Bradbury v. City of Lewiston

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 49667
JOHN BRADBURY, )
)
Petitioner-Appellant, ) Lewiston, April 2023 Term
)
v. ) Opinion filed: July 10, 2023
)
CITY OF LEWISTON, ) Melanie Gagnepain, Clerk
a municipal corporation, )
)
Respondent. )
Appeal from the District Court of the Second Judicial District of the State of Idaho,
Nez Perce County. Richard D. Greenwood, Senior District Judge.
The judgment of the district court is affirmed in part and reversed in part.
John Bradbury, Lewiston, Appellant Pro Se. John Bradbury argued.
Clements, Brown & McNichols, PA, Lewiston, for Respondent. Bentley Stromberg
argued.
MOELLER, Justice.
This appeal stems from a lawsuit brought by then-city council member, John Bradbury, to
contest whether the City of Lewiston (“the City”) had been collecting excessive utility fees and
improperly spending municipal funds. Bradbury filed a petition against the City seeking a
declaratory judgment and equitable relief. He now appeals the district court’s dismissal of most of
his claims at summary judgment and raises additional errors for appellate review. For the following
reasons, we affirm the decision of the district court in part and reverse in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
Bradbury is a resident of the City of Lewiston and was an elected member of its city
council. While serving in that capacity, he filed a petition alleging nine causes of action concerning
various City funds and services, including those related to water, sanitation, wastewater, city
streets, the library, and the municipally-owned Bryden Canyon Golf Course (“Bryden Canyon”).
Several of these legal challenges overlap and fall under four main activities: (1) interdepartmental
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fund transfers from sanitation to finance a new library building and a new irrigation system at
Bryden Canyon; (2) the use of sanitation and wastewater fees to repair city streets; (3) the City’s
payments to private entities for tourism and economic development; and (4) irrigation water
provided to Bryden Canyon.
The City operates three utility enterprise funds relevant to this case: one provides and
distributes water (the water utility); another collects and treats sewage (the wastewater utility); and
a third collects and disposes of garbage, recyclables, and vegetation waste (the sanitation utility).
Each utility charges fees to ratepayers who use these respective services. Additionally, the City
maintains a “golf course” fund for the operation of Bryden Canyon and a “library fund” for public
library services. The City maintains a reserve in each of these respective funds sufficient to conduct
their operations for a minimum of three months. Where the City anticipates greater future need, it
sometimes maintains even higher reserves.
1. Bryden Canyon Golf Course and the City’s Library
Bryden Canyon is a municipal golf course that was constructed with City funds between
1972 and 1974. It was built on a parcel of land leased from the Lewiston Airport. Since 1979, the
City has leased the facility to a private entity that oversees operation of the golf course. The lease
terms include an agreement that the City will provide irrigation water to the golf course as needed.
In exchange, the City receives lease payments and a percentage of the total revenues generated by
the golf course.
In 2010, the irrigation system at Bryden Canyon failed and required replacement. The city
council accepted a bid for a replacement system, but the golf course fund lacked adequate funds
to pay for its installation. As a result, the City transferred $1,138,713 from the sanitation utility to
the golf course fund, to be repaid with interest over a 30-year period. This transfer was later
refinanced into a 20-year repayment plan. No additional funds were raised or collected from
ratepayers to carry out this interdepartmental transfer.
The City also owns a library that is governed by an independent board. In 2012, the City
concluded that a new public library should be constructed. Because the library fund lacked
sufficient capital for a new building, the City transferred $800,000 from the sanitation utility to
the library fund, to be repaid with interest over a 20-year period. No rates were raised, nor were
additional funds collected, to make the interdepartmental transfer possible. On July 12, 2021, the
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city council voted unanimously to liquidate and repay the remaining balance on the library fund
transfer.
2. Street Impact Fees
The City provides curbside garbage pickup services to all City residents. About twenty-
five years ago, the City reviewed its existing policies concerning cost allocation across its
enterprise funds. It became concerned about the costs of street maintenance and repair, particularly
in light of research showing that repeated heavy sanitation vehicle traffic can accelerate
deterioration and wear to roads. The City determined to account for the excess wear and tear on
the pavement from sanitation vehicles by assessing an annual charge to the sanitation fund. It was
called a “street impact fee” and was equal to 7% of the sanitation fund’s annual expenditures
related to heavy sanitation vehicles.
In 2012, the City considered assessing the street impact fee to its water and wastewater
funds as well. Wastewater and water services became a similar concern and point of focus for cost
allocation “because maintenance on existing water and sewer lines regularly requires street
cuts,”—i.e., cutting or removing sections of the street to access the underground lines—which
shortens the lifespan of a road surface. Thus, the City set an additional street impact fee at 2% of
total annual revenues in the water and wastewater funds. Bradbury alleged that since the additional
fee was imposed, these street impact fees have diverted $935,000 from the water fund; $990,000
from the wastewater fund; and $3,483,668 from the sanitation fund. Dan Marsh, the City’s chief
financial officer, declared that these fees were consistent and comparable to charges imposed by
other municipalities to allocate costs.
3. Payments to Private Entities: Valley Vision and Visit Lewis-Clark Valley
Bradbury alleges that the City made improper donations to two local businesses: Valley
Vision and Visit Lewis-Clark Valley. The record shows that the City pays Valley Vision $40,000
per year “for assistance in recruiting and retaining businesses, assisting with City workforce
development and assistance with the creation of a community strategic plan.” The City also pays
Visit Lewis-Clark Valley $15,000 per year for “tourism activities within the City that benefit the
general public and to act as the City’s tourism liaison and also to develop an economic
development tourism strategy.” The City claims that both businesses provide regular reports to the
City on their promotional services and other activities performed on behalf of the City.
4. Water Services to Bryden Canyon Golf Course
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The City’s water utility provides services to most of its residents. Lewiston Orchards
Irrigation District (“LOID”) provides water services to other residents living in the areas not served
by the City. Bradbury does not receive water services from the City. At all times relevant to this
litigation he has been a LOID water customer.
Bryden Canyon has obtained water from both the City and LOID over the years. For a few
decades following its initial operations, Bryden Canyon purchased surplus irrigation water from
LOID at competitive rates. This continued through the early 1990s until the supply was deemed
too unreliable. In 1998, the City constructed a well and pumping station to serve Bryden Canyon.
It was funded in part by a special assessment fee collected from golf course users, which ultimately
paid for approximately 40% of the well’s total cost.
From 1998 to 2012, Bryden Canyon’s use of the well water was not metered. The City
considered the golf course fund to be a part owner of the well, and consequently “believed that it
would be improper to charge the Golf Fund anything other than a proportionate share of the costs
of operation, maintenance and depreciation of [the well].” In 2000, the City Public Works
Department calculated that cost to be $27,600 per year, with an annual 2% increase to account for
inflation. The City has since allocated that annual sum from the golf course fund to its water
enterprise fund in bi-annual payments.
Despite the installation of a new irrigation system in 2010, this flat water rate has continued
to be paid towards the “maintenance, upkeep and depreciation of” the well and “in exchange for
all irrigation water needs of the municipal golf course.” The city council even amended the
Lewiston City Code in 2019 to specifically permit this flat fee arrangement with Bryden Canyon
for irrigation water, citing Lewiston City Code section 36.5-5(c). The amended city code also
provides the city council with discretion to allocate funds from the City’s general fund to the water
fund “to offset, in full or in part, the costs associated with providing water for the public purposes”
of Bryden Canyon or other municipal water needs. LCC § 36.5-5(d). Today, the City continues to
provide water to Bryden Canyon in exchange for lease payments, and it transfers approximately
$36,000 per year from the golf course fund to the City’s water fund “for water provided to the golf
course.” The City’s water fund has also bought out the golf course fund’s ownership share in the
well to help pay down the earlier transfer from the sanitation fund.
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5. Procedural History
Bradbury first raised his concerns of illegal City activities in a city council meeting held
on August 24, 2020. He claims he moved to amend the budget “to purge the illegal acts and . . .
resolve the problems,” but the other council members refused to second his motion. As a result,
Bradbury filed this action against the City on March 29, 2021. He stated that he brought the petition
“in his capacity of City Councilor and in his capacity [as] a utility ratepayer on his own behalf and
the behalf of all residents of Lewiston rate payers.” In his petition, he asked the district court to
declare the City’s conduct, as alleged in the various causes of action, to be illegal. He also asked
the court to order the City to repay “the loans to the utilities and order funds repaid to ratepayers
for the excess fees collected.”
