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IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 43922

TRACY TUCKER, JASON SHARP, NAOMI 

MORLEY, JEREMY PAYNE, on behalf of 

themselves and all others similarly situated,

 Plaintiffs-Appellants,

v.

STATE OF IDAHO; C.L. "BUTCH" 

OTTER, in his official capacity as Governor 

of Idaho; HON. LINDA COPPLE TROUT, 

DARRELL G. BOLZ, SARA B. THOMAS, 

WILLIAM H. WELLMAN, KIMBER 

RICKS, SEN. CHUCK WINDER, and REP. 

CHRISTY PERRY, in their official capacities 

as members of the Idaho State Public Defense 

Commission,

 Defendants-Respondents.

 

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Boise, January 2017 Term

2017 Opinion No. 38

Filed: April 28, 2017

Stephen W. Kenyon, Clerk 

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada 

County. Hon. Samuel A. Hoagland, District Judge. 

District court order dismissing class action complaint, affirmed in part, reversed

in part and remanded. 

American Civil Liberties Union of Idaho Foundation, Richard Alan Eppink, 

Boise, for appellants. Jason D. Williamson argued. 

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondents 

Governor C.L. “Butch” Otter, Trout, Bolz, Ricks, Winder and Perry. Michael S. 

Gilmore, Deputy Attorney General argued. 

Cantrill, Skinner, Lewis, Casey & Sorensen, LLP, Boise, for respondents Thomas 

and Wellman. Daniel J. Skinner argued. 

_________________________________

BURDICK, Chief Justice.

Tracy Tucker, Jason Sharp, Naomi Morley, and Jeremy Payne, on behalf of themselves 

and all other similarly situated (Appellants), bring this appeal from the Ada County District 
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Court. Appellants filed a class action complaint in which they alleged Idaho’s public defense 

system is inadequate under federal and state constitutional standards. The district court reasoned 

that Appellants’ claims were not justiciable on standing, ripeness, and separation of powers 

grounds and dismissed the complaint. We affirm in part, reverse in part, and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellants constitute a putative class of criminal defendants who seek to challenge 

Idaho’s public defense system. They filed a class action complaint on June 17, 2015. Appellants 

allege Idaho’s public defense system violates the Sixth and Fourteenth Amendments to the U.S. 

Constitution and Article I, Section 13 of the Idaho Constitution. As defendants, Appellants 

named (1) the State of Idaho; (2) Governor C.L. “Butch” Otter, in his official capacity; and (3) 

the seven members of the Idaho Public Defense Commission (PDC), in their official capacities.1

Appellants seek various forms of equitable relief, including a declaration that Idaho’s public 

defense system is unconstitutional and an injunction requiring Respondents to bring Idaho’s 

public defense system into constitutional compliance. 

Respondents moved to dismiss the complaint, arguing the case was not justiciable 

because Appellants did not sue the proper defendants. Since the provision of public defense has 

been delegated to Idaho’s forty-four counties under Idaho Code section 19-859, Respondents 

maintained that Appellants erred by not suing the counties. Appellants countered that the State is 

ultimately responsible for ensuring constitutionally adequate public defense, contending they had 

sued the proper defendants. 

The district court held that Appellants’ claims were not justiciable and dismissed their

complaint on standing, ripeness, and separation of powers grounds. This appeal timely followed.

II. ISSUES ON APPEAL

1. Is the State of Idaho immune from state law claims alleging constitutional violations?

2. Do the justiciability doctrines bar this lawsuit?

3. Are Appellants entitled to attorney fees on appeal?

III. STANDARD OF REVIEW

“Jurisdictional issues, like standing, are questions of law, over which this Court exercises 

free review.” In re Jerome Cnty. Bd. of Comm’rs, 153 Idaho 298, 308, 281 P.3d 1076, 1086 

 1 These three entities are collectively referred to as Respondents. 
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(2012). Similarly, this Court has free review over whether dismissal for lack of jurisdiction was 

properly granted. See Meisner v. Potlatch Corp., 131 Idaho 258, 260, 954 P.2d 676, 678 (1998). 

IV. ANALYSIS

We first address the two main bases of the district court’s dismissal order: immunity, and 

the justiciability doctrines. We then address whether Appellants should receive attorney fees on 

appeal.

A. Is the State of Idaho immune from state law claims alleging constitutional 

violations?

Appellants sued (1) the State of Idaho; (2) Governor C.L. “Butch” Otter, in his official 

capacity; and (3) the seven members of the Idaho Public Defense Commission (PDC), in their 

official capacities. Against each defendant, Appellants alleged claims under the Sixth and 

Fourteenth Amendments to the U.S. Constitution and Article I, Section 13 of the Idaho 

Constitution. Concerning immunity, the district court held that the State was immune from the 

federal law claims alleged, but not the state law claims. The district court further held that neither 

Governor Otter nor the PDC have immunity. The only immunity issue before us on appeal is 

whether the State is immune from Appellants’ state law claims alleging constitutional violations. 

Respondents set forth two bases to contend the State is immune. First, they contend Idaho 

Rule of Civil Procedure 3(b) shields the State from claims under state law for injunctive relief. In 

relevant part, when the complaint was filed, Rule 3(b), entitled “Designation of Parties,”

provided: 

[A]ll civil actions by or against a governmental unit or agency, or corporation, 

shall designate such party in its governmental or corporate name only, and 

individuals constituting the governing boards of governmental units . . . shall not 

be designated as parties in any capacity unless the action is brought against them 

individually or for relief under Rules 65 or 74.

I.R.C.P. 3(b) (2015).2

Respondents bolster their argument with Weyyakin Ranch Property Owners’ Association, 

Inc. v. City of Ketchum, 127 Idaho 1, 1–3, 896 P.2d 327, 327–29 (1995). In Weyyakin, the 

plaintiff sued the City of Ketchum, seeking to enjoin enforcement of a subdivision annexation 

ordinance. Id. The plaintiff obtained a temporary restraining order (TRO) enjoining the 

ordinance. Id. When the City of Ketchum, through its elected officials, failed to comply with the 

 2 Effective July 1, 2016, this rule no longer exists. The only “Designation of Parties” rule that currently exists is 

Rule 3(c), which provides: “Any filing party must be designated as the plaintiff or petitioner, and any party against 

whom the same is filed must be designated as the defendant or respondent.” 
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TRO, the district court held the officials in contempt. Id. On appeal, this Court held that the 

district court’s contempt order violated Rule 3(b) because the complaint named the “City of 

Ketchum,” not the “elected officials individually.” Id. at 3, 896 P.2d at 329.

Respondents’ argument is unavailing. Nothing in the plain language of Rule 3(b) shields

the State from claims under state law for injunctive relief. Nor does Weyyakin support 

Respondents’ argument. Weyyakin merely held that the district court erred by holding the elected 

officials in contempt because they were not named in the complaint “individually or for relief

under Rules 65 or 74,” as Rule 3(b) required. Id. As a result, “[b]ecause the temporary 

restraining orders failed to name the elected officials individually, the trial court never obtained 

jurisdiction over them, and therefore did not have the authority to find them in contempt.” Id.

