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Pamela Lowe v. Idaho Transportation Department

March 31, 2012


The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge



Now pending before the Court are (1) Plaintiff's Motion for Partial Summary Judgment (Docket No. 100), (2) Defendants' Motion for Partial Summary Judgment (Docket No. 117), and (3) Plaintiff's Motion to Strike (Docket No. 130). Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:


The parties in this case have each filed a motion for partial summary judgment, asking the Court to rule as a matter of law upon the meaning of Idaho Code section 40-503. Plaintiff Pamela Lowe ("Lowe") contends that she was wrongfully terminated from her position as the Director of the Idaho Transportation Department ("ITD") -- a named Defendant in this action. Section 40-503 provides in relevant part:

The [ITD] director shall serve at the pleasure of the board and may be removed by the board for inefficiency, neglect of duty, malfeasance or nonfeasance in office.

Lowe contends that section 40-503 grants her a property interest in her continued employment, which requires, as a matter of constitutional law, that she be given notice of any claimed problems with her performance as Director, and an opportunity to respond to those allegations (referred to in the law as "due process") before she could be removed from her position. The ITD-related Defendants contend that the statute does not grant such rights, that Lowe was an "at-will" employee who could be terminated at any time, and that the reasons set out in the statute for her removal do not give rise to a property interest in continued employment in any event. ITD's position is drawn from its contention that the ITD Board has unfettered discretion upon the termination of the Director, given the language in the statute that the Director "shall serve at the pleasure of the board."

The Court has a responsibility to apply the plain, obvious, and rational meaning of the statute, if that meaning is readily apparent. The Court also must seek to give meaning to each word in the statute, not emphasizing some words to the exclusion of others. If, on the other hand, the statute is ambiguous, the Court may consider extrinsic evidence to assist it in discerning the intent of the Legislature in enacting the legislation, so that the Court has further guidance in interpreting the statute in a way that meets the intention of the Legislature.

The record in this case contains voluminous records of government activity in the early 1970s, when Idaho state government was extensively reorganized and when the ITD was first created. There are numerous sworn statements from various politicians, including several former governors and former legislators, and from multiple public employees, including agency directors and former staff employees. The great bulk of this evidence was submitted to the Court in support of the parties' respective positions on the perceived intent of the Idaho Legislature in creating the ITD, and the position of the ITD Director, in 1974. In addition, there is extensive briefing containing the argument of counsel for the parties upon these issues.

After full and thoughtful consideration of that record, the Court rules in this Decision that, under both a plain meaning interpretation of section 40-503 and under the most sensible construction of the statutory meaning intended by the Legislature, Lowe did have a property interest in her employment with ITD, and that she was entitled to due process before she could be discharged from her employment. The Court rules that section 40-503 provides that the ITD Board is charged with hiring and firing the ITD Director. The hiring of the Director is constrained by the requirement that the Director "have knowledge and experience in transportation matters." The ITD Board may also fire the Director, but that decision is constrained by the requirement that the Director must have done something in his or her employment that, in the judgment of the ITD Board, constitutes inefficiency, neglect of duty, malfeasance, or nonfeasance in office.

This Decision does not rule upon the specific due process protections to which Lowe was entitled before she was removed from her position. The Decision also does not rule upon whether or not ITD's actions contemporaneous to the time of Lowe's dismissal satisfied any due process protections to which she might have been entitled. Those issues will be the subject of further proceedings in the case. This Decision simply settles the waters as to whether or not Lowe had a property interest in her employment, entitling her to due process protections before she could be terminated from her position.


The factual backdrop to the issues raised by the cross-motions for partial summary judgment is set out at length in the Court's prior orders, and the parties' briefing. The essential details are recounted again here.

Lowe had been a long-time employee of the ITD, serving in various positions of responsibility since 1993, eventually becoming ITD's Director in January 2007. She was terminated from that position by the ITD Board in July 2009. Lowe challenges her termination, contending, among other things, that she had a property interest in her continued employment with ITD and that, by not providing her with an opportunity to challenge the reasons given for her dismissal, she was denied her due process rights.

ITD disagrees, arguing that Lowe was an at-will employee at the time of her firing. As an at-will employee, ITD further argues that Lowe was not entitled to procedural protections and, thus, did not have a property interest in continued employment as ITD Director.