The City filed a motion to dismiss the petition, arguing that: (1) Bradbury lacked standing
to bring his claims, (2) the district court lacked authority to grant relief, and (3) several claims
were time barred. The City also filed a motion to strike because Bradbury’s pleadings included
confidential research memoranda prepared by the city attorney and submitted to the Lewiston city
manager. The City argued that these materials were privileged communications between an
attorney and client. The City did not object to Bradbury’s submission of other materials from the
City’s records. The district court granted the City’s motion to strike in a bench ruling, ordering the
documents to be stricken from the record but retained under seal for any potential appellate review.
Bradbury filed a motion asking the district court to reconsider its ruling on the motion to
strike, which the district court denied. The court determined that the memoranda “were made for
the purpose of facilitating the rendition of professional legal services by [the City’s attorney] to
the City.” Thus, the City could assert the privilege afforded to it under Idaho Rule of Evidence
502. The district court further clarified that only the communication from the city attorney to the
city manager was privileged.
Next, the district court denied the City’s earlier motion to dismiss. While the court agreed
with the City that Bradbury lacked legislative standing to bring a suit against the City as a member
of the city council, it determined that Bradbury could bring a challenge to unlawful expenditures
as a ratepayer. The court also concluded that the remaining issues were “better left to trial on the
merits or summary judgment on a better developed record.” Following these decisions, the court
set a schedule for filing summary judgment motions and ordered briefing.
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At that point, Bradbury again attempted to introduce the privileged memoranda from the
city attorney by filing another motion to unseal the documents. He also filed the sealed
documents—in an unsealed attachment—to his amended brief in support of his motion for
summary judgment. The City filed a second motion to strike the privileged materials from the
court record, which the district court granted. The court subsequently ordered that Bradbury’s
amended brief and attachments would be sealed in their entirety.
After the parties filed cross-motions for summary judgment, Bradbury filed a motion to
intervene as counsel on behalf of Mark Edelblute—a City resident and water ratepayer. The City
opposed the motion to intervene, arguing that this was a belated attempt by Bradbury to cure a
jurisdictional defect. The district court denied Edelblute’s motion from the bench on finding it
untimely. It then formally denied Bradbury’s earlier motion to unseal the privileged documents
and attachments in the record.
On reviewing the cross-motions for summary judgment, the district court made various
conclusions on Bradbury’s nine causes of actions:
• First, the district court concluded that the interdepartmental transfers of funds that paid for
the new irrigation system and library, respectively, were not unconstitutional debts or
violations of Idaho Code section 63-1311, nor were they unconscionable. Instead, the court
found that the City lawfully transferred reserve funds as a loan from one city account to
another to meet a municipal need.
• Next, the district court addressed the street impact fees collected from the water,
wastewater, and sanitation funds. The court agreed with Bradbury that these fees amounted
to an unconstitutional and blanket tax on ratepayers for street repairs. The district court
granted Bradbury’s motion for summary judgment on this single cause of action. However,
the court also determined that Bradbury only brought the lawsuit in his individual capacity.
Because he failed to bring an appropriate class action, Bradbury could not argue that all
ratepayers were entitled to a refund. Additionally, the court held that Bradbury’s failure to
provide a notice of claim for damages under the Idaho Tort Claims Act also barred his
individual recovery.
• The district court then examined the City’s payments to Valley Vision and Visit Lewis-
Clark Valley. It concluded that the record lacked any evidence that the payments were
donations, as Bradbury contended; rather, the record evidenced that the City held
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contractual relationships and ongoing business agreements with both entities to promote
economic development and tourism.
• On the final causes of action, the district court concluded that because Bradbury is not a
City water fund ratepayer, he lacked standing to challenge (1) the City’s allocation of water
to Bryden Canyon and (2) the City’s ordinances that permitted a flat-fee agreement
between them. The district court did not directly address the merits of Bradbury’s claims
regarding misuse of City water operations in connection with Bryden Canyon.
Based on these findings and conclusions, the district court granted and denied the parties’ summary
judgment motions in part. It granted Bradbury’s motion concerning the unconstitutional street
impact fees, but otherwise granted the City’s motion for summary judgment and dismissed his
remaining causes of action. The district court issued a declaratory judgment that declared the street
impact fees an illegal tax and prohibited the City from imposing and collecting such charges. The
rest of Bradbury’s claims were dismissed with prejudice.
The City filed a motion to reconsider on the issue of street impact fees, arguing that new
circumstances rendered the street impact fees to the sanitation fund a moot issue. During the course
of litigation, the City approved a new franchise agreement with a private sanitation company “that
the City has long contracted with” to perform garbage collection and waste-hauling services. This
revised agreement included a franchise fee. When the agreement became effective December 1,
2021, the City discontinued the street impact charges previously assessed to the sanitation fund.
The City stated that it had no plans to reinstate the charges. As for the street impact fees charged
to the water and wastewater funds, the City asked the district court to clarify its decision. The City
wanted to know if it would be “prevent[ed] . . . from re-imposing a similar charge in the future
[if]it can be demonstrated that ratepayers are ultimately asked to pay nothing more than their pro-
rata share of repairing street cuts made necessary by the utility services they actually have
consumed.”
Bradbury opposed this motion, arguing that the City had its chance to make its record. He
then asked the district court for leave to depose Dan Marsh, the City’s financial advisor, for further
discovery. The district court denied both of these motions. It refused to “clarify” its decision by
determining whether any new procedures to charge the wastewater utility for street repairs could
be legal. Because the question was not framed in the pleadings, the court declined to express an
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opinion on the issue on reconsideration. Aside from clarifying a typographical error, the district
court stood by its earlier decision in its entirety.
Bradbury timely appealed the adverse rulings on summary judgment. The district court
then issued its decision regarding attorney fees. While each party sought attorney fees and costs,
the district court concluded there was no prevailing party in the action given the mixed results. As
for the City, the district court reasoned that it would not be entitled to attorney fees and costs even
if it had been the prevailing party at summary judgment. The court determined that the City could
not establish that Bradbury pursued the action “without a reasonable basis in fact or law,” as is
required under Idaho Code section 12-117. The district court also concluded that Bradbury’s claim
for attorney fees failed on two additional grounds: (1) he could not establish a legal precedent for
attorney fees under the private attorney-general doctrine where he was a pro se litigant, and (2) he
failed to meet the requirements of Idaho Rule of Civil Procedure 54. Accordingly, the district court
declined to award any attorney fees or costs to either side.
6. The Sealed Exhibits
Pertinent to this appeal is an issue concerning sealed exhibits and whether they are
privileged materials. These documents consist primarily of two research memoranda authored by
the city attorney and addressed to the city manager. Both memoranda have “Attorney-Client
Privilege” stamped across the top of the first page, and each discuss the legality of the street impact
fees charged to the City’s utility funds amongst other issues.
Bradbury’s amended petition, along with its attached evidentiary exhibits, were submitted
as one document to the district court. Because the court concluded it was “not practical to seal only
that portion of the record containing the offending documents,” it sealed Bradbury’s submission
in its entirety. The sealed portion of the record includes much of Bradbury’s briefing and
evidentiary exhibits, including: an excerpt from the deposition of Dan Marsh; the services
agreement between the City and Visit Lewis-Clark Valley; the services agreement between the
City and Valley Vision; an email detailing the amount and costs of Bryden Canyon’s irrigation
water; documents detailing the interdepartmental transfers/loans between the sanitation, library,
and golf course funds; the city attorney’s research memoranda to the city manager; and additional
documents.
II. STANDARD OF REVIEW
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When this Court reviews a summary judgment ruling, we apply the same standard used by
the district court in ruling on that motion. Hill-Vu Mobile Home Park v. City of Pocatello, 162
Idaho 588, 592, 402 P.3d 1041, 1045 (2017). “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). In reaching this determination, we liberally construe
all disputed facts, and draw all reasonable inferences in the record, in the light most favorable to
the party opposing the motion. Hill-Vu, 162 Idaho at 592, 402 P.3d at 1045; Infanger v. City of
Salmon, 137 Idaho 45, 47, 44 P.3d 1100, 1102 (2002). “If the evidence reveals no disputed issues
of material fact, then only a question of law remains, over which this Court exercises free review.”
Hill-Vu, 162 Idaho at 592, 402 P.3d at 1045.
This Court similarly reviews a trial court’s decision to grant or deny a motion for
reconsideration using the same standard of review used by the lower court in ruling on the motion.