Nothing similar is at issue in this case. 

Second, Respondents argue the doctrine of sovereign immunity shields the State from 

Appellants’ state law claims alleging constitutional violations. “It is the general rule that, under 

the doctrine of sovereign immunity, a governmental unit can only be sued upon its consent.” Bott 

v. Idaho State Bldg. Auth., 128 Idaho 580, 591, 917 P.2d 737, 748 (1996). Even so, many other 

jurisdictions hold that sovereign immunity does not apply when constitutional violations are 

alleged, as a contrary rule would render constitutional rights meaningless. See, e.g., Columbia 

Air Servs., Inc. v. Conn. Dep’t of Transp., 977 A.2d 636, 645 (Conn. 2009); Fla. Dep’t of 

Revenue v. Kuhnlein, 646 So. 2d 717, 721 (Fla. 1994); Corum v. Univ. of N.C. Through Bd. of 

Governors, 413 S.E.2d 276, 292 (N.C. 1992); Ashton v. Brown, 660 A.2d 447, 463 (Md. Ct. 

App. 1995); Kilgo v. Ga. Dep’t of Corrs., 413 S.E.2d 507, 508 (Ga. Ct. App. 1991).

Though we have never addressed the issue, we have recognized that because sovereign 

immunity is a common law doctrine, the judiciary has the power to modify it. Haeg v. City of 

Pocatello, 98 Idaho 315, 317, 563 P.2d 39, 41 (1977). Were we to accept Respondents’ position 

that sovereign immunity shields the State from suit in this instance, we would leave parties 

unable to vindicate constitutional rights against the State. This we decline to do. Accordingly,

aligning with our sister jurisdictions identified above, we hold that sovereign immunity is 

inapplicable when constitutional violations are alleged.

B. Do the justiciability doctrines bar this lawsuit?

The justiciability doctrines are the second basis of the district court’s dismissal order. The 

justiciability doctrines “identify appropriate or suitable occasions for adjudication by a court.”
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State v. Philip Morris, Inc., 158 Idaho 874, 881, 354 P.3d 187, 194 (2015). Before reviewing the 

district court’s justiciability analysis, we take a moment to clarify which standard of review 

should be employed when justiciability challenges are made. We note that the district court 

applied Idaho Rule of Civil Procedure 12(b)(6). Rule 12(b)(6) governs dismissal for failure to 

state a claim, inquiring into the factual sufficiency of the substantive claims alleged. The 

justiciability doctrines, however, are wholly dissimilar from whether a substantive claim is 

adequately alleged. Indeed, the justiciability doctrines implicate jurisdiction. E.g., Martin v. 

Camas Cnty. ex rel. Bd. of Comm’rs, 150 Idaho 508, 512, 248 P.3d 1243, 1247 (2011).

As such, we pronounce that justiciability challenges are subject to Idaho Rule of Civil 

Procedure 12(b)(1) since they implicate jurisdiction.3 This, in turn, gives rise to a different 

standard of review than the one which Rule 12(b)(6) supplies. See Owsley v. Idaho Indus. 

Comm’n, 141 Idaho 129, 133 n.1, 106 P.3d 455, 459 n.1 (2005). The district court’s error in this 

regard, however, does not constitute grounds for reversal. For one, our earlier cases left the issue 

unsettled. Compare Martin, 150 Idaho at 512, 248 P.3d at 1247 (“Where a plaintiff does not have 

standing it cannot be said that the ‘case or controversy’ requirement has been satisfied; therefore 

the judiciary lacks jurisdiction to hear the case.”), with Brooksby v. Geico Gen. Ins. Co., 153 

Idaho 546, 547–48, 286 P.3d 182, 183–84 (2012) (addressing standing under Rule 12(b)(6)). 

Moreover, Appellants did not raise the issue in their opening brief. See Gallagher v. State, 141 

Idaho 665, 669, 115 P.3d 756, 760 (2005) (explaining that issues not raised in the opening brief 

are waived). Thus, although we clarify which standard of review governs, we disregard the error. 

See I.R.C.P. 61 (“At every stage of the proceeding, the court must disregard all errors and defects 

that do not affect any party’s substantial rights.”).

Aligning our focus back to the present case, the district court’s order addressed three 

justiciability doctrines: (1) standing; (2) ripeness; and (3) separation of powers.4

 3 The same is true in federal court, which results in justiciability challenges being reviewed under Rule 12(b)(1). 

E.g., Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (“The district court erroneously concluded that 

lack of Article III standing was grounds for dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to 

state a claim.”). And, as we explained previously, “Idaho has adopted the federal justiciability requirement.” Noh v. 

Cenarrusa, 137 Idaho 798, 801, 53 P.3d 1217, 1220 (2002). 4 Appellants note that standing and ripeness were “never raised, briefed, or argued by either side,” yet the district 

court addressed the doctrines. Even so, the justiciability doctrines can be raised sua sponte at any time. See, e.g., 

Campbell v. Parkway Surgery Ctr., LLC, 158 Idaho 957, 962, 354 P.3d 1172, 1177 (2015) (“[T]his Court has a duty 

to raise the issue of standing sua sponte.”); Thomas v. City of N.Y., 143 F.3d 31, 34 (2d Cir. 1998) (explaining that 

because the “ ‘ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential 
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1. Standing

In a class action, standing is met if at least one named plaintiff satisfies the requirements 

of standing against every named defendant. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 978 

(9th Cir. 2011); Henry v. Circus Circus Casinos, Inc., 223 F.R.D. 541, 544 (D. Nev. 2004). In 

order to have standing to seek injunctive relief, a plaintiff must demonstrate a likelihood of 

repeated injury or future harm to the plaintiff in the absence of the injunction. See City of Los 

Angeles v. Lyons, 461 U.S. 95, 102–03 (1983).

Appellants argue they have standing under the traditional and “relaxed” analyses. Both 

are discussed below.

(a) The traditional standing analysis

Under the traditional standing analysis, “the plaintiff must show (1) an ‘injury in fact,’ (2) 

a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a 

‘like[lihood]’ that the injury ‘will be redressed by a favorable decision.’ ” Philip Morris, 158 

Idaho at 881, 354 P.3d at 194 (citation omitted).

(i) Injury in fact

Injury in fact requires the injury to “be ‘concrete and particularized’ and ‘actual or 

imminent, not conjectural or hypothetical.’ ” Id. (citation omitted). The district court concluded 

Appellants’ allegations did not satisfy this standard, emphasizing how Appellants had not been 

convicted or sentenced, nor had they pursued any appeal or post-conviction relief.

The district court erred on two primary bases. First, the district court erred factually by 

concluding no Appellant had been convicted. The complaint alleged Tucker had pled guilty and 

was awaiting sentencing. An affidavit filed with the complaint set forth the same information. 

