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Saturday, December 21, 2013
A Conditional Use Permit (“CUP”) issued by a government agency is a property right. Any decision made by a local land use board that affects property, or any individual having an interest in that property, must be made in accordance with due process constraints. Meaning, that in order for a CUP to be amended or terminated, the agency must give the holder notice and a right to respond. If notice and a right to respond are not granted before changes to the CUP are made, a violation of the holder’s civil rights may have occurred. 
 
The Constitutions of both the United States and the State of Idaho prohibit deprivation of “life, liberty, or property, without due process of law.” U.S. Const. amends. 5 and 14; Idaho Const. art. I, § 13. Once granted, “[a] permit is a valuable property right and can only be revoked as provided by statute.” Allied Van Lines, Inc., 79 Idaho at 225, 312 P.2d at 1053 (1957). “[C]ounties have the authority to grant new conditional use permits which modify existing permits.” Chambers v. Kootenai County Board of Comm’rs, 125 Idaho 115, 117, 867 P.2d 989, 991 (1994). However, the basic tenets of due process are applicable to the modification of an existing CUP. Chambers, 125 Idaho at 118, 867 P.2d at 992. And, before a CUP may be revoked, “[t]here must be a definite charge that the permit holder has violated or refused to observe some order or regulation of the Commission or some applicable state law.” Allied Van Lines, Inc., 79 Idaho at 225, 312 P.2d 1053. After the permitee is provided notice of violation, all remaining due process requirements must also be afforded. Allied Van Lines, Inc., 79 Idaho at 225, 312 P.2d 1053; Angstman, 128 Idaho at 578, 917 P.2d at 412.
 
In Idaho, “a decision by a zoning board applying general rules or specific policies to specific individuals, interest or situations, are quasi-judicial in nature and subject to due process constraints.” Chambers v. Kootenai County Board of Comm’rs, 125 Idaho 115, 118, 867 P.2d 989, 992 (1994). As such, due process safeguards apply to proceedings conducted by local zoning boards regarding whether to grant a CUP, or to review and grant a new CUP that modifies an existing permit. Chambers, 125 Idaho at117, 867 P.2d at 991; Angstman v. City of Boise, 128 Idaho 575, 578, 917 P.2d 409, 412 (Idaho Ct. App. 1996). At a minimum, due process requires: a hearing and notice of each proceeding; an opportunity to be present and rebut evidence; a transcribable verbatim record of the proceedings; specific, written findings of fact and conclusions upon which a decision is based; and right to appeal. I.C. §§ 67-6512, 67-6519 and 67-6535(4); Allied Van Lines, Inc. v. Idaho Pub. Utilities Comm’n, 79 Idaho 220, 225, 312 P.2d 1050, 1053 (1957); Angstman, 128 Idaho at 578, 917 P.2d at 412. To ensure due process constraints are respected, a municipality will be liable for “‘systemic’ injuries that result not so much from the conduct of any single individual, but from the interactive behavior of several government officials, each of whom may be acting in good faith.” Chalmers v. City of Los Angeles, 762 F.2d 753, 757 (9th Cir. 1985) quoting Owen v. City of Independence, 445 U.S. 622, 652 (1980).
Posted by eswartz at 12/21/2013 7:43:00 PM
Thursday, December 5, 2013
Attorney-client communications are protected from disclosure. The client is in control of the privilege. Being in control, the client can maintain or waive the attorney-client privilege. “An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.” I.C. § 9-203. The word “client” includes a person, a corporation, or an association. I.C. § 9-203. The attorney-client privilege exists as an exception to the rule that all relevant evidence must be disclosed by all parties involved in a lawsuit.
 