Ciccarello v. Davies, 166 Idaho 153, 159, 456 P.3d 519, 525 (2019). As we have explained:
If the decision was within the trial court’s discretion, we apply an abuse of
discretion standard. On the other hand, when reviewing the grant or denial of a
motion for reconsideration following the grant of summary judgment, this Court
must determine whether the evidence presented a genuine issue of material fact to
defeat summary judgment.
Id. (quoting Fragnella v. Petrovich, 153 Idaho 266, 276, 281 P.3d 103, 113 (2012)). Because this
case involved both a summary judgment motion and a motion for reconsideration following
summary judgment, the question before us is whether the new evidence presented a genuine issue
of material fact to avoid summary judgment. See Fragnella, 153 Idaho at 276, 281 P.3d at 113.
III. ANALYSIS
This appeal presents constitutional and statutory challenges to certain City activities,
including interdepartmental transfers of its enterprise funds and annual payments to two private
entities. There is also a question of standing over the right to challenge the City’s allocation of
irrigation water to Bryden Canyon. Bradbury contends that Lewiston has a “pattern of using [its]
utilities as a cash cow to pay for projects unrelated to the services they are created to provide.” The
City maintains that the district court correctly granted it summary judgment on all claims except
the street impact fees. While it voices disagreement with the district court’s conclusion that the
street impact fees were an illegal tax, the City “does not challenge that ruling.” Beyond these
claims of illegal activities over municipal funds are additional issues of evidence and attorney fees.
Thus, we will address the issues raised on appeal as four broad categories: (A) the district court’s
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refusal to unseal privileged materials, (B) Bradbury’s constitutional and statutory challenges to the
City’s activities, (C) whether there was error in the district court’s decision to not award attorney
fees below, and (D) whether either party is entitled to attorney fees on appeal.
A. The district court did not abuse its discretion in refusing to unseal privileged attorney-
client materials.
Bradbury argues that the city attorney’s memoranda, which discussed the potential
illegality of city practices, are not privileged materials because they were not prepared to provide
professional legal services in confidentiality. Bradbury argues in the alternative that, even if the
materials were privileged, the privilege was waived when the city attorney disclosed the
information to a third party. The City responds by noting that the district court correctly determined
that disputed exhibits submitted by Bradbury were privileged materials between the City and its
attorney. Moreover, since it is the City’s privilege to assert, it has clearly not been waived.
When this Court reviews a lower court’s decision regarding sealing or redacting judicial
records, it reviews for an abuse of discretion. State v. Turpen, 147 Idaho 869, 872, 216 P.3d 627,
630 (2009); Doe v. State, 153 Idaho 685, 687, 290 P.3d 1277, 1279 (Ct. App. 2012). Thus, this
Court considers whether the trial court “(1) correctly perceived the issue as one of discretion; (2)
acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by the exercise of
reason.” Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018). While not
expressly stated, Bradbury seems to contest whether the district court acted consistently with the
legal standards applicable to it. Thus, the inquiry before us is whether the district court correctly
determined the memoranda were confidential communications protected by attorney-client
privilege.
The Idaho Rules of Civil Procedure permit broad discovery of matters “relevant to any
party’s claim or defense,” so long as it is not privileged. I.R.C.P. 26(b)(1). If privileged, the matter
is protected from discovery. See id.; I.R.E. 502. The burden of showing that information is
privileged falls on the party asserting the privilege. Kirk v. Ford Motor Co., 141 Idaho 697, 704,
116 P.3d 27, 34 (2005).
The general rules of attorney-client privilege are defined in Rule 502 of the Idaho Rules of
Evidence, which states:
A client has a privilege to refuse to disclose and to prevent any other person from
disclosing confidential communications made for the purpose of facilitating the
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rendition of professional legal services to the client which were made (1) between
the client or the client’s representative and the client’s lawyer or the lawyer’s
representative, (2) between the client’s lawyer and the lawyer’s representative, (3)
among clients, their representatives, their lawyers, or their lawyers’ representatives,
in any combination, concerning a matter of common interest, . . .
I.R.E. 502(b). A “client” is defined as “a person, public officer, or corporation, association, or
other organization or entity, either public or private, who is rendered professional legal services
by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from
the lawyer.” I.R.E. 502(a)(1). A communication is “confidential” if it is “not intended to be
disclosed to third persons other than those to whom disclosure is made in furtherance of the
rendition of professional legal services to the client or those reasonably necessary for the
transmission of the communication.” I.R.E. 502(a)(5). See also Kirk, 141 Idaho at 704, 116 P.3d
at 34.
Here, the district court correctly determined that the memoranda are privileged. The City
is undoubtedly a client and the city attorney is its lawyer. The city attorney provided professional
legal services to the City in the form of two research memoranda that were submitted directly to
the city manager. The communications were conspicuously marked with a stamp designating them
“attorney-client privilege” and each discussed pertinent legal issues concerning the City. As the
district court reasoned, “[t]he letter/memos of May 3, 2017 and March 19, 2018 were made for the
purpose of facilitating the rendition of professional legal services by [the city attorney] to the City.”
Importantly, the district court found that only the two memoranda exchanged between the city
attorney and city manager were privileged. The court did not completely foreclose Bradbury from
attempting to make his point in other ways, noting: “The fact that the lawyer’s statements are
privileged does not mean that any facts recited in the communication cannot be proven by other
means.” Indeed, the court recognized that the underlying facts referenced in the memoranda were
not privileged information. Despite this ruling, Bradbury repeatedly attempted to reintroduce the
privileged memoranda without court approval, attaching them as evidence to various briefs and
documents without submitting them under seal. The court eventually sealed these filings in their
entirety to protect the privileged information.
Bradbury contends that the memoranda cannot qualify as privileged because the City did
not seek the attorney’s advice or prompt the research; the city attorney apparently conducted this
research and prepared the memoranda to the city manager on her own initiative. However,
Bradbury points to nothing in Idaho law to support his position. The Idaho Rules of Evidence do
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not require a confidential communication to be based upon a client’s inquiry. In fact, an attorney
is often called upon to give proactive legal advice to clients in order to protect them from legal
hazards that have not yet even occurred to the client. Therefore, a “client has a privilege to refuse
to disclose . . . confidential communications made for the purpose of facilitating the rendition of
professional legal services . . .” I.R.E. 502(b) (emphasis added). Of course, professional legal
services are often prompted by a client’s specific questions and pursuit of legal advice. But to
define a confidential communication as predicated on a client’s inquiry alone would eliminate a
large swath of privileged attorney-client communications and serve as a disincentive for lawyers
to provide effective, proactive legal representation. As happened here, an attorney may simply
seek to provide current research and guidance to a client when new information becomes available.
Bradbury’s argument would add a requirement for asserting attorney-client privilege that does not
currently exist in the Idaho Rules of Evidence and which is unwarranted.
We also do not agree that a waiver of the privilege occurred here. Bradbury’s appellate
briefing alleges there was a waiver, but he does not specify how the city attorney “disclosed” or
“published” the materials, nor does he specify the identity of the third parties. Even when an issue
is explicitly set forth in the party’s brief, we will not consider an issue that “is only mentioned in
passing and not supported by any cogent argument or authority.” Dep’t of Fin., Sec. Bureau v.
Zarinegar, 167 Idaho 611, 622, 474 P.3d 683, 694 (2020). Such is the case here where Bradbury
alleges waiver but does not specify how, when, or to whom disclosure of the memoranda occurred.
More importantly, it cannot logically be inferred that the City has waived its privilege where (1)
nothing in the record indicates that it has waived its privilege previously and (2) it has consistently
asserted its privilege throughout these proceedings.
Accordingly, we affirm the district court’s conclusion that the memoranda contained
privileged attorney-client communications and that Bradbury’s waiver argument is not properly
supported. The City, as a client, had the privilege to refuse to disclose and to prevent any other
person from disclosing its confidential attorney/client communications. I.R.E. 502(b). Therefore,
we conclude that the district court applied the correct legal standards applicable here and did not
abuse its discretion in keeping the memoranda sealed.
B. Bradbury has failed to show that the City’s actions were unconstitutional or
amounted to unlawful conduct.
Below, Bradbury raised nine causes of action in his petition for declaratory and equitable
relief filed with the district court. While he prevailed in his claim that the street impact fees were
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an illegal tax by the City, his remaining eight claims were all dismissed on summary judgment.