Second, the district court erred by attempting to undertake case-by-case inquiries into 

Appellants’ individual criminal cases. The district court treated Appellants’ allegations as subject 

to Strickland v. Washington, 466 U.S. 668, 687–88 (1984), which contemplates case-by-case 

analyses of ineffective assistance of counsel claims by inquiring whether (1) counsel’s 

performance was deficient; and (2) counsel’s deficiency prejudiced the defendant. Strickland 

authorizes relief in individual criminal cases by, for example, allowing courts to vacate 

convictions due to counsel’s ineffective assistance. The Court in Strickland was very clear about 

 

reasons for refusing to exercise jurisdiction,’ the court can raise it sua sponte, and, indeed, can do so for the first 

time on appeal.” (citation omitted)).
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the individualized analysis it was creating. Id. at 690 (“Thus, a court deciding an actual 

ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts 

of the particular case, viewed as of the time of counsel’s conduct.”). Strickland, therefore, is 

inapplicable when systemic deficiencies in the provision of public defense are at issue. E.g., 

Kuren v. Luzerne Cty., 146 A.3d 715, 746–47 (Pa. 2016); Hurrell-Harring v. New York, 930 

N.E.2d 217, 221–22 (N.Y. Ct. App. 2010).

The issues raised in this case do not implicate Strickland. Appellants alleged systemic, 

statewide deficiencies plaguing Idaho’s public defense system. Appellants seek to vindicate their 

fundamental right to constitutionally adequate public defense at the State’s expense, as required 

under the Sixth Amendment to the U.S. Constitution, and Article I, Section 13 of the Idaho 

Constitution. They have not asked for any relief in their individual criminal cases. Rather, they 

seek to effect systemic reform. Their allegations find support in both Gideon v. Wainwright, 372 

U.S. 335, 342 (1963), and State v. Montroy, 37 Idaho 684, 690, 217 P. 611, 614 (1923), which 

make clear that it is the State’s obligation to provide constitutionally adequate public defense at 

critical stages of the prosecution. Alleging systemic inadequacies in a public defense system 

results in actual or constructive denials of counsel at critical stages of the prosecution suffices to 

show an injury in fact to establish standing in a suit for deprivation of constitutional rights. Cf.

Luckey v. Harris, 860 F.2d 1012, 1016–17 (11th Cir. 1988), cert. denied, 495 U.S. 957 (1990).

As a result, we conclude Appellants satisfy the injury in fact standard because the 

complaint alleged actual and constructive denials of counsel at critical stages of the prosecution. 

A criminal defendant who is entitled to counsel but goes unrepresented at a critical stage of 

prosecution suffers an actual denial of counsel and is entitled to a presumption of prejudice. See 

United States v. Cronic, 466 U.S. 648, 658–60 (1984). As to allegations of actual denials of 

counsel, Tracy Tucker, Jason Sharp, and Jeremy Payne were not represented by counsel at their 

initial appearances. During the initial appearances, bail was set. Since Tucker, Sharp, and Payne 

could not afford to post bail, they remained in jail for varying lengths of time—three months for 

Tucker; two weeks for Sharp; and five months for Payne. These allegations illustrate violations 

of constitutional and statutory requirements. See I.C. § 19-852(1)(a); Rothgery v. Gillespie Cnty., 

Tex., 554 U.S. 191, 194 (2008) (“This Court has held that the right to counsel guaranteed by the 

Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is 

told of the formal accusation against him and restrictions are imposed on his liberty.”).
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The complaint also alleged constructive denials of counsel. A constructive denial of 

counsel occurs when “although counsel is available to assist the accused during trial, the 

likelihood that any lawyer, even a fully competent one, could provide effective assistance is so 

small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the 

trial.” Ramsey v. State, 159 Idaho 887, 891, 367 P.3d 711, 715 (Ct. App. 2015) (citing Cronic, 

466 U.S. at 659–60). Naomi Morley, though represented by counsel via counsel’s video presence 

at the initial appearance, had no opportunity to speak with counsel during her initial appearance. 

As to Morley, the complaint further alleged the following additional constructive denials:

On information and belief, Ms. Morley’s lawyer’s caseload has been so large, and 

his resources so few, that he has been unable to review Ms. Morley’s extensive 

comments on the police reports in her case or to investigate the vehicle involved 

in the accident before the state scrapped it, destroying that evidence. Further, Ms. 

Morley has been unable to communicate effectively or consistently with her 

attorney, and is concerned that her attorney is pressuring her to plead guilty 

because he does not have the time or resources to prepare sufficiently for trial.

As to Tracy Tucker, the complaint alleged the following constructive denials:

As of 10 days prior to Mr. Tucker’s trial date, his attorney’s demanding schedule 

had prevented him from conducting any meaningful investigation into Mr. 

Tucker’s case, reviewing and explaining to Mr. Tucker the relevant discovery 

materials, or discussing trial strategy with Mr. Tucker. On June 2, 2015, Mr. 

Tucker pleaded guilty to attempted strangulation, at which time he was released 

from jail. Mr. Tucker is scheduled to be sentenced on August 3, 2015, and faces 

up to 15 years in prison.

As to Jason Sharp, the complaint alleged the following constructive denials:

Mr. Sharp has been unable to communicate effectively with his attorney regarding 

the status of his case. For instance, despite repeated requests from Mr. Sharp, his 

attorney has not yet provided him with a copy of the discovery materials in his 

case, leaving Mr. Sharp unclear about what evidence the State does or does not 

have against him, and making it impossible for Mr. Sharp to participate 

meaningfully in the development of his defense. Moreover, aside from several 

motions to continue his jury trial, Mr. Sharp’s attorney has not filed any 

substantive motions on his behalf.

As to Jeremy Payne, the complaint alleged the following constructive denials: 

Unfortunately, during the five months he was in custody, Mr. Payne was unable to 

communicate with his attorney on a consistent basis. In light of the many other 

felony cases assigned to his attorney, Mr. Payne only met with counsel twice at 

the County Jail, both for very short periods of time. Aside from those brief 

meetings, Mr. Payne has only met with his attorney in court—for even shorter 

periods of time—just prior to his court appearances, and has been unable to 

contact his attorney by phone despite repeated attempts. Indeed, Mr. Payne has 
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spent a total of approximately 30–45 minutes with his attorney since the inception 

of his case. Moreover, to date, Mr. Payne’s attorney has been unable to conduct 

any meaningful investigation into his case, review the relevant discovery with his 

client, or share with Mr. Payne his thoughts with regard to trial strategy and 

related matters.

Recognizing that our analysis at this juncture is simply whether Appellants have alleged 

injuries that are “concrete and particularized” and “actual or imminent,” we conclude the above 

allegations meet the injury in fact standard. 

(ii) Causation

Causation requires the injury to be “fairly traceable to the challenged action of the 

defendant, and not the result of the independent action of some third party not before the court.”

