Opinion

‘Justice so requires’ lawmakers act to avert change in who pays Idaho attorney fees

Lawmakers listen to Idaho Gov. Butch Otter give his 2016 State of the State address. The three Idaho Supreme Court justices who recently upended longstanding practice regarding how attorney fees are awarded in this state wrote that they took their cue from a past Legislature.
Lawmakers listen to Idaho Gov. Butch Otter give his 2016 State of the State address. The three Idaho Supreme Court justices who recently upended longstanding practice regarding how attorney fees are awarded in this state wrote that they took their cue from a past Legislature. AP file

The Idaho Supreme Court ruled this fall that starting March 1, losers in court cases will have to pay the winners’ attorneys fees and court costs “when justice so requires.”

On the face of it, it’s an un-American ruling. That’s not the way the rest of the states and the federal courts work. Each side pays its own costs, unless a specific law involved in the case says otherwise, or, sometimes, unless the loser has brought a clearly frivolous lawsuit.

So, it seems, the court is saying that if Joe Homeowner hires a local lawyer on contingency for a case against SuperMultiNational Oil Co. and its 17 New York lawyers – and loses – Joe is on the hook for SMNOCo’s $1 million lawyer bill run up over the six months leading up to the trial.

Where’s the “justice” in that? You could argue that justice doesn’t “require” it in that situation. But the phrase, reports Betsy Z. Russell, The Spokesman-Review’s superb Boise correspondent, has almost no agreed upon meaning, and, where used, is usually ignored.

Since 1979, the court has been working under a rule it adopted that awards attorney fees to winners in cases that were “brought, pursued or defended frivolously, unreasonably or without foundation,” Russell reported. But that’s not a law passed by the Legislature.

It said in a statement of intent with 1987 law changes that losers in civil cases should pay fees and costs “when justice so requires,” Russell reported.

That’s the vague rule the court has adopted. It has set it to go into effect after the 2017 legislative session. That, essentially, challenges lawmakers to adopt as law the rule the state’s courts have been working under since 1979.

Supreme Court Justice Joel Horton, writing for the majority in the case that set the change in motion, said the court had set a rule that exceeded the state law: “This court is without authority to amend laws enacted by the Legislature because we think them unwise.”

Even though the Legislature hadn’t complained, that’s a wise position for the court to take.

The Legislature should take the wise position and quickly pass the court’s longstanding and well-accepted rule into law.

Or it will risk creating a whole lot of injustice.

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