Bradbury appeals the dismissal of his remaining claims, as well as the district court’s determination
that a refund of the illegal fees was not an appropriate remedy. The City has not appealed any of
the district court’s decisions. Accordingly, we must determine whether the district court correctly
awarded summary judgment to the City on Bradbury’s remaining challenges. Almost every issue
contemplates whether the City’s actions concerning certain municipal funds violated either the
Idaho Constitution, a provision of the Idaho Code, or were otherwise unlawful. In the matter of
Bryden Canyon’s irrigation water, this Court must make a determination of whether Bradbury has
standing to challenge the water allocation and flat-fee arrangement. We will address each issue in
turn.
1. The City’s interdepartmental transfers of funds did not violate Article VIII, section 3 of
the Idaho Constitution.
The first three issues raised by Bradbury address two interdepartmental fund transfers made
by the City: first, when the City transferred $1,138,713 from the sanitation utility fund to the golf
course fund for construction of a new irrigation system at Bryden Canyon; and second, when the
City transferred $800,000 from the sanitation fund to its library fund to purchase and remodel a
new building for public library services. Bradbury contends that these transfers violated Article
VIII, section 3 of the Idaho Constitution by incurring a debt that exceeds a year’s revenue without
approval by a majority vote, and that the transfers do not fall within the Constitution’s exception
for “ordinary and necessary expenditures.” The City responds that Article VIII, section 3 “as
interpreted by this Court, has no plausible application to either of the transfers challenged here”
because interdepartmental transfers of existing municipal funds are “plainly permitted” by Idaho
Code section 50-1014. The essence of both sides’ arguments is reflected in the language the parties
use to describe these transactions. In its words, the City refers to these transactions as “transfers,”
while Bradbury insists they are “loans.” There is no dispute that both transactions were completed
without submission to the voters for approval. Accordingly, we must address whether these
transfers unconstitutionally incurred a debt upon the City.
The Idaho Constitution provides that municipalities may not incur certain debts or
liabilities without first submitting the proposed expenditure to the voters for supermajority
approval in a special election. Hoffman v. City of Boise, 168 Idaho 782, 784, 487 P.3d 717, 719
(2021). As provided in Article VIII, section 3 of the Idaho Constitution:
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No county, city, board of education, or school district, or other subdivision of the
state, shall incur any indebtedness, or liability, in any manner, or for any purpose,
exceeding in that year, the income and revenue provided for it for such year,
without the assent of two-thirds of the qualified electors thereof voting at an
election to be held for that purpose[.]
An exception, known as the “proviso clause,” provides that no voter approval is required if the
expenditure is for “ordinary and necessary expenses authorized by the general laws of the state.”
IDAHO CONST. art. VIII, § 3. See also City of Challis v. Consent of Governed Caucus, 159 Idaho
398, 400–01, 361 P.3d 485, 487–88 (2015). The words “ordinary and necessary” are to be read in
the conjunctive. Challis, 159 Idaho at 401, 361 P.3d at 488.
The purpose of Article VIII, section 3 is to protect Idaho’s voters and ensure that a local
government operates within its available revenue. This Court has held that Article VIII, section 3
was designed to “protect taxpayers and citizens of political subdivisions . . . who would bear the
consequences of the subdivision incurring excessive indebtedness.” Hoffman, 168 Idaho at 785,
487 P.3d at 720 (quoting Koch v. Canyon Cnty., 145 Idaho 158, 162, 177 P.3d 372, 376 (2008)).
Thus, this section of the Idaho Constitution requires local governments to “operate on a pay-as-
you-go basis, unless voters approve otherwise.” Id.The Idaho Constitution is imbued with the spirit of economy, and in so far as
possible it imposes upon the political subdivisions of the state a pay-as-you-go
system of finance. The rule is that, without the express assent of the qualified
electors, municipal officers are not to incur debts for which they have not the funds
to pay. Such policy entails a measure of crudity and inefficiency in local
government, but doubtless the men who drafted the Constitution, having in mind
disastrous examples of optimism and extravagance on the part of public officials,
thought best to sacrifice a measure of efficiency for a degree of safety.
Williams v. City of Emmett, 51 Idaho 500, 505, 6 P.2d 475, 476 (1931) (citation omitted).
As to its interdepartmental transfers of funds, the City reasons that Article VIII, section 3
is meant to prohibit long-term indebtedness or liability to third parties. The district court agreed
with this view. It is true that many of the cases this Court has addressed over the last century
involved challenges to loans or contracts between a political subdivision and a third party (private
or governmental). E.g., Challis, 159 Idaho at 399, 361 P.3d at 486 (contracting with a private
engineering firm to repair the city’s drinking water distribution system); City of Idaho Falls v.
Fuhriman, 149 Idaho 574, 575, 237 P.3d 1200, 1201 (2010) (entering a 17-year power sales
agreement with the United States, Department of Energy, acting by-and-through the Bonneville
Power Administration); Koch, 145 Idaho at 159–60, 177 P.3d at 373–74 (leasing real property
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from a private trust to construct a jail and other county facilities). However, we have also addressed
challenges to a local government’s internal operations and funding. E.g., Hoffman, 168 Idaho at
783, 487 P.3d at 718 (city ordinances allocating tax increment financing to the city’s urban renewal
agency); Reynolds Const. Co. v. Twin Falls Cnty., 92 Idaho 61, 66, 437 P.2d 14, 19 (1968)
(challenging the county commissioners’ transfer of general funds to a building fund).
In situations where a party raised the constitutional challenge, we first evaluated whether
an expenditure creates the type of liability with which Article VIII, section 3 is concerned. See
Hoffman, 168 Idaho at 785, 487 P.3d at 720. This corresponds with the historically broad
application of Article VIII, section 3. The Framers used specific terminology, such as “liability”
and “indebtedness,” “to cover all kinds and character of debts and obligations for which a city may
become bound, and to preclude circuitous and evasive methods of incurring debts and obligations
to be met by the city or its inhabitants.” Vill. of Moyie Springs v. Aurora Mfg. Co., 82 Idaho 337,
344, 353 P.2d 767, 771 (1960) (quoting Feil v. City of Coeur d’Alene, 23 Idaho 32, 50, 129 P. 643,
649 (1912)).
The key question here is the applicability of Article VIII, section 3. As noted, the Idaho
Constitution prohibits a local government from incurring “any indebtedness, or liability, in any
manner, or for any purpose, exceeding in that year, the income and revenue provided for it for such
year,” without approval from a supermajority of voters in a special election. IDAHO CONST. art.
VIII, § 3. Yet it does not apply to every budget decision and expenditure; there must be some
“indebtedness, or liability” to trigger Article VIII, section 3’s application. See Hoffman, 168 Idaho
at 786, 487 P.3d at 721. As we articulated in Hoffman:
. . . simply because a decision may affect the City’s budget in the future does not
mean it is a liability that must be submitted to voters for approval under the Idaho
Constitution. To adopt such an interpretation of article VIII, section 3 would
radically expand the scope of the section to apply to nearly any action by a
government subdivision.
Id. See also In re Boise Cnty., 465 B.R. 156, 177 (Bankr. D. Idaho 2011) (“As indicated by Butler
and Lloyd, merely changing the form of an already existing indebtedness or liability does not
implicate Idaho Constitution, article VIII, § 3. Consequently, any application of article VIII, § 3,
must be to the initial indebtedness or liability.”).
An additional precedent is instructive in how we previously dealt with an interdepartmental
transfer of money. In Reynolds Construction, Co. v. Twin Falls County, the county commissioners
adopted a resolution to appropriate $140,000 from the county’s general reserve and “supplement
15
thereto to be designated as the Building Budget.” 92 Idaho at 63, 437 P.2d at 16. This transfer was
completed under a declaration of emergency to construct a courthouse annex to provide necessary
accommodations for a new district judge who would have a resident chambers in Twin Falls,
Idaho. Id. A collective group of corporations, partnerships, and individual business owners
challenged the courthouse construction as an illegal expenditure of funds. Id. at 62, 437 P.2d at 15.
In its analysis, this Court determined that both constitutional and statutory law governed and placed
different limitations on how the county could fulfill its duty to provide a necessary courthouse. Id.
at 66, 437 P.2d at 19. This Court explained, that the “county commissioners . . . are limited in
fulfillment of this duty to the extent that they cannot incur any indebtedness or liability in any year
in excess of revenue provided (Idaho Const. Art. 8, [§] 3 and I.C. [§] 31-1605), and they cannot
transfer any money from one fund to another, except in cases expressly provided and permitted by
law (I.C. [§] 31-1502).” Id. Where “current funds [were] to be expended for such purpose, such
funds must be budgeted, and expenditures made within these limits (I.C. [§] 31-1605).” Id.