Whether Lowe had a property interest in her continued employment as ITD Director turns on the application of Idaho Code section 40-503. Under that section:

The [ITD] director shall serve at the pleasure of the board and may be removed by the board for inefficiency, neglect of duty, malfeasance or nonfeasance in office.

See I.C. § 40-503(1). Through her Motion for Partial Summary Judgment, Lowe argues that section 40-503's inclusion of specified reasons for removal in the statute reflects, as a matter of law, the Idaho Legislature's intent to provide ITD's Director with an expectation of continued employment after initial appointment -- terminable only for cause after due process. In contrast, but also relying on the statute's own wording, ITD moves for partial summary judgment on the same issue, countering that section 40-503's reference to the ITD's Director serving "at the pleasure" of the ITD Board, and the absence of any fixed term of employment, demonstrate the at-will nature of the ITD Director's employ -- one that carries no corresponding expectation of continued employment.

Although this case is now before the Court on cross-motions for partial summary judgment, it has been at issue for some time and the parties already have engaged in extensive motion practice, briefing, and discovery. Their skirmishing first began with Lowe originally filing a motion for partial judgment on the pleadings. The briefing on Lowe's initial motion was comprehensive; the record, however, was not, because that motion was made upon the pleadings, not a fully-developed record.

In response, the Court wrote a "proposed" memorandum decision and order. See Prop. Mem. Decision and Order, attached to Req. for Add'l Briefing (Docket No. 47). Such an avenue is unusual, though not unprecedented. The Court chose such a procedural route because much of the evidence and argument in the record centered about the issue of what the Legislature had in mind at the time section 40-503 was enacted. If deemed to be ambiguous, the question of the Legislature's intentions informed the Court's thinking in considering whether the exercise of statutory construction would lead to the same meaning reached by the Court as to the plain, obvious, and rational meaning of the statute's language. However, the Court was concerned that the emphasis in its proposed decision drew upon areas of the record and argument that the parties had not fully developed in their own briefing. Accordingly, the Court did not enter the proposed decision as an order, but rather invited the parties to submit additional briefing on the subject of the legislative record and the intent of the legislation.

Even though the parties had previously provided some legislative history in the initial briefing on Lowe's motion for partial judgment on the pleadings, and even though the Court had done additional research on its own into matters that seemed clearly appropriate for judicial notice, the subsequent requested briefing from the parties unexpectedly dwarfed what had been done before. Extensive records of the Idaho Legislative Reorganization Commission ("Commission"), which developed a plan for the reorganization of state government in 1973 and early 1974, were submitted to the Court, along with dozens of pages of the record of legislative committee work on the same. Multiple declarations were submitted from persons who had been in or around the reorganization process.

After receiving and reviewing the submitted material -- consisting of hundreds of pages of new briefing and supporting materials -- the Court requested that the parties prepare new motions for partial summary judgment on the issue, so that there would be no remaining constraints or procedural limitations upon the Court's ability to fully consider all of the more fully-developed record. See 3/31/11 Mem. Decision and Order (Docket No. 78). The parties have since done so, also filing ancillary motions related to the evidentiary issues raised by the nature of the new record. Multiple requests for page limitation waivers and briefing deadline extensions were received, and granted. After the record was finally settled, the Court heard oral argument, and now issues this Decision.


A. Cross Motions for Summary Judgment: Standard of Review

A principal purpose of summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is " not a disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).

This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 256-57. The non-moving party must go beyond the pleadings and show "by [its] affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324.

The party bearing the burden of proof at trial "must establish beyond controversy every essential element of its . . . claim." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003) (adopting decision of district court "as our own"). A party who does not have the burden "may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact." Fed. R. Civ. P. 56(c)(1)(B) advisory committee's note.

As a general rule, the Court is "not required to comb through the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified Sch.

Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quoting Forsberg v. Pac. Northwest Bell Tel.Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). Instead, the "party opposing summary judgment must direct [the Court's] attention to specific triable facts." S. Cal. Gas Co., 336 F.3d at 889. An exception to this rule exists when cross-motions for summary judgment are filed. In that case, the Court must independently search the record for issues of fact. Fair Housing Council of Riverside Co., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). Cross-motions for summary judgment -- where both parties essentially assert that there are no issues of material fact -- does not vitiate the court's responsibility to determine whether disputed issues of material fact are present. Id. Accordingly, since a court already has a duty to review the record to resolve cross motions for summary judgment, the Carmen line of cases discussed above does not apply to cross-motions.

In this case, there are strongly opposing personal views expressed by some declarants as to their understanding of the meaning of section 40-503, a disagreement also reflected in the parties' briefing and argument. However, those differences are matters of argument and not contested issues of material fact. The Court is satisfied that there are no genuine issues of material fact upon the facts relied upon in this Decision.

B. Statutory Interpretation/Construction of Idaho Code Section 40-503

In Johnson v. N. Idaho Coll., 2008 WL 4000128 (D. Idaho 2008) (unpublished) (reversed on other grounds), U.S. District Judge Edward J. Lodge outlined the protocol for construing statutes in Idaho. Finding no reason to depart from its rationale (the parties supply no contrasting authority), it will be applied here:

In Idaho, when construing a statute, the focus of the Court is to give effect to the intent of the Legislature. The goal is to give effect to the purpose of the statute and the legislative intent enacting it, which may be implied from the language used or inferred on grounds of policy or reasonableness. Statutory interpretation begins by examining the plain language in the statute. Where the language is unambiguous, it must be given its plain, obvious, and rational meaning. However, where the language of the statute is ambiguous, absurd, incomplete, or arguably in conflict with other laws, the Court looks to rules of construction for guidance. To ascertain the intent of the Legislature, not only must the literal words of the statute be examined, but also the context of those words, the public policy behind the statute, and its legislative history. Constructions that would lead to absurd or unreasonably harsh results are disfavored.

See id. at *11 (internal citations omitted); see also St. Luke's Reg. Med. Ctr. v. Bd. of Comm'rs of Ada County, 203 P.3d 683, 685 (Idaho 2009) ("function of the Court is to determine and give effect to the legislative intent").

Recognizing that the interpretation of section 40-503 is a question of law, this Court must first examine the statute's literal words. If plain and not ambiguous, effect is given to the statute as-written, without engaging in further statutory construction. See Twin Falls Cnty. v. Cities of Twin Falls and Filer, 146 P.3d 664, 668 (Idaho 2006) (dissent) ("Where a statute is unambiguous, statutory construction is unnecessary and courts are free to apply the plain meaning.") (citing Martin v. State Farm Mut. Auto. Ins. Co., 61 P.3d 601, 603 (Idaho 2002)).

Importantly, parties' differing interpretations do not operate as a de facto finding of ambiguity. See Twin Falls Cnty., 146 P.3d at 668 (citing Rim View Trout Co. v. Higginson, 828 P.2d 848, 852 (Idaho 1992)). If ambiguous, however, the Court next engages in statutory construction to ascertain the legislative intent and, in turn, defer to that intent, including the statute's literal words, its context, the public policy behind the statute, and its legislative history. See Twin Falls Cnty., 146 P.3d at 668 (citing State v. Rhode, 988 P.2d 685, 688 (Idaho 1999)).

C. Idaho Code Section 40-503's Meaning

The instant dispute turns first upon the meaning of section 40-503. If the Court were to agree with ITD's statutory interpretation, the issue would be resolved. ITD has a further argument, however, that even if the Court were to agree with Lowe's interpretation of the statute, the language Lowe relies upon nevertheless does not give rise to a constitutionally-protected right. The parties are in polite, but strident, disagreement about these two issues. The Court will address them in turn.

1. Step One: Idaho Code Section 40-503's Plain Meaning

Because "the best guide to legislative intent is the words of the statute itself," the interpretation of a statute must begin with the literal words of the statute. See In re Permit No. 36-7200, 828 P.2d 848, 853 (Idaho 1992). Here, both Lowe and ITD argue that Idaho Code section 40-503's plain meaning coincides with their respective statutory interpretations.

