. If the “business” of each house was intended to include the work of all committees, then it would also include the committee of the whole, which is a committee. If the word “business” included the work of all committees, then there would have been no reason to expressly include the committee of the whole within the provisions of Article III, § 12. The reference to the committee of the whole would be mere surplusage. We should avoid an interpretation which would render terms of a constitution surplusage. Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1988).

Second, adopting the Press Club’s definition of “business” would create an inconsistency. Article III, § 10, states, “A majority of each house shall constitute a quorum to do business.” If legislative committees are included within the “business” of each house, then 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. Nobody contends that a majority of the members of each house are required to be present at meetings of legislative committees. There is certainly no indication that the framers of the Constitution thought that the business for which a quorum was required by Article III, § 10, included conducting legislative committees. For example, Rule 23 of the rules adopted by the Constitutional Convention to govern its proceedings provided, “A majority of members elected to the convention shall be necessary to constitute a quorum to do business.” Proceedings and Debates of the Constitutional Convention of Idaho 1889, Vol. I, p. 49 (I.W. Hart ed.1912). They obviously did not think the business that required a quorum to be present included the work of standing committees. There were sixty-four delegates, but only five to nine members of each standing committee. Id., pp. 38-41, Vol. II, p.2090.

To avoid that inconsistency, we would have to hold that the word “business” in Section 12 has a different meaning from the word “business” in Section 10. In Section 10, it would only refer to what occurs on the floor of the house when it is in session, while in Section 12 it would refer to what occurs anywhere in the legislative process, including in committee meetings when the house is in recess. However, provisions of the Constitution, insofar as they relate to the same subject matter, must be construed together. Idaho Tel. Co. v. Baird, 91 Idaho 425, 428, 423 P.2d 337, 340 (1967). There is nothing in the context of the two sections indicating that “business” in Section 10 must mean something different from “business” in Section 12.

Third, the argument is contrary to the history surrounding the adoption of Article III, § 12. The version originally approved by the delegates (First Version) permitted secret legislative sessions to enact legislation. Proceedings and Debates of the Constitutional Convention of Idaho 1889, Vol. I, p. 527 (I.W. Hart ed.1912). It stated, “The doors of each house and of the committee of the whole shall be kept open except in such cases as in the opinion of either house may require secrecy.” Mr. Standrod moved to strike that portion of the First Version that would permit secret legislative sessions, and that motion carried by a vote of thirty to seven. Id., Vol. II, pp. 1217, 1223. Section 12 then read, “The doors of each house and of the committee of the whole shall be kept open.” This version (Second Version) was later adopted. Id. at 1227. Before it was adopted, however, Mr. Parker proposed an amendment to add “at all hours when the legislature is in session,” which was defeated. Id. Mr. Claggett moved to add a proviso that the Senate could sit in secret session when acting on nominations made by the governor, but the delegates narrowly rejected that amendment by a vote of twenty ayes to twenty-four nays. Id. at 1227.

The delegates later struck the Second Version on motion of Mr. Pinkham. Id. at 1269-71. Mr. Pinkham was concerned that its wording made no sense. As he argued, “I will read the section as it now stands. ‘The doors of each house and of the committee of the whole shall be kept open’—kept open when? Kept open during the day or during the night or on Sundays or for what purpose? I can find no sense in it at all.” Id. at 1270. Mr. Ainslie then proposed the substitute (Current Version), which was adopted. Id. at 1271. The substitute offered by Mr. Ainslie was not proposed as an expansion of the scope of the Second Version. It was simply intended to improve the wording of the provision. The delegates had debated at length what legislative proceedings should be open to the public before adopting the Second Version. There was no similar debate concerning the adoption of the Current Version. In fact, Mr. Pinkham was the only delegate who offered any debate.

The Press Club and the dissent quote from statements made by delegates at the Constitutional Convention to argue that we should give Article III, § 12, a meaning broader than the language used in the provision. We cannot use the arguments of the delegates to expand the meaning of a constitutional provision beyond its wording. The delegates at the convention voted to approve and the citizens of Idaho voted to adopt the wording chosen for Article III, § 12, not the arguments of some of the delegates. See Keenan v. Pnce, 68 Idaho 423, 195 P.2d 662 (1948).

Throughout the debate concerning Article III, § 12, there was no discussion regarding whether legislative committee meetings should be open or closed to the public. The delegates quoted were arguing against permitting secret sessions of the legislature, not against closing meetings of legislative committees. To apply their arguments to an issue they were not even addressing is simply putting words in their mouths. For example, thirty delegates voted to ban secret legislative sessions, but only twenty-four voted to ban secret senate sessions during confirmation proceedings. What the vote would have been had the delegates been presented with the issue of requiring all legislative committee meetings to be open to the public is simply a matter of speculation. Only ten of the thirty-seven delegates who voted on the amendment to prohibit closed legislative sessions participated in the debate. Seven spoke in favor of the amendment, and three spoke against it. Words spoken by seven delegates regarding closed legislative sessions do not reflect how either they or the thirty other delegates would have voted regarding closed legislative committee meetings.