The analysis in Reynolds is instructive. This Court separated the application of Article VIII,
section 3 from the statutory grounds that governed interdepartmental fund transfers. This
demonstrates that there is a difference between a local government taking on indebtedness to a
third party and that government making an internal transfer of money to a different fund. This
Court’s analysis also indicates that an internal transfer does not inherently create a debt or liability
with which Article VIII, section 3 is concerned. As stated by the Reynolds Court, statutes control
internal transfers: “they cannot transfer any money from one fund to another, except in cases
expressly provided and permitted by law (I.C. [§] 31-1502).” Id.
Here, we agree with the district court that the challenged activities were proper
interdepartmental transfers rather than loans. While the City characterized these internal transfers
as “loans” in some of its bookkeeping, they were, in effect, transfers from one of the City’s funds
to another. Importantly, these transfers did not incur an obligation or liability that exceeded the
revenues already provided for that year. The City already had the revenue, albeit in a different
account. Additionally, the transfers did not create a liability with any third party—governmental
or private.
Idaho law permits a municipality to “transfer any money from one fund to another” where
“expressly provided and permitted by law.” See Reynolds, 92 Idaho at 66, 437 P.2d at 19; I.C. §
50-1014. The Idaho Code specifically permits “[t]he city council of the cities” to “transfer an
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unexpended balance in one fund to the credit of another fund,” I.C. § 50-1014, and makes no
distinction between the types of funds that can be transferred. We agree with the district court that
these internal transfers did not create the debt or liability contemplated by Article VIII, section 3
of the Idaho Constitution. Indeed, Idaho’s statutory framework corresponds with the majority rule
across jurisdictions that “the allocation of net profits from a municipally owned and operated utility
enterprise to purposes other than those connected with the enterprise itself is permissible in the
absence of statutory prohibition.” Killion v. City of Paris, 241 S.W.2d 524, 527 (Tenn. 1951). See
also 165 A.L.R. 854 (“Generally, the determination of the questions of what disposition may be
made of income or earnings derived from revenue-producing municipal enterprises, and the
manner thereof, depends primarily on the construction and effect of specific statutory
provisions.”).
We conclude that the contested interdepartmental fund transfers made by the City did not
offend the “pay-as-you-go” mandate of the Idaho Constitution, as set forth in Article VIII, section
3. In considering all the disputed facts, and drawing all reasonable inferences in the record in the
light most favorable to Bradbury, we conclude that the City was entitled to summary judgment as
a matter of law on this issue. Accordingly, we affirm the district court’s award of summary
judgment to the City on this claim.
2. Bradbury did not offer any evidence showing that the City’s interdepartmental transfers
of funds violated Idaho Code section 63-1311.
Bradbury next contends that the interdepartmental transfers violated Idaho Code section
63-1311. He specifically contends that “[a]n unexpended balance, by definition in excess of
liabilities and reserves, violates the mandate that a utility may only collect fees reasonably ‘related
to, but not exceeding, the actual cost of its services.’ ” The City asserts that the “Petitioner offered
no evidence showing that a 3-month operational reserve is in any way unusual or outside of
industry norms. He also offered no evidence showing that the sanitation fund’s operational
reserves exceeded that benchmark at any time relevant to this litigation.” Below, the district court
determined that Bradbury failed to introduce evidence that the reserves held by the City were
unreasonable or in violation of Idaho Code section 63-1311. We agree with the district court’s
analysis.
Idaho Code section 63-1311 permits “the governing board of any taxing district” to
“impose and cause to be collected fees for those services provided by that district which would
otherwise be funded by property tax revenues.” The fees collected under this section “shall be
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reasonably related to, but shall not exceed, the actual cost of the service being rendered.” I.C. §
63-1311. Violations of this provision turn on evidence supporting a finding on the actual cost of
services. See N. Idaho Bldg. Contractors Ass’n v. City of Hayden, 158 Idaho 79, 81, 343 P.3d
1086, 1088 (2015).
There are two key problems with Bradbury’s argument. First, he makes an assumption that
compliance with one statute is an automatic violation of another. For example, he asserts that if a
municipality transfers “an unexpended balance in one fund to the credit of another fund” pursuant
to Idaho Code section 50-1014, that balance inherently proves that the city has been collecting fees
in excess of the reasonable rates and actual costs of utility services. Thus, he maintains that this is
an automatic violation of Idaho Code section 63-1311. Second, Bradbury offers no supporting
evidence that the fees were excessive or unrelated to the actual cost of sanitation services. He
merely alleges the City is using its utilities as a “cash cow” to pay for other municipal needs,
relying only on the fact that $1,138,713 was transferred from the sanitation fund to the golf course
fund in 2010, and $800,000 was transferred from the sanitation fund to the library fund in 2012.
We do not agree that a positive account balance alone, based on the existence of
unexpended revenue, is proof that the City overcharged its sanitation ratepayers in order to pay for
a library or irrigation system. Likewise, we do not agree that the mere existence of an unexpended
balance, or a lawful transfer under Idaho Code section 50-1014, establishes an inherent violation
of section 63-1311. To accept these arguments disregards any other reasonable explanation for the
positive balance, including the City’s duty to maintain “self-supporting” facilities. I.C. § 50-1032.
A utility’s “cash working capital is a recognition of the sum which the utility needs to supply from
its own funds (rather than the rate-payer’s) to meet current obligations as they arise due to the time
lag between payment of expenses and collection of revenues.” Boise Water Corp. v. Idaho Pub.
Utilities Comm’n, 97 Idaho 832, 835, 555 P.2d 163, 166 (1976). The presence of a positive balance
or some excess revenue is necessary for self-sufficiency in the event of necessary “acquisition,
construction, reconstruction, improvement, betterment or extension of any works or to rehabilitate
existing . . . facilities.” E.g., I.C. § 50-1033. Idaho Code section 50-1033, for example, specifically
“allows for the accumulation of reserves” for this purpose in connection to electrical generation
facilities, “and there is no constitutional prohibition to this procedure.” Id.
This is not to say that an excessive balance in utility revenues could never serve as evidence
of suspicious activity or rates. An unusually high balance could suggest impropriety, but that
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analysis would be dependent on evidence particular to the city and its respective allocation of
funds. Here, Bradbury has provided no information that suggests any mis-, mal-, or nonfeasance
on the part of the City. As found by the district court, “the record is silent regarding the
reasonableness of the reserves.” The City provided evidence to show that the golf course and
library transfers occurred in 2010 and 2012, respectively, and that the sanitation fund is not
“financially sustainable” in the long term. There is also evidence to suggest one of the transfers
has been repaid in full. While we note that a city’s practice of transferring funds out of
unsustainable utilities might be concerning, we ultimately agree with the district court’s
assessment that the City cannot be presumed to have overcharged ratepayers. Bradbury has failed
to provide evidence to the contrary. Accordingly, we affirm the district court’s award of summary
judgment to the City on this claim.
3. The payments to Valley Vision and Visit Lewis-Clark Valley were for contracted services.
Bradbury next challenges the payments made by the City to two private entities—Valley
Vision and Visit Lewis-Clark Valley—alleging that they were improper “donations.” The City
contends that these are business relationships that began with oral agreements and have since
become written contracts. The City further explains that it has long held term contracts with both
organizations even if the pre-existing understandings were only reduced to writing in 2018, and
that “Petitioner offered no evidence that demonstrated that these agreements were fictitious.”
Bradbury asserts that these are not binding contracts but donations made to private entities. The
district court agreed with the City that the record evidenced longstanding contracts and business
arrangements, and the payments were not unconstitutional donations. We agree with the district
court’s conclusion that based on substantial evidence from the record, the City’s payments to
Valley Vision and Visit Lewis-Clark Valley are for contracted services.
Cities cannot donate their funds to private enterprises. Article XII, section 4 of the Idaho
Constitution provides that “No . . . city, or other municipal corporation, . . . shall ever . . . make
donation or loan its credit to, or in aid of, any such company or association.” This provision
“imposes an absolute prohibition on any donation or loan of credit by a municipality to a private
enterprise.” Utah Power & Light Co. v. Campbell, 108 Idaho 950, 953, 703 P.2d 714, 717 (1985)
(citing IDAHO CONST. art. VIII, § 4 and art. XII, § 4). However, cities retain the right to “contract
and be contracted with.” I.C. § 50-301. As stated by this Court in Utah Power & Light: “It is
obvious that the framers of the Idaho Constitution had no intention of limiting the power of
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municipalities to contract in furtherance of the public interest, but rather of limiting loans or
donations of public credit.” 108 Idaho at 954, 703 P.2d at 718 (emphasis included).