Lowe contends that "the plain meaning of the words in the statute make clear that the Director can only be removed for cause." See Pl.'s Mem., pp. 5-6 (Docket No. 22) ("The statute provides termination of the Director for only limited reasons. Specifically, the Director may be removed by the Board only for 'inefficiency, neglect of duty, malfeasance or nonfeasance in office.'"); see also Pl.'s Mem. in Supp. of Mot. for Partial Summ. J., pp. 4-9 (Docket No. 101).

ITD contends that the Director's "servi[ce] at the pleasure of the board" unequivocally "creates an employment relationship that 'is at the will of the authority which appointed the officer.'" See Defs.' Opp., pp. 5-6 (Docket No. 28); see also Defs.' Mem. in Supp. of Mot. for Partial Summ. J., pp. 5-9 (Docket No. 118). In this nuanced respect, ITD argues that, "while [section] 40-503 lists subjective grounds for removal, because of the 'serve at the pleasure' language, the ITD Board has exclusive discretion to decide whether any of those grounds exist." See Defs.' Resp. to Req. for Add'l Briefing, p. 12 (Docket No. 50).

Lowe's account of section 40-503's purported plain meaning is not without infirmities. First, it leapfrogs the statute's explicit direction that the ITD Director "shall serve at the pleasure of the board" and, by doing so, fails to reconcile the arguable conflict within the section's operative sentence. Second, notwithstanding the general understanding that the term "may" connotes discretion, the Legislature made frequent use of the term "shall" throughout other portions of Idaho Code section 40-503,*fn1 highlighting the possibility that the Legislature's use of the term "may," rather than other, more concrete, limiting language was a deliberate attempt to differentiate mandatory conduct from permissive conduct. See Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 346 (U.S. 2005) ("The word "may" customarily connotes discretion. That connotation is particularly apt where, as here, "may" is used in contraposition to the word "shall" . . . ").*fn2 Third, there is no fixed statutory term for an ITD Director's employ, suggesting (as Lowe's counsel, in fact, stated during oral argument) that the ITD Director will remain in his or her position indefinitely, regardless of changes in the elected officials, or the makeup of the ITD Board, over time.*fn3 Fourth, "statutes that are in pari materia, i.e., relating to the same subject, should be construed harmoniously, if possible, so as to further the legislative intent." See State v. Gamino, 230 P.3d 437, 438-39 (Idaho Ct. App. 2010).

ITD's position is also less-than-airtight. Particularly problematic is the inexact fit of ITD's argument that its Director is an at-will employee who may be dismissed at any time upon the ITD Board's discretion, into section 40-503's explicit reference to four distinct reasons for removing the Director. That is to say, ITD's massaged interpretation seems to set aside the Idaho Legislature's specific inclusion of particular types of unsatisfactory job performance into the statute, as if the language was some sort of statutory "aside," a "by the way, some of things you could choose for firing might include these things" remark in passing. The Court might be inclined to agree with ITD's interpretation of section 40-503, if the Legislature simply said the ITD Director "shall serve at the pleasure of the board," without the further proviso, made part of the same sentence, that the Director "may be removed by the board for inefficiency, neglect of duty, malfeasance or nonfeasance in office." But that is not the case here.

In such crosscurrents, it might seem that ambiguity is inescapable. However, the fact that different readings can be made of the statute does not automatically equate to ambiguity -- were that so, all statutes that are the subject of litigation could be considered ambiguous. Consider that:

The plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover. Rule of construction to consider object and purpose has no place when words of act leave no doubt.

John Hancock Mut. Life Ins. Co. v. Haworth, 191 P.2d 359, 362 (Idaho 1948) (internal citations omitted). Here, both parties understandably mine section 40-503 for language supporting their own arguments. Yet, each of the competing templates offered to the Court fails to give sufficient meaning to all the words of the statute as this Court must attempt to do.*fn4

a. Discerning the "Purpose" of the Reorganization of the Executive Branch and the Implication of the Treatment of the Hiring and Firing of Other Agency Department Heads (and Agency Boards) Upon the Meaning of Idaho Code Section 40-503.

In its proposed decision, the Court drew upon the nature of the reorganization of the executive branch of government that had taken place in the early 1970s, which both predated and precipitated the creation of the ITD in 1974. Included in that analysis was the Court's assessment of the political pressures at play in the various arenas of the executive branch of government, and the Court's conclusion that the Legislature was particularly sensitive to the potential for political mischief in decision-making concerning the State highway system.