Bennett v. Spear, 520 U.S. 154, 167 (1997). The district court reasoned that causation could not 

be shown, emphasizing that the Legislature and the counties “are the principal bodies with the 

power to affect [sic] the policy (political) and systemic changes Plaintiffs seek.” The district 

court, however, did not conduct separate causation analyses as to each defendant. Since

causation looks at the conduct of each particular defendant, we analyze each separately.

(1) State of Idaho

Concerning the State, Appellants satisfy the causation standard. The right to counsel is 

“made obligatory upon the States by the Fourteenth Amendment.” Gideon, 372 U.S. at 342 

(emphasis added); see also Montroy, 37 Idaho at 690, 217 P. at 614. The State, therefore, has 

ultimate responsibility to ensure that the public defense system passes constitutional muster. 

While the provision of public defense has been delegated to Idaho’s forty-four counties under 

Idaho Code section 19-859, “the ultimate responsibility for fulfilling the . . . constitutional duty 

cannot be delegated.” See Osmunson v. State, 135 Idaho 292, 296, 17 P.3d 236, 240 (2000) 

(explaining that the Legislature could delegate provision of public education to school districts, 

although it could not delegate the ultimate responsibility of fulfilling constitutional duties).

Moreover, it cannot be said that the counties are third parties acting independently of the State 

with respect to public defense. Instead, the counties are political subdivisions of the State. See, 

e.g., Idaho Const. art. XVIII, § 1; State v. Peterson, 61 Idaho 50, 54, 97 P.2d 603, 605 (1939). 

Because Appellants’ alleged injuries are fairly traceable to the State, we hold that causation as to 

the State is met.
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(2) Governor Otter

Unlike the State, the causal chain linking Appellants’ injuries to Governor Otter is too 

attenuated for two primary reasons. First, as the district court reasoned, the provision of public 

defense has been delegated to Idaho’s forty-four counties. I.C. § 19-859. Appellants cite to no

authority suggesting that the counties are beholden to Governor Otter with respect to the 

provision of public defense. The counties therefore act independently of Governor Otter, which 

militates against causation as to him. Bennett, 520 U.S. at 167 (stating that causation means the 

injury cannot be “the result of the independent action of some third party not before the court.”). 

Similarly, although Governor Otter appoints four of the seven PDC members, nothing suggests 

the PDC members—even those he appoints—are beholden to Governor Otter in any way. See 

I.C. § 19-849(1)(c). Instead, the PDC is a self-governing agency. I.C. § 19-849(1).

Equally unavailing is Appellants’ position that Governor Otter is somehow responsible 

for preventing and remedying alleged statewide violations of the right to counsel. The complaint 

alleges, “[a]s the chief executive of the state, Governor Otter bears ultimate responsibility for the 

provision of constitutionally mandated services to the people of Idaho.” Indeed, Governor Otter 

has the “supreme executive power” and is therefore required to “see that the laws are faithfully 

executed.” See Idaho Const. art. IV, § 5. Even so, the weight of authority demonstrates that a 

general duty to enforce state laws is not sufficient to establish a causal connection. E.g.,

Women’s Emer. Network v. Bush, 323 F.3d 937, 949–50 (11th Cir. 2003) (“Where the 

enforcement power is the responsibility of parties other than the governor . . . the governor’s 

general executive power is insufficient to confer jurisdiction.”); Long v. Van de Kamp, 961 F.2d 

151, 152 (9th Cir. 1992).

Attempting to establish a causal nexus with Governor Otter, Appellants cite to Kitchen v. 

Herbert, 755 F.3d 1193 (10th Cir. 2014). In Kitchen, the plaintiffs challenged Utah’s ban on 

same-sex marriage, suing the governor, the attorney general, and the county clerk. Id. at 1200–

01. Only county clerks could issue marriage licenses. Id. County clerks’ duty to issue marriage 

licenses was “purely ministerial,” and the State of Utah controlled the content of the marriage 

application form. Id. at 1202 n.1. Although county clerks issued marriage licenses, the Tenth 

Circuit found a causal nexus with the governor, reasoning as follows:

The Governor and Attorney General have explicitly taken the position in this 

litigation that they “have ample authority to ensure that” the Salt Lake County 

Clerk “return[s] to her former practice of limiting marriage licenses to man-
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woman couples in compliance with Utah law.” This assertion is supported by the 

Utah Code. The Governor is statutorily charged with “supervis[ing] the official 

conduct of all executive and ministerial officers” and “see[ing] that all offices are 

filled and the duties thereof performed.” § 67-1-1(1) & (2). In addition, he “may 

require the attorney general to aid any county attorney or district attorney in the

discharge of his duties.” § 67-1-1(7).

Id. at 1202 (emphasis added).

Similar to Kitchen, Governor Otter has authority to (1) “supervise the official conduct of 

all executive and ministerial officers”; and (2) “see that all offices are filled, and the duties 

thereof performed, or, in default thereof, apply such remedy as the law allows; and if the remedy 

is imperfect, acquaint the legislature therewith at its next session.” I.C. §§ 67-802(1), -802(2). 

However, those duties are discretionary. As Idaho Code section 67-802 states, “the governor has 

th[ose] powers, and may perform th[ose] duties . . . .” (emphasis added). Whereas the statute in 

Kitchen mandated certain executive actions, here the statute simply grants Governor Otter 

discretionary power. Compare U.C. § 67-1-1, with I.C. § 67-802. And, unlike county clerks’

“purely ministerial” duty in Kitchen, here the counties are left with significant discretion in 

fashioning the provision of public defense services. See I.C. § 19-859. Thus, Kitchen does not 

establish a causal nexus with Governor Otter.

Appellants cite also to Los Angeles County Bar Association v. Eu, 979 F.2d 697 (9th Cir. 

1992). The plaintiff in Eu challenged the constitutionality of a statute prescribing the number of 

judges on the Superior Court for Los Angeles County. Id. at 700. The plaintiff alleged the statute 

resulted in a shortage of judges, which, in turn, caused inordinate delays in litigation, deprived 

access to the courts, and violated equal protection by causing litigants in Los Angeles County to 

suffer longer delays than litigants in neighboring counties. Id. The plaintiff sued the governor as 

a defendant, evidently based on his enforcement of the statute at issue via his appointment power

to fill judicial vacancies. Id. at 701, 704. The Ninth Circuit concluded causation was satisfied, 

reasoning as follows:

The chain of causation leading from a determination by this court that the 

dearth of judges in Los Angeles County is unconstitutional to correction of civil 

litigation delays may appear tenuous. However, it does not at any point depend 

upon the “unfettered discretion” of third parties. Were this court to issue the 

requested declaration, we must assume that it is substantially likely that the 

California legislature, although its members are not all parties to this action, 

would abide by our authoritative determination. See Franklin v. Massachusetts, 

505 U.S. 788, ––––, 112 S.Ct. 2767, 2777, 120 L.Ed.2d 636 (1992) (plurality). 

Once the legislature authorized more judicial positions for Los Angeles County, 
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Governor Wilson would, according to the Bar Association, have a legal duty to 

fill those positions. Complaint at ¶¶ 29–30. Even if the new judges were assigned 

only to criminal and other high-priority cases, the speeding of those cases would 

inevitably reduce the delay in general civil litigation. We therefore conclude that 

the Bar Association has adequately demonstrated that, were this court to rule in its 

favor, it is likely that the alleged injury would be to some extent ameliorated.