There exists a “fundamental principle that the public has the right to every man’s evidence … .” Garner v. Wolfinbarger, 430 F.2d 1093, 1100 (5th Cir. 1970) (citing 8 Wigmore, Evidence, § 2192 at 70.) Exceptions from the general duty to give testim
Posted by eswartz at 12/5/2013 11:36:00 PM
Friday, November 22, 2013
As the old adage goes, an ounce of prevention is worth a pound of cure. There is no other place that this rings more true than in the formation of a business relationship. Taking a moment or two to outline the details is an important step and can prevent a long and drawn-out legal battle in the future. While it is nearly impossible to anticipate every potential problem, problems nonetheless should be expected to arise, and problems usually involve having to hire an attorney.   Addressing who should have to pay for attorney fees, and under what circumstances is worthy of consideration when forming a business relationship.   
In Idaho, the general rule is that each party to a lawsuit has to bear their own attorney fees.  Idaho law recognizes two exceptions to the general rule: (1) if a statute involved in the lawsuit provides for attorney fees; or (2) if the parties’ agreement at issue in the lawsuit provides for attorney fees.  Attorney fees by statute are limited to certain circumstances. Attorney fees by a provision in a contract can provide for attorney fees on your terms.   Even if the parties agree to arbitration, without a provision in the parties’ agreement providing for attorney fees in arbitration, not even a successful party to the arbitration will be able to get their attorney fees reimbursed.
While thinking about and planning for destruction at the time that you are trying to create something seems counter intuitive, if you put in a little effort into preventing a problem, you will not have to put in a lot of effort into solving the problem should it arise later. Attorney fees are a problem that can, and should be addressed in every agreement.    
Posted by eswartz at 11/22/2013 5:40:00 PM
Friday, November 8, 2013
Idaho Courts’ approach to determining whether or not a worker is an independent contractor or an employee is much like Juliet pondered:  “What’s in a name?  That by which we call a rose by any other name would smell as sweet.” Simply because an employer designates a worker as an independent contractor, does not make that worker an independent contractor any more than the name of a rose makes it smell sweet.
In fact, the designated name is the least important item a court examines when determining the employment relationship. Courts immediately brush past the designation an employer provides. Instead, courts examine the nature of the relationship between the parties. The principal factor the court examines is the amount of control that an employer exercises over a worker’s performance of job duties. The more control an employer retains, the more likely that a worker is an employee, rather than an independent contractor.
An employer’s control is determined by the level of supervision an employer exercises over the worker. For instance, if the employer controls the manner in which a job is performed, has a requirement for specific hours a person must work or meetings that a person must attend, the employer is retaining a significant amount of control over the work. Conversely, if there is little supervision as to how the job is actually performed, or when, and the only requirement is that the work be completed, there is very little control retained by the employer. The less control placed upon a worker, the more likely the worker is a true independent contractor.
Examination of the employer’s control is reflected in Idaho case law as well.  “If the employer retains the right to control and to direct the activities of the employee in the details of work performed, and to determine the hours to be spent and the times to start and stop the work, the person performing the work will be an employee.” State ex rel. Department of Labor & Indus. Servs. v. Hill, 118 Idaho 278, 283, 796 P.2d 155, 160 (1990). In Hill, the Supreme Court affirmed the lower court’s ruling that simply because the employer called the worker an independent contractor, “we look not to the labels applied by the parties, but rather to the actual indicia of such a relationship.”  Id. 
While there are litanies of factors a court can examine, the most prominent is the level of control. In this instance, it is accurate that names do not matter; courts are only concerned about the actual particulars of the employment relationship. As Juliet pleads, “Romeo, doff thy name ....”  Names do not matter; instead, courts focus on details of the parties’ relationship.
Posted by eswartz at 11/8/2013 9:13:00 PM
Saturday, November 2, 2013

In Idaho, the general rule of law is that a liability insurer owes a duty to defend its insured against claims that create a potential for indemnity.  As such, the insurer must defend a lawsuit that potentially seeks damages within the coverage of the insurance policy held by the insured.  Implicit in this rule is the principle that the duty to defend is broader than the duty to indemnify because the insurer may be obligated to defend its insured in a lawsuit in which no settlement occurs or no damages are ultimately awarded.  The determination whether the insurer owes a duty to defend is usually made by comparing the allegations of the complaint with the terms of the insurance policy.  Facts from outside sources – extrinsic to the complaint – may also give rise to a duty to defend when those facts reveal a possibility that the claim may be covered by the policy.  Further, the duty to defend is a continuing one, arising upon the tender of defense by the insurer and lasting until the underlying lawsuit is concluded, or until the insurer has determined that there is no potential for coverage.  If the insurer determines at the outset of the suit that, based on the facts known to it at that time, there is no potential for coverage, the insurer does not have a continuing duty to investigate the initial claim or monitor the lawsuit.

Either the insured or the insurance company may bring a declaratory judgment action, which is separate and distinct from the underlying lawsuit, for the purposes of determining whether coverage exists under the policy in relation to the underlying suit, and therefore, whether the insurer has a duty to defend and indemnify its insured.  During a declaratory judgment action, the presiding judge is bound by state statutes and common law principles of contract interpretation in determining the applicability of the insurance policy.

 

Since insurance policies are generally considered a type of adhesion contract, where the insured has little to no input as to the terms of the policy, they are normally liberally construed infavor of the insured.  Where a term contained in the policy is not ambiguous, it will be interpreted according to its plain language.  Where ambiguities do exist in a policy, the court will often consider circumstances or evidence outside of the terms and conditions of the insurance policy, such as what type of coverage had been requested by the insured, or what the insured’s understanding of the terms of the policy were based on discussions with an authorized insurance representative.  And, any ambiguity in the language of the insurance contract will be construed against the insurer.

Posted by eswartz at 11/2/2013 4:57:00 PM
Entries 21-25 of 30
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Feb 20

New Tax Law and Divorce and Alimony

The new federal tax code that may have significant impacts on divorcing spouses in Idaho beginning in 2019.  Under the old tax code, a spouse paying spousal support to the other spouse either while the divorce was pending or after the divo…

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Nov 17

Unwanted Grabbing Appears to be Wanted - Goodbye Sexual Harassment?

It used to be that unwanted touching was, well, unwanted.  But, apparently, that is not what we want any more.  Maybe we never wanted unwanted touching to be unwanted?    Here we are ? 2017 ? with more laws on the books to prohibit, det…

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Jun 29

Beyond Marriage: Legal Issues Same Sex Couples Face

While the Supreme Court?s decision legalizing same-sex marriage established the law regarding marriage rights, many are wondering what that decision means for same-sex couples in areas of the law extending beyond marriage. The United State…

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Apr 13

Pedestrian-Automobile Injuries in Boise ? Follow the Rules of the Road to Keep the Right-of-W…

Boise has had a large number of pedestrian accidents reported lately.   Be careful out there.   As a driver of a car or a pedestrian, refresh yourself on the rules of the road in Idaho.  Generally speaking, Idaho first requires that driver…

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