Some of the Court's reasoning in that regard was subject to legitimate criticism from ITD. ITD pointed out that the regional make-up of a state highway board (which is one protection against overtly politically-pressured decision-making on highway decisions) had come into existence not with the reorganization of highway department as part of the Commission's work, but rather had existed in statute as the "Board of Highway Directors" for a number of years prior to that. Therefore, ITD contends that the Court's emphasis upon the political firewall created in the ITD Board as one basis for the Court's reading of section 40-503 was unsupportable as being a pre-existing choice of the Legislature, not a "new" direction drawn at the time of the executive branch reorganization.

ITD also contends that the Court's proposed reading of the statute was completely at odds with the intention of the Legislature toward executive department heads generally. In that regard, both ITD and Lowe dissect at some length the particular manner in which other department employees are appointed, and the nature of their employment relationship, under Idaho law. See Pl.'s Mem. in Supp. of Mot. for Partial Summ. J., pp. 5-7, 12-15 (Docket No. 101); Defs.' Mem. in Supp. of Mot. for Partial Summ. J., pp. 9-13, 21-22 (Docket No. 118).

ITD argues that a close reading of the statutes dealing with other department heads illustrates a consistent intention to treat such positions as "at-will" in nature. See, e.g., Defs.' Mem. in Supp. of Mot. for Partial Summ. J., pp. 21-22 (Docket No. 118). Lowe argues that a close reading demonstrates that there was no such consistency. See Pl.'s Mem. in Supp. of Mot. for Partial Summ. J., pp. 5-7 (Docket No. 101).

Despite ITD's argument (and the declaration testimony of various of its witnesses (see, e.g., Andrus Decl. at ¶¶ 10-12 (Docket No. 51); Batt Decl. at ¶¶ 8, 15 (Docket No. 52); Manning Decl. at ¶¶ 35, 39, 44-45 (Docket No. 54); Welch Decl. at ¶¶ 28-31 (Docket No. 55)) that the Legislature intended for all agency heads to be at-will employees, in reality, there are both minor and major differences in the statutes that create the various department heads. And, because ITD places much of its emphasis upon the non-classified nature of the ITD Director position as a source of its purported at-will status, it is also useful to look at the Legislature's treatment of agency board members by way of comparison, as they are also non-classified employees.

If there had been a common mind -- a deliberate intention -- to treat each and every agency head identically for purposes of their "at-will" employment status, that could have been easily done. However, although some department heads fit neatly in such a cubbyhole, that is not universally so. Rather, there are variations in who has the power to appoint; in whether the agency head position is indefinite in the term of service, or limited to a set time period; in whether the person serves simply at "the pleasure" of the governor (or a board) who made the appointment; in whether or not there are limited circumstances under which the person can be removed from the office; and in whether or not there are procedures that must be followed before that person can be removed from office. Whatever might have been in the Legislature's collective mind set at the time these various statutes were enacted (particularly when the majority of such statutes were enacted contemporaneously to each other), it demonstrably was not that each and every department head would be treated in identical fashion for hiring and firing purposes.

At the same time, however, the fact that some other department heads (most notably, the Director of the Department of Water Resources) are treated in a manner inconsistent with at-will status does not necessarily mean that the ITD Director is in the same camp. The ITD Director's employment rights, whatever they may be, are those prescribed by section 40-503, and, as described by the Court in its "proposed" decision, that statute is unlike any other statute of similar purpose in the Idaho Code.

b. If Idaho Code Section 40-503 Limits the Reasons for Terminating ITD's Director, the Language Setting Out Such Reasons is Sufficiently Particularized to Constrain the ITD Board's Discretion in Deciding Upon Termination.

Arguing in the alternative, ITD contends that whatever reading the Court may give to section 40-503, the statute nonetheless does not confer a property right upon Lowe in this case because the identified reasons for dismissing the ITD Director are too broad and too subjective. Such reasons, according to ITD, are not "particularized standards" that "significantly constrain" the ITD Board's discretion to remove its Director, thus eliminating any possibility that Lowe has a property ...

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