Bradbury compares this situation to that of Fluharty v. Board of Commissioners of Nez
Perce County, 29 Idaho 203, 158 P. 320 (1916) (superseded by statute), and Village of Moyie
Springs v. Aurora Manufacturing Co., 82 Idaho 337, 353 P.2d 767 (1960). In each of those cases,
this Court concluded there had been a donation made to a private enterprise that was in violation
of Article XII, section 4 of the Idaho Constitution. In Fluharty, the county—through its board of
commissioners—appropriated $2,500 “for the use and benefit” of a livestock association to defray
the expenses of a private fair. 29 Idaho at 208, 158 P. at 321. While this Court recognized that the
county’s purposes were “praiseworthy and beneficial to the public,” we determined that the
appropriation was an unlawful donation to a private corporation—an act strictly prohibited by the
Idaho Constitution. Id. at 211, 158 P. at 322.
More recently, in Village of Moyie, this Court analyzed the constitutionality of a statute
that authorized municipalities to issue revenue bonds to finance the acquisition of land and
construction of facilities that were to be leased to private enterprises. 82 Idaho at 339–41, 353 P.2d
at 768–69. This Court determined that the statute, and corresponding ordinance enacted by the
plaintiff, violated the Idaho Constitution because the primary purpose of these laws was to benefit
private enterprise. Id. at 345–46, 353 P.2d at 772–73. This Court explained:
It is obvious that one of the prime purposes of having the necessary bonds issued
by and in the name of a municipality is to make them more readily salable on the
market. Thus, the credit of the municipality is extended in aid of the project,
regardless of the limitations placed upon the remedy of the purchaser. . . .
It seems clear to us that the revenue bonds are issued by the city in its own name to
give them a marketability and value which they would otherwise not possess. If
their issuance by the city is an inducement to industry, some benefits must be
conferred, or it would be no inducement at all. Such benefits, whatever form they
may take, necessarily must be based on the credit of the city. The loan of its name
by a city to bring about a benefit to a private project, even though general liability
does not exist, is nothing short of a loan of its credit.
Id. Ultimately, this Court held, “public money cannot be appropriated for a private purpose or used
for the purpose of acquiring property for the benefit of a private concern.” Id. at 347, 353 P.2d at773–74.
In comparing the facts of this appeal to these two cases, the City’s agreements with Valley
Vision and Visit Lewis-Clark Valley are not analogous to the unconstitutional transactions in
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Fluharty and Village of Moyie. Here, there was no appropriation or donation simply given to
benefit a private organization. Instead, the transactions at issue here concerned a contract for
services whereby the City made annual payments to Valley Vision and Visit Lewis-Clark Valley
in exchange for their business services in economic development and tourism. The nature of the
services to be performed is designated in written agreements. Thus, the City is not donating money
or lending it—it is contracting for specific services with a clear public purpose.
Bradbury has produced no evidence to the contrary, except to reiterate the amount of
money each enterprise has received over the course of its business dealings with the City. He has
also failed to present evidence that demonstrates the contracts are a false front to “circumvent the
prohibition of donations of public money to private organizations,” or that the services paid for are
not being rendered. While it is concerning that the original contracts were based on oral agreements
between the City and the entities, that fact alone does not establish that these were donations.
The record demonstrates that the City entered into written service agreements with the two
enterprises, with each private entity covenanting to provide the City with specific and needed
services. Therefore, we conclude that the district court’s determination that the City was entitled
to summary judgment on this claim was correct.
4. Bradbury lacks standing to challenge the City’s allocation of water to Bryden Canyon.
In the proceedings below, Bradbury’s eighth and ninth causes of action consist of
allegations that the City provided “free water” to Bryden Canyon at the expense of City water
ratepayers. Bradbury argued this also violated various city ordinances. The district court dismissed
these claims because it found Bradbury lacked standing to challenge the City’s allocation of water
because he was not a City water ratepayer. On appeal, Bradbury argues that he has standing to
challenge the City’s allocation of water to Bryden Canyon because of “his capacity as a ratepayer
of two of the three city utilities and as a city councilor.” The City responds that Bradbury has “not
demonstrated that he had actually suffered a distinct and palpable injury as a result of these
allegations” and it is undisputed that Bradbury “did not pay what he alleges are inflated water
rates.”
Idaho’s standing law substantially mirrors federal standing law. Gifford v. W. Ada Joint
Sch. Dist. #2, 169 Idaho 577, 582, 498 P.3d 1206, 1211 (2021). It is a subcategory of justiciability
and “a threshold determination that must be addressed before reaching the merits.” Id. This Court
has long explained that the core of the standing doctrine is a plaintiff’s personal stake in the suit:
21
The essence of the standing inquiry is whether the party seeking to invoke the
court’s jurisdiction has “alleged such a personal stake in the outcome of the
controversy as to assure the concrete adversariness which sharpens the presentation
upon which the court so depends for illumination of difficult constitutional
questions.” As refined by subsequent reformation, this requirement of “personal
stake” has come to be understood to require not only a “distinct palpable injury” to
the plaintiff, but also a “fairly traceable” causal connection between the claimed
injury and the challenged conduct.
Miles v. Idaho Power Co., 116 Idaho 635, 641, 778 P.2d 757, 763 (1989). Thus, “[s]tanding
focuses on the party seeking relief and not on the issues the party wishes to have adjudicated.”
Young v. City of Ketchum, 137 Idaho 102, 104, 44 P.3d 1157, 1159 (2002).
The general standing analysis requires a plaintiff to demonstrate: “(1) an injury in fact, (2)
a ‘fairly traceable causal connection between the claimed injury and the challenged conduct[,]’
and (3) ‘a substantial likelihood the relief requested will prevent or redress the claimed injury.’ ”
Gifford, 169 Idaho at 582, 498 P.3d at 1211 (quoting Young, 137 Idaho at 104, 44 P.3d at 1159).
See also Associated Press v. Second Jud. Dist., 529 P.3d 1259, 1265 (Idaho 2023). However, “even
if a showing can be made of an injury in fact,” standing may still “be denied when the asserted
harm is a generalized grievance shared by all or a large class of citizens.” Young, 137 Idaho at 104,
44 P.3d at 1159.
The district court relied on our recent decision in Gifford to analyze whether Bradbury had
standing. Both Bradbury and the City also cite to Gifford as support for their standing arguments.
In Gifford, parents asserted two injuries in their claims: the economic injury suffered by patrons
who paid allegedly unconstitutional fees to enroll their children in second half-day kindergarten;
and an educational injury where their son was denied the full free education he was entitled to
receive under Article IX, section 1 of the Idaho Constitution. 169 Idaho at 582, 498 P.3d at 1211.
Although this Court ultimately determined that the parents had standing to pursue the educational
injury, we ruled they lacked standing to pursue their claim for an economic injury because the
parents “did not pay kindergarten fees.” Id. at 587, 498 P.3d at 1216. Thus, they “[did] not have
standing to seek redress—on their own behalf or on behalf of others—for an economic injury they
have not suffered.” Id. Additionally, the parents could not qualify for this Court’s “relaxed”
standing analysis, which may occur where: “(1) the matter concerns a significant and distinct
constitutional violation, and (2) no party could otherwise have standing to bring a claim.” The
parents did not meet this standard because there was “a whole class of people who could challenge
22
the constitutionality of second half-day kindergarten tuition fees; namely, the other patrons who
[had] collectively paid West Ada $8 million dollars in such fees.” Id.
Based on the standard set forth above, the first question before us is whether Bradbury has
alleged an injury caused by the City’s actions. Bradbury has alleged an economic injury to
ratepayers resulting from the City’s mismanagement of its water fund and the alleged higher fees
incurred because it provided “free” water to Bryden Canyon. However, it is undisputed that
Bradbury did not receive water services from the City, nor does he pay any fees. At all times
relevant to this litigation he has been a water customer of LOID. Thus, he has not suffered an
economic harm himself. As in Gifford, Bradbury cannot seek redress for a hypothetical harm he
has not suffered. He also cannot bring a vicarious suit on behalf those he alleges have been injured
by the City’s conduct. Moreover, a whole class of people exists who have standing and can bring
suit—namely, the City’s water ratepayers who have been paying the allegedly unlawful fees.
Bradbury also claims that the City’s “pattern of conduct of managing its utilities fees”
affects him “as a consumer of the wastewater and sanitation utilities.” But he has not established
how he is injured or even what specific injury he claims. Instead, he makes a generalized allegation
of unconstitutional conduct and seeks nonspecific damages flowing therefrom. This is not
sufficient to establish standing to challenge the water allocations to Bryden Canyon. Where “a
generalized grievance shared by all or a large class of citizens” is asserted, standing is generally
denied. See Young, 137 Idaho at 104, 44 P.3d at 1159.