Id. at 701. In short, because the governor in Eu enforced the statute at issue by making judicial 

appointments, causation was satisfied. See id.

Appellants fare no better under Eu. Unlike the governor’s enforcement of the statute at 

issue via his appointment power in Eu, Governor Otter does not engage in similar conduct. 

Though he appoints four of the seven PDC members, Governor Otter’s involvement with public 

defense ends there. Additionally, in Eu, the plaintiff challenged the statute limiting the number of 

judgeships. Appellants have not made any statutory challenge. Appellants challenge instead 

alleged systemic violations of the right to counsel. But, as noted, Governor Otter’s general duty 

to enforce state law does not establish causation. E.g., Van de Kamp, 961 F.2d at 152.

Accordingly, Appellants do not satisfy causation as to Governor Otter.

(3) The PDC

Concerning the PDC, Appellants satisfy the causation standard. The PDC was created on 

March 26, 2014. See Idaho Public Defense Act, S.L. 2014, ch. 247, § 2. When the complaint was 

filed on June 17, 2015, the PDC was tasked with the following duties:

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(1) The state public defense commission shall:

(a) Promulgate rules in accordance with the provisions of chapter 52, title

67, Idaho Code, establishing the following:

(i) Training and continuing legal education requirements for 

defending attorneys, which shall promote competency and 

consistency in case types including, but not limited to, 

criminal, juvenile, abuse and neglect, post-conviction, civil 

commitment, capital and civil contempt; and

(ii) Uniform data reporting requirements for the annual reports 

submitted pursuant to section 19-864, Idaho Code. The data 

reported shall include caseload, workload and expenditures.

(b) On or before January 20, 2015, and by January 20 of each year 

thereafter as deemed necessary by the commission, make 

recommendations to the Idaho legislature for legislation on public 

defense system issues including, but not limited to:

 5 The PDC’s powers have since been expanded. See Act of July 1, 2016, S.L. 2016, ch. 195, § 1. However, the 

PDC’s expanded powers are not relevant to our causation analysis and instead are discussed with respect to 

redressability and ripeness. See infra Parts V(B)(1)(a)(iii)(2) & V(B)(2)(b).
13

(i) Core requirements for contracts between counties and private 

attorneys for the provision of indigent defense services and 

proposed model contracts for counties to use;

(ii) Qualifications and experience standards for the public 

defender and defending attorneys;

(iii) Enforcement mechanisms; and

(iv) Funding issues including, but not limited to:

1. Training and continuing legal education for defending 

attorneys;

2. Data collection and reporting efforts; and

3. Conflict cases.

(c) Hold at least one (1) meeting in each calendar quarter.

I.C. § 19-850 (2015). In short, the PDC had three mandatory duties: (1) promulgating certain 

rules; (2) making legislative recommendations; and (3) holding quarterly meetings.

Of those three mandatory duties, we conclude the PDC’s rulemaking duty satisfies

causation. As stated, the PDC’s rulemaking duty is twofold: (1) promulgate rules governing

training requirements for public defenders; and (2) promulgate rules governing caseload and 

workload reporting requirements. I.C. § 19-850(1)(a) (2015).

6 Appellants allege their injuries are 

due, in part, to a “lack of ongoing training and professional development” for public defenders, 

and public defenders’ crushing caseloads. They explain that many public defenders’ caseloads 

are “well above national standards and impossible for one person to handle effectively.”

Appellants further allege that, despite the PDC’s awareness that public defenders are receiving

inadequate training while laboring under excessive caseloads and the PDC’s responsibility to 

promulgate rules related to these issues, “no such rules have been promulgated to date.”

Although Respondents contend the PDC is not causally connected to Appellants’ injuries 

because public defense has been delegated to the counties, Respondents overlook the fact that the 

PDC’s rules, if promulgated, would bind the counties. See I.C. § 19-850(1)(a) (2015). Thus, 

Appellants’ injuries—allegedly due, at least in part, to a lack of training and excessive 

caseloads—are fairly traceable to the PDC.

However, the PDC has no other power that would satisfy causation. The PDC’s duties to 

make annual recommendations to the Legislature and to hold quarterly meetings are not causes 

of Appellants’ injuries. Though Appellants emphasize that the PDC has failed to make any 

legislative recommendations, any legislative recommendations would be simply that—

 6 We observe that these same rulemaking duties still exist under the 2016 amendments. I.C. § 19-850(1)(a)(i)-(ii) 

(2016).
14

recommendations. The Legislature would not be obligated to respond to those recommendations

in any particular way. See Bennett, 520 U.S. at 167 (stating that causation means the injury 

cannot be “the result of the independent action of some third party not before the court.”).

We hold that causation as to the PDC is met because of its duty to promulgate rules

governing training and caseload reporting requirements. The PDC’s failure to promulgate these 

rules illustrates that Appellants’ injuries are fairly traceable to the PDC.

(iii) Redressability

Standing’s redressability element ensures that a court has the ability to order the relief 

sought, which must create a substantial likelihood of remedying the harms alleged. See Ciszek v. 

Kootenai Cnty. Bd. of Comm’rs, 151 Idaho 123, 129, 254 P.3d 24, 30 (2011); Gonzales v. 

Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982). Redressability requires a showing that “a 

favorable decision is likely to redress [the] injury, not that a favorable decision will inevitably

redress [the] injury.” Beno v. Shalala, 30 F.3d 1057, 1065 (9th Cir. 1994). However, it cannot be 

only speculative that a favorable decision will redress the injury. Friends of the Earth, Inc. v. 

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).

Redressability and causation often overlap. See, e.g., Wash. Envtl. Council v. Bellon, 732 

F.3d 1131, 1146 (9th Cir. 2013). The concepts “are distinct insofar as causality examines the 

connection between the alleged misconduct and injury, whereas redressability analyzes the 

connection between the alleged injury and requested judicial relief. Redressability does not 

require certainty, but only a substantial likelihood that the injury will be redressed by a favorable 

judicial decision.” Id. (citations omitted).