At the time of Idaho’s Constitutional Convention, legislative committee meetings were generally closed to the public. The public had no common-law right to attend meetings of government bodies. Society of Prof'l Journalists v. Secretary of Labor, 616 F.Supp. 569 (D.C.Utah 1985). The tradition in England was to hold legislative debate in secret and to prohibit publication of legislative proceedings, and that tradition was exported to colonial America. Id. Both the Continental Congress and the Constitutional Convention conducted their proceedings in secret. Id. The United States Senate began holding its sessions in public in 1794, Id., but it was not until the 1920’s that it opened confirmation proceedings to the public. In fact, Mr. Gray, a delegate to the Idaho Constitutional Convention, stated, “If I understand it, on confirmations and matters of that kind, they generally have secret sessions.” Debates of the Constitutional Convention of Idaho 1889, Vol. II, pp. 1217 (I.W. Hart ed.1912). The United States House did not open its sessions to the public until after the War of 1812. Society of Profl Journalists v. Secretary of Labor, 616 F.Supp. 569 (D.C.Utah 1985). Even after Congress opened its sessions to the public, its legislative committee meetings typically remained closed to the public. It was not until 1946 that Congress first acted to open its legislative committee meetings to the public, but even then they were closed during “executive sessions for marking up bills or for voting or where the committee by a majority vote orders an executive session.”¹

Idaho was the forty-third state in the nation. At the time Idaho became a state, no state constitution prohibited the legislature from closing legislative committee meetings. In only three states were the legislatures prohibited from holding secret sessions to adopt legislation. The constitutions of eleven states² did not place any limits at all on closing legislative proceedings to the public; the constitutions of twenty-eight states ³ provided for open legislative sessions, but permitted each house to close any sessions that, in its opinion, required secrecy; and the constitutions of three states⁴ required open legislative sessions, but permitted the senate to close its executive sessions.

Thus, at the time of the Idaho Constitutional Convention, legislative committee meetings were typically closed to the public. There is no reason to believe that the delegates were unaware of that fact. Had they intended to prohibit the legislature from closing all such committee meetings, one of the delegates would certainly have mentioned that issue when they were debating the particular proceedings that the legislature should be prevented from closing to the public.

The Press Club and amicus curiae also present various policy arguments as to why legislative committee meetings should always be open. We cannot use policy arguments to give a constitutional provision a meaning that is not consistent with its wording. Such policy reasons could certainly be considered by the legislature when deciding whether to permit its committee meetings to be closed. They may also support a constitutional amendment broadening the scope of Article III, § 12. We cannot use them, however, to vary the plain meaning of that constitutional provision.

Finally, amicus curiae argue that Article I, § 10, of the Constitution requires that legislative committee meetings be open. They rely upon the provision stating, “The people have the right ... to instruct their representatives____” According to amicus curiae, the right to instruct representatives must include the right to attend legislative committee meetings. Provisions of the Constitution apparently in conflict must be reconciled if at all possible. Engelking v. Investment Bd., 93 Idaho 217, 458 P.2d 213 (1969). If there is an irreconcilable conflict, specific provisions prevail over general provisions. Id. Article I, § 10, does not specify the manner in which the people have the right to instruct their representatives. It does not, by its terms, purport to require that legislative committee meetings be open. Even if we were to conclude that its provisions conflicted with those of Article III, § 12, the latter, being specific, would prevail.

Using the recognized rules of construction, Article III, § 12, does not apply to legislative committee meetings. Where 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. We cannot exercise any powers properly belonging to the legislature, Idaho Const. Art. II, § 1, and the powers of each house include the power to “determine its own rules of proceeding,” Idaho Const. Art. Ill, § 9.

The Press Club also seeks an award of attorney fees under the private attorney general doctrine. Because it did not prevail on this appeal, it cannot qualify for an award of attorney fees under that doctrine. Uhl v. Ballard Med. Prods., Inc., 138 Idaho 653, 67 P.3d 1265 (2003).

III. CONCLUSION

We affirm the judgment of the district court, and award costs on appeal to the respondents.

Chief Justice SCHROEDER and Justice TROUT concur.

1 . The Legislative Reorganization Act of 1946, § 133, United States Code Congressional Service, Laws of 79th Congress, Second Session, January 14 to August 2, 1946 (St. Paul, Minn: West Publishing Co., 1946), p. 796, provided, "All hearings conducted by standing committees or their subcommittees shall be open to the public, except executive sessions for marking up bills or for voting or where the committee by a majority vote orders an executive session."

2 . Georgia, Kansas, Kentucky, Louisiana, Maine, Massachusetts, New Jersey, North Carolina, Rhode Island, Virginia, and West Virginia.

3 . Alabama, Arkansas, California, Colorado, Connecticut, Delaware, Illinois, Indiana, Iowa, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New York, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Vermont, Washington, and Wisconsin.

4 . Florida, Nevada, and Texas.