Even drawing all reasonable inferences in the record in the light most favorable to
Bradbury, we must still affirm the district court’s finding that Bradbury lacked standing to
challenge the City’s water rates and allocation to Bryden Canyon. Accordingly, the City was
entitled to summary judgment as a matter of law on this claim.
5. The district court did not err in refusing to refund the unlawfully collected street impact
fees.
Bradbury prevailed on one of his nine claims below. The district court agreed with
Bradbury that the street impact fees assessed and allocated to the water, wastewater, and sanitation
funds amounted to an illegal tax. The City has not appealed that decision. However, the district
court also determined that a refund of the street impact fees to all the utility ratepayers was not a
remedy it could provide. Because he only sued the City as an individual, the district court only
considered whether Bradbury, alone, was entitled to a refund. The district court determined that
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Bradbury failed to file a notice of claim for damages as prescribed by the Idaho Tort Claims Act
(“ITCA”), which procedurally barred him from recovery.
On appeal, Bradbury contends that the ratepayers are entitled to have the unconstitutional
street impact fees refunded to them and points to the record to demonstrate that he filed a notice
of claim for damages pursuant to the ITCA. The City argues that the street impact fees “were not
‘excess funds’ that were due to be refunded to City residents under this or any other provision of
the City’s code.” There are several issues raised here: (a) whether Bradbury brought this lawsuit
in his individual capacity, (b) whether the district court erred in determining that ITCA precludes
recovery on a constitutional claim, and (c) whether Bradbury is entitled to a refund.
a. Bradbury brought this lawsuit in his individual capacity.
The Idaho Rules of Civil Procedure require an action to “be prosecuted in the name of the
real party in interest.” I.R.C.P. 17(1). The Rules specify the limited circumstances where parties
“may sue in their own names without joining the person for whose benefit the action is brought.”
Id. These include executors, administrators, personal representatives, guardians, bailees, trustees
of an express trust, parties with whom or in whose name a contract has been made for another’s
benefit, and parties authorized by statute. Id. Additionally, Rule 77 establishes the prerequisites
for bringing a class action. I.R.C.P. 77.
When Bradbury filed this action against the City on March 29, 2021, he stated that he
brought the petition “in his capacity of City Councilor and in his capacity of a utility ratepayer on
his own behalf and the behalf of all residents of Lewiston rate payers.” However, he did not attempt
to (1) join any parties to the action, (2) file his petition as a class action, or (3) ask the court “to
certify the action as a class action.” I.R.C.P 77(c)(1)(A). Thus, Bradbury filed this lawsuit on his
own behalf and for no one else. Aside from his former position as a city council member, he has
also not asserted any authority to prosecute an action on behalf of all the City’s ratepayers. Nor
has he established whether he meets an exception under the Idaho Rules of Civil Procedure.
We affirm the district court’s conclusion that Bradbury’s status as a city council member
when he filed this action does not establish legislative standing or endow him special standing to
bring suit against the City. Bradbury compares his case to Bedke v. Ellsworth, where we agreed
that two legislative officers had standing to bring an “institutional injury” on behalf of the
respective bodies they represented. 168 Idaho 83, 93–94, 480 P.3d 121, 131–32 (2021). In Bedke,
the Speaker of the House of Representatives and President Pro Tempore of the Senate claimed
24
they were “unable to discharge their statutorily created responsibility to allocate space on the first
floor of the Capitol because the Treasurer refuse[d] to vacate her office.” Id. at 94, 480 P.3d at
132. Importantly, Bedke and Hill did not allege a generalized injury; they asserted “a specific and
particularized grievance” concerning “a statutorily authorized duty delegated specifically to them.”
Id. The same cannot be said of Bradbury, who has brought this suit alone and “in his capacity [as]
a utility ratepayer.” While Bradbury was a city council member for the City at the time he filed
this action, he has not alleged an institutional injury nor has he sought to validate or perform an
institutional right of the city council.
Accordingly, we agree with the district court that Bradbury brought the action only in his
individual capacity.
b. The district court erred in determining that the ITCA precluded recovery on
a constitutional claim seeking equitable relief.
In ruling on the motions for summary judgment, the district court concluded that there was
nothing in the record “that indicate[d] Bradbury provided to the City a notice of a claim for
damages,” as required under the ITCA, specifically Idaho Code section 50-219. Bradbury argues
that he is entitled to have his fees refunded regardless of whether he filed his notice of claim under
the ITCA. Bradbury cites to Hill-Vu Mobile Home Park v. City of Pocatello, 162 Idaho 588, 594,
402 P.3d 1041, 1047 (2017), to argue that the unconstitutional fees must be refunded as a matter
of equity. He also contends that he complied with the ITCA “in an abundance of caution” even
though he did not have to. The City contends that the district court was not required to “scour the
entire record” for a document Bradbury “had elsewhere offered,” and that it was Bradbury’s
responsibility to set forth the specific facts in response to the motion for summary judgment. We
conclude that the district court erred in determining that the ITCA, as a state statute, could preclude
recovery on a constitutional claim. Furthermore, even if the ITCA applied, we conclude that the
evidence in the record supports Bradbury’s position that he complied with the statute’s notice
requirements.
“All claims for damages against a city must be filed as prescribed by [the ITCA].” I.C. §
50-219. Where the ITCA applies, a claim must “be presented to and filed with the clerk or secretary
of the political subdivision” within 180 days “from the date the claim arose or reasonably should
have been discovered, whichever is later.” I.C. § 6-906. Bradbury points to a document in the
record that he filed with the City in September 2020, approximately eight months prior to initiating
this action in the district court. This notice of claim consists of an email in which Bradbury
25
informed the city clerk he was filing a “Notice of Claim against the City of Lewiston” out of an
“abundance of caution.” The draft complaint attached to this email called for declaratory relief,
injunctive actions to enjoin continuation of unconstitutional practices, and sought an order for the
City “to repay those utilities for the funds illegally transferred.” Even the City’s briefing prior to
summary judgment recognized that Bradbury filed a notice of claim for damages in September
2020. Thus, the record establishes that Bradbury complied with the ITCA by timely filing his
notice of claim with the city clerk.
However, even if Bradbury had failed to comply with the ITCA’s notice requirements, as
the district court inaccurately concluded, this would not be a bar to his constitutional claims. We
agree with Bradbury’s application of Hill-Vu, and conclude that unconstitutional fees may be
refunded as a matter of equity.
In Hill-Vu, the City of Pocatello implemented a revenue-generating payment in lieu of
increasing property taxes. 162 Idaho at 594, 402 P.3d at 1047. The plaintiffs sought a judgment to
recover money unlawfully collected by the city from the users of the city’s water and sewer
systems. Id. at 590, 402 P.3d at 1043. Following cross motions for summary judgment, the district
court held that all of the plaintiffs’ state law claims (including their unconstitutional taking claim)
were barred under the ITCA. Id. at 592, 402 P.3d at 1045. This Court vacated the judgment and
remanded for further proceedings. Id. at 600, 402 P.3d at 1053. While the ITCA provided that a
governmental entity cannot be liable in tort for a claim arising out of the assessment or collection
of a tax, the Idaho Constitution barred a government from taking private property without just
compensation. Id. at 594, 402 P.3d at 1047. This Court concluded that “[a] statute cannot limit the
right to recover for the taking of property in violation of the Constitution.” Id. See also N. Idaho
Bldg. Contractors Ass’n v. City of Hayden, 164 Idaho 530, 542, 432 P.3d 976, 988 (2018) (“the
failure to comply with notice requirements of the ITCA cannot serve as a bar for federal takings
claims.”). Thus, in Hill-Vu, the ITCA did not preclude a claim to recover unconstitutional utility
charges. Id.While the facts here differ slightly from Hill-Vu, the situation and principles are analogous.
Like in Hill-Vu, Bradbury has brought an action to recover damages from unconstitutional utility
fees imposed by the City. The district court determined that the street impact fees were an illegal
tax but it barred recovery under the ITCA. Not only did Bradbury comply with the ITCA, as noted
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above, he did not have to. Hill-Vu establishes that a state statute cannot limit a plaintiff’s right to
recover against a municipality’s unconstitutional acts.
c. Bradbury is not entitled to a refund or remand.