The complaint requests the following relief:

A) Certify this case as a class action pursuant to Rule 23 of the Idaho Rules of 

Civil Procedure;

B) Declare that the State of Idaho is obligated to provide constitutionally 

adequate representation to indigent criminal defendants, including at their 

initial appearances;

C) Declare that the constitutional rights of Idaho’s indigent criminal defendants 

are being violated by the State on an ongoing basis, and provide a deadline for 

the State to move this Court for approval of specific modifications to the 

structure and operation of the State’s indigent-defense system;

D) Enjoin the State from continuing to violate the rights of indigent defendants 

by providing constitutionally deficient representation;

E) Enter an injunction requiring the State to propose, for this Court’s approval 

and monitoring, a plan to develop and implement a statewide system of public 
15

defense that is consistent with the U.S. Constitution and the Constitution and 

laws of the State of Idaho;

F) Enter an injunction that requires the State to propose, for this Court’s approval 

and monitoring, uniform workload, performance, and training standards for 

attorneys representing indigent criminal defendants in the State of Idaho in 

order to ensure accountability and to monitor effectiveness;

G) Enter an injunction barring the use of fixed-fee contracts in the delivery of 

indigent defense services in the State of Idaho;7

H) Award Plaintiffs and the Class reasonable attorneys’ fees and costs incurred 

during the course of this litigation pursuant to 42 U.S.C. § 1988, I.C. § 12-

117, the Private Attorney General doctrine and other applicable law; and

I) Grant any other relief the Court deems necessary and proper to protect 

Plaintiffs and the Class from further harm.

The district court reasoned that “Plaintiffs ask this Court to basically intervene and 

supersede in every single case, and in every court and county and to then make a blanket 

determination that every indigent criminal defendant’s rights are being violated.” The district 

court found “[s]uch relief [was] too speculative . . . .” The district court did not conduct separate 

redressability analyses as to each defendant. We provide that analysis below.

(1) State of Idaho

Redressability as to the State is satisfied. Ordering Appellants’ requested relief against 

the State would create a substantial likelihood of remedying the injuries alleged because the State 

has the power—and indeed the responsibility—to ensure public defense is constitutionally 

adequate. Additionally, Appellants do not allege deficiencies in just a handful of counties. 

Rather, they allege “longstanding, statewide deficiencies in the Idaho system, which result in 

actual and constructive denial of counsel across the state.” Given that the counties have no 

practical ability to effect statewide change, the State must implement the remedy. 

Unlike the district court, we do not find Appellants’ requested relief is too speculative. 

Were the requested relief ordered, the State would be obligated to create a plan to ensure public 

defense is constitutionally adequate. That plan would cover training standards and workload 

limits, which, as discussed, stand at the root of many of the injuries alleged. Entities tasked with 

providing and overseeing public defense would be bound by the State’s plan. Because 

 7 This request is moot. Idaho law prohibits the use of fixed-fee contracts, although that prohibition only applies to 

contracts “entered into or renewed on or after the effective date” of the 2014 legislation. I.C. § 19-859(4).

Respondents explain that fixed-fee contracts were in place when that prohibition was enacted, but have since been 

phased out. While fixed-fee contracts are in the record, those contracts preceded the statutory prohibition. 
16

Appellants’ requested relief, if ordered against the State, would create a substantial likelihood of 

redressing Appellants’ injuries, redressability as to the State is satisfied.

(2) The PDC

In addition, redressability as to the PDC is satisfied. Set forth above are the PDC’s duties

as of the time when the complaint was filed. See supra Part V(B)(1)(a)(ii)(3). The PDC’s duties, 

however, have since been expanded. See Act of July 1, 2016, S.L. 2016, ch. 195, § 1. The parties 

agree that redressability should be examined in light of these expanded duties. As Respondents 

concede, “[u]nder both Federal and State law, claims for injunctive or other prospective relief are 

adjudicated under the law in effect when the court decides the case, be the case before the trial 

court or an appellate court, because such relief operates in futuro.” See, e.g., Landgraf v. USI 

Film Prods., 511 U.S. 244, 273 (1994) (“When the intervening statute authorizes or affects the 

propriety of prospective relief, application of the new provision is not retroactive.”); Adams 

Cnty. Abstract Co. v. Fisk, 117 Idaho 513, 515, 788 P.2d 1336, 1338 (Ct. App. 1990) (noting that 

“the writ of mandate issued in this case is subject to prospective modification based on the 1989 

statutory amendment,” notwithstanding that the amendment was enacted after the action was 

filed). We conduct our analysis accordingly.

The Legislature amended Idaho’s Public Defense Act, effective July 1, 2016, by 

expanding the PDC’s authority and duties. See Act of July 1, 2016, S.L. 2016, ch. 195, § 1. Most 

notably, under the 2016 amendments, the PDC now has the duty to promulgate rules to ensure 

counties’ public defense “is constitutionally delivered to all indigent persons in this state.” I.C. § 

19-850(1)(a)(vi) (2016). Additionally, the PDC itself can now remedy public defense 

shortcomings in each county if the PDC finds that the county “willfully and materially failed to 

comply with indigent defense standards.” I.C. § 19-862A(11)(b) (2016). If the PDC finds that the 

county’s material failure to comply with indigent defense standards was not willful, it can 

require the county to explain how the failure will be remedied. I.C. § 19-862A(11)(a) (2016). 

Nevertheless, Respondents contend the PDC lacks any power to redress Appellants’ 

injuries. We cannot agree. Ordering Appellants’ requested relief against the PDC would create a 

substantial likelihood of remedying the injuries alleged. That is especially true in light of the 

2016 amendments, as the PDC can promulgate rules to ensure public defense is constitutionally 

adequate and, moreover, can intervene at the county level. Yet, even analyzing redressability 

under the PDC’s former powers shows that redressability is established. The 2016 amendments 
17

do not alter the PDC’s duty to promulgate rules governing (1) training requirements for public 

defenders; and (2) caseload and workload reporting requirements. I.C. § 19-850(1)(a)(i)-(ii). 

Appellants allege their injuries are caused, in part, by the PDC’s failure to promulgate these 

rules. Were the PDC to exercise these powers, it would create a substantial likelihood of 

remedying the injuries alleged. As such, redressability is satisfied as to the PDC.

(b) The “relaxed” standing analysis

In the alternative, Appellants argue they have standing under the “relaxed” standing 

analysis, which they contend does not inquire as to injury in fact, causation, or redressability. In 

Coeur d’Alene Tribe v. Denney, No. 43169, 2015 WL 7421342, at *4 (Idaho Nov. 20, 2015), this 

Court noted that it is willing to “relax ordinary standing requirements in other cases where: (1) 

the matter concerns a significant and distinct constitutional violation, and (2) no party could 

otherwise have standing to bring a claim.” Thus, Appellants argue (1) the “right to counsel at 

issue in this case could not be more fundamental”; and (2) “[i]f [they] cannot bring this lawsuit, 

there will be no one to enforce this essential right against continued inaction and delay by the 

PDC and other government officials.”

