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“And”

It’s a simple, three-letter grammatical conjunction.

And it can pack an extremely powerful punch, sometimes bringing questionable and even illegal governmental actions to a complete halt.

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It often means that the words or conditions preceding and succeeding it must be present.

For example, in arithmetic (or “mathematics” if you went to private school), consider the expression “One and three equals four.”  Four can be the result only if one and three are both present.  If both one and three are absent or if either one or three are absent, the result cannot be four.

Now consider the phrase “ordinary and necessary.”  That’s what Idaho First District Court Judge John Luster has been petitioned to do by the City of Coeur d’Alene.  The City wants to avoid putting a $32 million wastewater treatment project to a vote of the people.  The Idaho Constitution, Article VIII, Section 3 requires such a vote unless that money is considered one of the “… ordinary and necessary expenses authorized by the general laws of the state…”

Idaho Code, Title 7, Chapter 13 explains how and under what circumstances a district court judge can be entrusted with the authority to make a decision that the Idaho Constitution, Article VIII, Section 3 says may otherwise be made only by the voters.  That process is called “judicial confirmation.”   The statutory requirements the judge must meet are in Idaho Code, §7-1308.  As you might guess, because “judicial confirmation” amounts to circumventing a vote of the people, it is a decision not to be taken lightly by any district court judge.

Among those powers most jealously guarded by the people is the power of local government to incur debt and to expend money on its residents’ behalf. Therefore, the framers at Idaho’s constitutional convention decided to severely limit local government authority to incur debt in Article VIII, §3 of the Idaho Constitution. From the beginning, local governments have tested its limits, developing many schemes designed to avoid the consequences of this article. Historically, the appellate courts have resisted their efforts, opining that the courts cannot and should not amend the clear constitutional prohibitions by judicial fiat.

Judge Luster has been asked by the City of Coeur d’Alene to find that its proposal for millions of dollars indebtedness is both ordinary and necessary.

By filing a Petition, [Coeur d’Alene] requests the Court examine the Agreement and determine whether the Agreement can be validly executed in the absence of voter approval.   … the law clearly requires the Court to independently examine the Petition and the Petitioner’s claims even in the absence of property owner, taxpayer, or elector objections. The Court is not allowed to simply “rubber stamp” a Petitioner’s request.

… whether taxpayers, property owners or voters appear in the action is irrelevant. The Court is required to make its own inquiry and findings.

Over the years there have been many court cases that have tried to define “ordinary” and “necessary”  individually as well as collectively.

These cases fit into three distinct categories. Some concerned the repair of existing facilities. Others involved performing ordinary maintenance on existing facilities. Still others involved the “ordinary and necessary” construction of new facilities to meet the requirements for essential services of newly created local governments.

In general, Idaho courts have rejected cities’ contentions that inadequacy alone of an existing facility justifies the expense as being “ordinary and necessary.”  In Coeur d’Alene’s proposal, then, an assertion that it needs to expand the capability of the existing wastewater treatment plant to meet future as yet imprecisely defined regulations or future customer demand might be rejected by the district court.  While Judge Luster might agree that the expansion is desirable in anticipation of future regulations or customer demand and that it is in the best interests of Coeur d’Alene residents, the project’s desirability is not the issue before the district court. By statute, the district court’s role is limited to determining whether this project is an indebtedness or liability that is both “ordinary and necessary”  warranting judicial approval instead of a vote of the people.

Idaho courts have pretty consistently ruled that while a project may meet the “ordinary” standard, it must also meet the separate “necessary” standard.   For ease of understanding, insert the words “urgent” or “exigent” in place of “necessary.”  For example,  if Coeur d’Alene’s existing wastewater treatment plant were to be catastrophically destroyed by fire, it is hard to imagine that any district court judge would not say that restoring it and its services to the present level of service would almost certainly meet the “ordinary and necessary” standard.    It is less certain, however, that the court would allow the reconstruction to include expansion for future needs simply because it would be convenient to expand it during reconstruction.

Thus, in the present Coeur d’Alene petition, judicial confirmation might be denied if the judge finds that sufficient proof of either standard,  “ordinary” or “necessary” is lacking.   Both “ordinary” and “necessary” must be present.

The Idaho Legislature appropriately gave district court judges the statutory authority to bypass the voters in highly unusual and urgent circumstances where time is of the essence in the maintenance of already existing municipal government functions.  The Legislature did not, however, intend for the judicial confirmation process to be a handy-dandy tool for public officials to abuse to simply avoid seeking voter approval to incur long-term indebtedness or liabilities.   The Legislature presumed that district court judges would not allow judicial confirmation to be abused.  We hope the Legislature’s presumption proves true here in Coeur d’Alene.  We hope that Judge Luster gives due deference to the “and” in “ordinary and necessary.”

(Note:  The indented italicized material was taken from Fourth District Court Judge Cheri C. Copsey’s decision in 2002 denying the petition for judicial confirmation by the City of Boise for a new police station.  Judge Copsey’s decision is worth reading as an example of how a diligent judge analyzes a petition for judicial confirmation.)