Bradbury has brought this suit in his individual capacity and he has successfully argued
that (1) he was in compliance with the ITCA and (2) his recovery on a constitutional claim cannot
be barred by the state statute. Yet, Bradbury has also maintained throughout this litigation that
“[n]ot once is there a request for a personal remedy.” By his own concession before this Court at
oral argument, Bradbury stated that he is not seeking reimbursement for his injury. Thus, while
we reverse the district court’s determination that recovery was barred to Bradbury, we must also
conclude that a remand to consider damages is unnecessary. There need not be an assessment of
the amount of refund Bradbury is entitled to where he has repeatedly stated that he is not seeking
such relief.
C. The district court did not err in denying Bradbury’s request for attorney’s fees.
Bradbury next argues that the district court erred in denying his request for attorney fees.
Both Bradbury and the City sought attorney fees and costs below; however, the court concluded
that there was no prevailing party at summary judgment since each side had partially prevailed. In
examining Bradbury’s request for attorney fees, the district court also determined that his claim
failed on two additional grounds. First, he could not show a legal precedent for attorney fees under
the private attorney-general doctrine where he was a pro se litigant and, second, he failed to meet
the requirements of Idaho Rule of Civil Procedure 54. Bradbury challenges each decision.
“Attorney fees may be awarded if authorized by statute or contract.” Stibal v. Fano, 157
Idaho 428, 435, 337 P.3d 587, 594 (2014). “The determination of who is a prevailing party, for the
purpose of receiving an award of attorney fees, is committed to the sound discretion of the trial
court.” Israel v. Leachman, 139 Idaho 24, 26, 72 P.3d 864, 866 (2003). Thus, that determination
will only be disturbed upon a showing of an abuse of discretion. Id.; Dickinson Frozen Foods, Inc.
v. J.R. Simplot Co., 164 Idaho 669, 676, 434 P.3d 1275, 1282 (2019). This includes “the discretion
to decline an award of attorney fees when it determines that both parties have prevailed in part.”
Allen v. Campbell, 169 Idaho 125, 130, 492 P.3d 1084, 1089 (2021). As articulated in the Idaho
Rules of Civil Procedure:
In determining which party to an action is a prevailing party and entitled to costs,
the trial court must, in its sound discretion, consider the final judgment or result of
the action in relation to the relief sought by the respective parties. The trial court
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may determine that a party to an action prevailed in part and did not prevail in part,
and on so finding may apportion the costs between and among the parties in a fair
and equitable manner after considering all of the issues and claims involved in the
action and the resulting judgment or judgments obtained.
I.R.C.P. 54(B).
Below, the district court concluded that neither Bradbury nor the City were entitled to
attorney fees. Pursuant to its discretion under Allen, the district court concluded that both parties
prevailed in part and lost in part, leading the district court to determine that there was no “overall
prevailing party.” Implicit in this determination is that the district court determined that the most
equitable apportionment of costs and fees was to have the parties bear their own costs of litigation.
While Bradbury argues that the importance of his partial victory makes him “by definition the
prevailing party,” we conclude that the district court exercised reason and appropriate discretion
in determining that both sides had prevailed in part and that neither side was entitled to an award
against the other. There was no abuse of discretion in reaching this decision.
Our decision on this issue is dispositive of Bradbury’s remaining arguments on attorney
fees and we need not address the applicability of the private attorney general doctrine to a pro se
party. Nevertheless, even if fees could be awarded under these circumstances, Bradbury’s request
for fees was fatally flawed due to his failure to comply with the Idaho Rules of Civil Procedure
concerning attorney fees and costs. “A claim for attorney fees as costs must be supported by an
affidavit of the attorney stating the basis and method of computation.” I.R.C.P. 54(e)(5). “Because
attorney fees are deemed as costs and must be included in the memorandum of costs, I.R.C.P.
54(e)(5), the failure to timely file a memorandum of costs will constitute a waiver of the right to
recover attorney fees.” Est. of Holland v. Metro. Prop. & Cas. Ins. Co., 153 Idaho 94, 102, 279
P.3d 80, 88 (2012). Additionally, “the reasonableness of the amount of attorney fees requested . . .
is determined by the trial court’s application of all of the factors set forth in Rule 54(e)(3).” Bailey
v. Bailey, 153 Idaho 526, 530, 284 P.3d 970, 974 (2012).
Bradbury failed to include a memorandum of costs or any affidavit “stating the basis and
method of computation.” I.R.C.P. 54(e)(5). His request for attorney fees only provided the district
court with general information touching on the Rule 54(e)(3) factors. For example, Bradbury
asserts that he sufficiently met these procedural rules by discussing his legal experience, the
difficulty of the tasks and research, the “inordinate amount of time” involved in the research, and
the importance of the issues. However, he did not provide key specific details in a memorandum
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setting forth the actual number of hours he worked on the case or its corresponding costs. He did
not submit any timesheets, any data showing his expenses or charges, any reasonable costs of
preparing evidence, and he presented no claim for an actual fee for his services. In short, while
Bradbury discussed the significance of his case, he offered no evidence upon which the district
court could determine a reasonable fee. By Bradbury’s own admission: “[I] did not submit the
hours [I] spent because [I] did not record them.” Thus, he not only failed to comply with Idaho’s
Rules of Civil Procedure, he made it impossible for the district court to consider all of the Rule
54(e)(3) factors or calculate a reasonable attorney fee.
We conclude that the district court correctly perceived this issue as one of discretion under
Allen, acted within those boundaries of that discretion, acted consistently with the legal standards
governing attorney fees, and then reached its decision by an exercise of reason. There was no abuse
of discretion in declining to award attorney fees where both parties partially prevailed in the case,
particularly where Bradbury failed to comply with the Idaho Rules of Civil Procedure in making
his request for attorney fees before the district court. Thus, we affirm the district court’s order
denying attorney fees to Bradbury and the City.
D. The City is not entitled to attorney fees on appeal.
Both parties argue that they are entitled to an award of attorney fees on appeal. Bradbury
requests attorney fees and costs “at the trial and appellate levels as a private attorney general and
pursuant to I.C. §12-117.” The City requests attorney fees under Idaho Code section 12-117,
arguing that Bradbury advanced a “baseless, unfounded appeal.”
Bradbury is not entitled to attorney fees on appeal. Not only is he not the overall prevailing
party on appeal, he advances no argument as to why he should be entitled to attorney fees on
appeal. He simply requests an award in the list of issues laid out in his briefing. This Court has
determined that “[a] party seeking an award of attorney fees must ‘support the claim with argument
as well as authority.’ ” Teurlings v. Larson, 156 Idaho 65, 76, 320 P.3d 1224, 1235 (2014) (quoting
Evans v. Sayler, 151 Idaho 223, 228, 254 P.3d 1219, 1224 (2011)). A mere citation of the basis for
an award is insufficient for an award of attorney fees. Bagley v. Thomason, 149 Idaho 799, 805,
241 P.3d 972, 978 (2010).
Although the City is the overall prevailing party on appeal, we conclude that it is not
entitled to attorney fees under Idaho Code section 12-117. That statute mandates an award of
reasonable attorney fees to the prevailing party “in any proceeding involving as adverse parties a
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state agency or a political subdivision and a person,” where “it finds that the nonprevailing party
acted without a reasonable basis in fact or law.” I.C. § 12-117(1). Although many of Bradbury’s
claims on appeal were brought without a reasonable basis in fact or law, he prevailed on the claim
that the district court erred in concluding his cause of action for rate refunds was barred by the
ITCA. He also raised significant issues of first impression concerning whether the internal transfer
of funds, characterized as “loans” by the City, runs afoul of the Idaho Constitution. We
acknowledge that Bradbury undermined his own arguments at times by consistently asserting that
he is seeking no damages for himself. Yet, given that his effort to act on behalf of the affected city
taxpayers—albeit procedurally deficient—was grounded in the City’s unusual handling of
taxpayer funds, we cannot conclude his appeal qualifies for an award of attorney fees against him
under section 12-117.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is affirmed in part and reversed
in part. First, we reverse the district court’s legal conclusion that the ITCA barred Bradbury’s right
to an individual refund on the street impact fees because it was a constitutional claim based in
equity. However, a remand is unnecessary where Bradbury concedes he is seeking no such remedy
for himself. Second, we affirm the district court’s rulings on all remaining issues on appeal. No
attorney fees are awarded to either party; however, the City is awarded costs as a matter of course.
I.A.R. 40(a).
Chief Justice BEVAN, Justices BRODY, ZAHN and Justice Pro Tem BERECZ concur.
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