We disagree. Though violations of the right to counsel constitute significant and distinct 

constitutional violations, Appellants are not the only ones who could bring this lawsuit. In fact, 

the complaint alleges “the circumstances surrounding the named Plaintiffs’ representations are 

not unique to them. Rather, they exemplify the experiences of thousands of indigent defendants 

across the State . . . .” Because any one of those “thousands of indigent defendants” could bring 

this lawsuit, Appellants do not satisfy the relaxed standing analysis.8

2. Ripeness

In State v. Manley, 142 Idaho 338, 342, 127 P.3d 954, 958 (2005), we summarized 

ripeness as follows:

The ripeness doctrine concerns the timing of a suit and asks whether a 

case is brought too early. The purpose of the ripeness requirement is to prevent 

courts from entangling themselves in purely abstract disagreements. Abbott Labs. 

v. Gardner, 387 U.S. 136, 148 (1967). Under the ripeness test in Idaho, a party 

must show (1) the case presents definite and concrete issues; (2) a real and 

substantial controversy exists (as opposed to hypothetical facts); and (3) there is a 

present need for adjudication. Noh v. Cenarrusa, 137 Idaho 798, 801, 53 P.3d 

 8 Respondents argue the relaxed standing analysis implicates only the injury in fact component of standing, not 

causation or redressability. Our conclusion that Appellants could not satisfy the relaxed standing analysis even if it 

applied obviates the need to address this argument. 
18

1217, 1220 (2002); Miles v. Idaho Power Co., 116 Idaho 635, 642, 778 P.2d 757, 

764 (1989).

“[I]n many cases, ripeness coincides squarely with standing’s injury in fact prong.”

Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 1999). The district 

court’s analysis illustrates that point. The district court concluded Appellants’ claims were not 

ripe largely for the same reasons it found that Appellants did not satisfy the injury in fact 

standard. Specifically, the district court reasoned that ripeness was not satisfied because “none of 

the Plaintiffs’ criminal cases have concluded, no appeals have taken place, and no postconviction relief has been sought.” Similarly, the district court reasoned that an injury in fact was 

not demonstrated because “the Plaintiffs have not yet been convicted of any crime in their 

underlying cases, nor pursued or exhausted any appeal rights, nor any post-conviction relief.”

Because the ripeness analysis differs as to the State and the PDC, we analyze each party 

separately.

(a) State of Idaho

By undertaking case-by-case inquiries into Appellants’ individual cases, the district court 

erroneously concluded the case was not ripe because Appellants “had not even pursued any 

appeal or post-conviction relief in their individual cases.” That analysis was in error.

Appellants suffered ascertainable injuries by being actually and constructively denied 

counsel at critical stages of the prosecution, which they allege are the result of deficiencies in 

Idaho’s public defense system. As a result, Appellants allege as follows:

These constitutional and statutory deficiencies manifest themselves in 

myriad ways, including (1) failure to provide counsel to indigent defendants at 

their initial appearance; (2) extended and unnecessary pretrial detention; (3) 

excessive caseloads that far exceed national standards; (4) lack of sufficient 

investigation; (5) lack of sufficient expert analysis and testimony; (6) lack of 

consistent, effective, and confidential communication between indigent defendants 

and public defenders; (7) continued use of fixed-fee contracts for attorneys 

providing indigent-defense services; (8) lack of public-defender independence; (9) 

lack of sufficient training in the field of criminal defense; (10) lack of informed 

and consistent oversight of the provision of indigent-defense services throughout 

the State; and (11) lack of sufficient supervision and evaluation. 

According to Appellants, “[e]ach of these deficiencies is directly linked to the State’s 

longstanding and ongoing failure to provide the funding, supervision, and training necessary to 

meet its legal obligations in the area of indigent defense.”
19

These allegations establish ripeness by illustrating that “(1) the case presents definite and 

concrete issues; (2) a real and substantial controversy exists (as opposed to hypothetical facts); 

and (3) there is a present need for adjudication.” See Manley, 142 Idaho at 342, 127 P.3d at 958. 

Indeed, we note that Respondents do not contest that ripeness is met as to the State. Therefore, 

we hold that Appellants’ claims against the State are ripe.

(b) The PDC

Additionally, Appellants’ claims against the PDC are ripe. Manley’s first two ripeness 

requirements—definite and concrete issues and a real, substantial controversy—are met for the 

same reason those requirements are met against the State. However, Respondents contend there 

is no present need for adjudication due to the 2016 amendments to Idaho’s Public Defense Act, 

which took effect after this action was filed. See Act of July 1, 2016, S.L. 2016, ch. 195, § 1. The 

record before us contains no evidence concerning the PDC’s conduct in light of the 2016 

amendments. Thus, Respondents argue “[n]othing in this record shows that the PDC will not 

carry out its new responsibilities.”

Although Respondents are correct concerning the PDC’s “new responsibilities,” they 

overlook that the 2016 amendments leave in place the key parts of the PDC’s original authority 

and duties it has had since its inception on March 26, 2014. The 2016 amendments do not alter 

the PDC’s duty to promulgate rules governing (1) training requirements for public defenders; 

and (2) caseload and workload reporting requirements. I.C. § 19-850(1)(a)(i)-(ii). The PDC’s 

alleged failure to exercise these two duties during the initial fourteen months of the PDC’s 

existence is at the heart of many of Appellants’ allegations.9 As a result, there is a present need 

for adjudication. Accordingly, we conclude Appellants’ claims against the PDC are ripe.

3. Separation of powers

The final basis of the district court’s order is the separation of powers doctrine. The 

separation of powers doctrine prohibits “judicial review of the discretionary acts of other 

branches of government.” In re SRBA Case No. 39576, 128 Idaho 246, 261, 912 P.2d 614, 629 

(1995). The separation of powers doctrine is “embraced in art. 2, § 1 of the Idaho Constitution. 

The question is whether this Court, by entertaining review of a particular matter, would be 

substituting its judgment for that of another coordinate branch of government, when the matter 

 9 As noted, the record before us contains no evidence that the PDC has carried out its mandatory rulemaking duties. 

As alleged in Appellants’ complaint, “no such rules have been promulgated to date.” If the PDC were to take action,

Appellants concede their claims against the PDC may fail for either mootness or lack of proof. 
20

was one properly entrusted to that other branch.” Miles v. Idaho Power Co., 116 Idaho 635, 639, 

778 P.2d 757, 761 (1989).

The complaint’s prayer for relief can be simplified into a request for two main remedies: 

(1) a declaratory judgment that Idaho’s public defense system is unconstitutional; and (2) an 

injunction requiring Respondents to fix it. Concluding the requested relief raised separation of 

powers concerns, the district court reasoned as follows:

Plaintiffs do not argue that the statute delegating the duty to provide public 

defense is unconstitutional. They simply argue that the county commissioners in 

some or all of the counties, and the various systems of public defense, have failed 

to protect their constitutional rights to counsel and a fair trial. Instead of filing suit 

against those counties where they believe their constitutional rights have been 

violated, they brought this action against the State, the Governor, and the PDC. 

Plaintiffs also do not argue that the statute establishing the PDC is 

unconstitutional. They argue, instead, that the PDC is an ineffective and 

inadequate response by the legislature to redress the problem of inadequate or 

ineffective assistance of public defense counsel. Instead of seeking to have an act 

declared unconstitutional, they ask this Court to declare the inaction to be 

unconstitutional. Plaintiffs ask this Court to declare the whole system (or lack of 

system) to be unconstitutional and to then establish standards or guidelines, based 

on previous holdings of other courts, that the Governor, the PDC, the legislature, 

and all counties (whom they have not sued at this time), must follow. Plaintiffs 

ask this Court to mandate that the Governor and the PDC (and the legislature and 

counties) must enact as legislation, ordinances, or rules to meet those standards, 

and to provide adequate funding therefore. This Court does not have the power or 

jurisdiction to do so under the established principles of separation of powers 

imbedded in the federal and state constitutions.

We disagree. Our precedent instructs that the separation of powers doctrine is triggered 

when (1) a “textually demonstrable constitutional commitment” assigns the matter to a particular 

branch of government; or (2) the matter implicates another branch’s discretionary authority. See 

Miles, 116 Idaho at 639–40, 778 P.2d at 761–62. For instance, in Idaho Schools for Equal 

Educational Opportunity v. State (ISEEO IV), 140 Idaho 586, 594–97, 97 P.3d 453, 461–64 

(2004), we held that a statute authorizing the judiciary to impose a levy violated the separation of 

powers doctrine because the Idaho Constitution commits the power to tax to the Legislature. 

Similarly, in Diefendorf v. Gallet, 51 Idaho 619, 638, 10 P.2d 307, 314–15 (1932), we held that 

the governor’s discretion to define the “extraordinary occasions” under which Article 4, Section 

9 of the Idaho Constitution permits special legislative sessions to be convened was a 

discretionary act exempt from judicial review. 
21

Here, Appellants’ requested relief does not implicate the separation of powers doctrine. 

The right to counsel, which Appellants seek to vindicate, is not entrusted to a particular branch of 

government. Nor does a particular branch of government merely have discretion to enforce the 

right to counsel, a fundamental right. See Gideon, 372 U.S. at 342–43. Respondents concede they 

lack discretion as to whether the right to counsel must be honored, but contend they have 

discretion as to how exactly that will be done. That argument misses the mark. Simply that 

Respondents will exercise some discretion when deciding which course of action to take so as to 

fulfill their affirmative duties does not implicate the separation of powers doctrine. 

This conclusion is not altered even though Appellants ask the judiciary to retain 

jurisdiction to monitor Respondents’ efforts to bring the public defense system into constitutional 

compliance. In Idaho Schools for Equal Education Opportunity v. State (ISEEO V), 142 Idaho 

450, 459, 129 P.3d 1199, 1208 (2005), we affirmed the declaratory judgment that Idaho’s public 

school funding system was “simply not sufficient to carry out the Legislature’s duty under the 

constitution” to “establish and maintain a general, uniform and thorough system of public, free 

common schools.” Moreover, ISEEO V “retain[ed] jurisdiction to consider future legislative 

efforts to comply with the constitutional mandate to provide a safe environment conducive to 

learning so that we may exercise our constitutional role in interpreting the constitution and 

assuring that its provisions are met.” Id. at 460, 129 P.3d at 1209. Similarly, in Hellar v. 

Cenarrusa, 106 Idaho 571, 576, 682 P.2d 524, 529 (1984), we affirmed the declaratory judgment 

invalidating the Legislature’s reapportionment scheme, upheld the reapportionment plan that the 

district court itself had entered, and retained jurisdiction. Concurring in part and dissenting in 

part, Justice Shepard noted that, although the reapportionment “power does not belong to nor 

should it be exercised by, the judicial department of government, albeit if there be a legislative 

abdication of its power and duty, the courts will be required to act in the legislature’s stead.” Id.

at 585, 682 P.2d at 538 (Shepard, J., concurring part and dissenting in part). Other jurisdictions 

have fashioned similar relief. E.g., Washakie Cnty. Sch. Dist. No. One v. Herschler, 606 P.2d 

310, 337 (Wyo. 1980) (remanding public school financing case to district court with instructions 

to “retain jurisdiction until a constitutional body of legislation is enacted and in effect, taking 

such action as may be necessary to assure conformity”).

Respondents consistently assume that granting relief would require legislative action. 

This, too, misses the mark. Appellants do not challenge the statutes creating the PDC or 
22

delegating public defense to the counties. Instead, Appellants challenge Respondents’ inaction, 

and part of that inaction includes failures to comply with statutorily mandated duties. Thus, 

Appellants’ requested relief does not ask the judiciary to order the Legislature to do anything.

The New York Court of Appeals addressed a similar argument in Hurrell-Harring v. New York, 

930 N.E.2d 217, 227 (N.Y. Ct. App. 2010), when holding that the class of plaintiffs could sue for 

alleged public defense inadequacies. As Hurrell-Harring explained:

It is, of course, possible that a remedy in this action would necessitate the 

appropriation of funds and perhaps, particularly in a time of scarcity, some 

reordering of legislative priorities. But this does not amount to an argument upon 

which a court might be relieved of its essential obligation to provide a remedy for 

violation of a fundamental constitutional right.

Id. The same logic applies here. Merely that it is possible that Idaho’s three branches of 

government may collaborate when deciding how to ensure our public defense system passes 

constitutional muster does not raise separation of powers concerns. Thus, Appellants’ claims do 

not implicate the separation of powers doctrine.

C. Are Appellants entitled to attorney fees on appeal?

Appellants seek attorney fees on appeal under both Idaho’s private attorney general 

doctrine and 42 U.S.C. § 1988. As to the private attorney general doctrine, this Court has 

explained that: 

[A] three-factor test [is] to be considered in awarding attorney’s fees under the 

private attorney general theory: “(1) the strength or societal importance of the 

public policy vindicated by the litigation, (2) the necessity for private enforcement 

and the magnitude of the resultant burden on the plaintiff, (3) the number of 

people standing to benefit from the decision.” These factors indicate that there 

must be some resolution of the substantive issues before a decision on attorney 

fees can be reached.

Idaho Sch. for Equal Educ. Opportunity v. Idaho State Bd. of Educ. (ISEEO II), 128 Idaho 276, 

285, 912 P.2d 644, 653 (1996) (emphasis added). 

As to 42 U.S.C. § 1988, “[a] plaintiff ‘prevails’ for purposes of § 1988 ‘when actual relief 

on the merits of his claim materially alters the legal relationship between the parties by 

modifying the defendant’s behavior in a way that directly benefits the plaintiff.’ ” Higher Taste, 

Inc. v. City of Tacoma, 717 F.3d 712, 715 (9th Cir. 2013) (quoting Farrar v. Hobby, 506 U.S. 

103, 111–12 (1992)).

Although Appellants prevail in part on appeal, they are not entitled to fees. The merits of 

Appellants’ claims still need to be addressed. 
23

V. CONCLUSION

We reverse the dismissal of Appellants’ complaint as to the State of Idaho and the PDC, 

but affirm dismissal as to Governor Otter. We remand this case for further proceedings 

consistent with this opinion. We do not award attorney fees or costs on appeal.

Justices EISMANN, W. JONES, HORTON, and BRODY, CONCUR.