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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 43077

STATE OF IDAHO,

Plaintiff-Respondent,

v.

JAMES W. CLARK,

Defendant-Appellant.

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2016 Opinion No. 12

Filed: February 23, 2016

Stephen W. Kenyon, Clerk

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

County. Hon. Gerald F. Schroeder, District Judge. Hon. Kevin Swain, Magistrate. 

Order of the district court, on intermediate appeal from the magistrate division, 

affirming the magistrate court’s judgment of conviction for misdemeanor trespass,

reversed.

Alan Trimming, Ada County Public Defender; Adam C. Kimball, Deputy Ada 

County Public Defender, Boise, for appellant. Adam C. Kimball argued.

Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney 

General, Boise, for respondent. Ted S. Tollefson argued.

________________________________________________

LANSING, Judge Pro Tem

James W. Clark appeals from the district court’s decision affirming his judgment of 

conviction in magistrate court for trespassing in the offices of the Idaho Industrial Commission. 

Clark asserts, among other things, that the judgment must be reversed because it is predicated 

upon state actions that deprived him of constitutional rights without due process. We reverse.

I.

BACKGROUND

Clark was injured at work and filed a claim with the Idaho Industrial Commission in 

2008. On August 28, 2012, the director of the Commission sent Clark a letter stating:

In light of the repeated disruptive arguments and confrontations you have 

exhibited toward employees of the Idaho Industrial Commission while on 

Commission property, you are hereby notified that you are, effective immediately, 
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barred from entering into or upon property occupied by the Idaho Industrial 

Commission.

Unless this bar is lifted earlier, your entry upon Commission property or 

into facilities occupied by the Commission at any time during the next twelve (12) 

months will constitute a trespass under the provisions of Idaho Code § 18-7008, 

paragraph 8. The penalty for misdemeanor trespass can be up to six (6) months in 

jail, a $1,000 fine, or both.

On August 27, 2013, the director sent Clark an identical letter excluding him from Commission 

property for another year. On April 4, 2014, Clark entered the Commission’s office. The 

customer service representative at the front desk directed Clark to leave and threatened to call the 

police if he did not. Clark refused to leave, and the representative called the police. 

Clark was charged with misdemeanor trespass, Idaho Code § 18-7008(8), for violating 

the most recent exclusion order.

1 After the close of the State’s evidence, he moved for a 

judgment of acquittal under Idaho Criminal Rule 29. He asserted there was insufficient evidence 

that the director was authorized under I.C. § 18-7008(8) to issue the orders excluding him from 

the Industrial Commission premises because the exclusion orders infringed on his fundamental 

right to petition the government for redress of grievances without affording him due process.

The magistrate found there was sufficient evidence that the director was authorized and denied 

the motion. A jury found Clark guilty, and the magistrate entered judgment. Clark appealed to 

the district court, which affirmed the judgment of conviction.

On further appeal, Clark asserts the district court’s affirmance was erroneous because the 

exclusion order on which his prosecution was predicated infringed his fundamental right to 

petition the government for redress of grievances without affording him any due process by 

which to challenge the order. He further asserts that because of this constitutional flaw in the 

order, the Commission director was not authorized to issue the order under I.C. § 18-7008.

Finally, he asserts there was insufficient evidence to support the verdict because the customer 

service representative’s testimony conflicted with the responding officer’s testimony.

 

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Idaho Code Section 18-7008(8) defines trespasser, in part, as:

Every person, except under landlord-tenant relationship, who, being first 

notified in writing, or verbally by the owner or authorized agent of the owner of 

real property, to immediately depart from the same and who refuses to so depart, 

or who, without permission or invitation, returns and enters said property within a 

year, after being so notified.
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II.

ANALYSIS

When reviewing a decision of a district court sitting in its appellate capacity, we do not 

review the decision of the magistrate court. Bailey v. Bailey, 153 Idaho 526, 529, 284 P.3d 970, 

973 (2012). Rather, we are procedurally bound to affirm or reverse the decisions of the district 

court. State v. Korn, 148 Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009). Thus, we examine 

whether the district court correctly affirmed the magistrate court’s denial of Clark’s Rule 29 motion.

When reviewing a trial court’s ruling on a motion for a judgment of acquittal, an 

appellate court must determine whether the evidence was sufficient to sustain a conviction of the 

crime charged. State v. Fields, 127 Idaho 904, 912-13, 908 P.2d 1211, 1219-20 (1995). 

Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt will 

not be overturned on appeal where there is substantial evidence upon which a reasonable trier of 

fact could have found that the prosecution sustained its burden of proving the essential elements 

of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 

1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 

1991). We will not substitute our view for that of the trier of fact as to the credibility of the 

witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn 

from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683, 

684, 701 P.2d 303, 304 (Ct. App. 1985). In addition, we consider the evidence in the light most 

favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson, 121 

Idaho at 104, 822 P.2d at 1001. 

Clark first asserts the district court erred in denying his I.C.R. 29 motion because the 

trespass charge was predicated upon exclusion orders that infringed his fundamental right to 

petition the government for redress of grievances without affording him any process by which he 

could challenge the orders. Where a defendant claims that his or her right to due process was 

violated, we defer to the trial court’s findings of fact, if supported by substantial evidence, but

we freely review the application of constitutional principles to those facts found. State v. Smith, 

135 Idaho 712, 720, 23 P.3d 786, 794 (Ct. App. 2001). 

The Due Process Clauses of the United States Constitution and Idaho Constitution forbid

the State from depriving any person of life, liberty, or property without due process of law. U.S. 

CONST. amend. XIV, § 1; IDAHO CONST. art. I, § 13. Due process requires the State to provide 
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“notice and opportunity for hearing appropriate to the nature of the case” before the government 

takes a person’s property or liberty interest. Armstrong v. Manzo, 380 U.S. 545, 550 (1965)

(quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). Thus, “[a]

fundamental requirement of due process is ‘the opportunity to be heard’ . . . at a meaningful time 

and in a meaningful manner.” Id. at 552 (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)); 

see also State v. Bettwieser, 143 Idaho 582, 588, 149 P.3d 857, 863 (Ct. App. 2006).

To determine whether a state action violated an individual’s procedural due process 

rights, courts examine: (1) whether the state action deprived the individual of a liberty or 

property interest; and (2) if so, what process was due in view of the nature of the deprivation.

Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982); Bradbury v. Idaho Judicial 

Council, 136 Idaho 63, 72-73, 28 P.3d 1006, 1015-16 (2001); Pentico v. State, 159 Idaho 350, 

355, 360 P.3d 359, 364 (Ct. App. 2015).

Some rights protected by the First Amendment, including the right to petition the 

government for a redress of grievances, qualify as protected liberty interests. In United Mine 

Workers of Am., Dist. 12 v. Illinois State Bar Ass’n, 389 U.S. 217 (1967), the United States 

Supreme Court stated: 

We start with the premise that the rights to assemble peaceably and to 

petition for a redress [of] grievances are among the most precious of the liberties 

safeguarded by the Bill of Rights. These rights, moreover, are intimately 

connected both in origin and in purpose, with the other First Amendment rights of 

free speech and free press. “All these, though not identical, are inseparable.” The 

First Amendment would, however, be a hollow promise if it left government free 

to destroy or erode its guarantees by indirect restraints so long as no law is passed 

that prohibits free speech, press, petition, or assembly as such. We have therefore 

repeatedly held that laws which actually affect the exercise of these vital rights 

cannot be sustained merely because they were enacted for the purpose of dealing 

with some evil within the State’s legislative competence, or even because the laws 

do in fact provide a helpful means of dealing with such an evil. 

Id. at 222 (citations omitted). 

Here, the exclusion orders precluded Clark from entering the Commission’s offices for 

two years, preventing him from making an in-person petition at the Commission’s offices. 

Several courts have found infringement of a protected liberty interest where a governmental

entity’s order excluded an individual from public property that was otherwise open to the public 

and thereby interfered with the individual’s exercise of a fundamental right. See Johnson v. 

Perry, ___ F. Supp. 3d ___ (D. Conn. Oct. 21, 2015) (appeal pending) (public school’s order 
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excluding parent from school events interfered with parent’s exercise of right to make decisions 

about the care, custody, and control of his child and did not provide him with any means to 

appeal the order); Cyr v. Addison Rutland Supervisory Union, 955 F. Supp. 2d 290, 297 (D. Vt. 

2013) (public school’s order that excluded parent from school board meetings interfered with

parent’s exercise of speech rights and did not provide parent with any means to challenge the 

order); Dunkel v. Elkins, 325 F. Supp. 1235, 1246-47 (D. Md. 1971) (public university’s order

that excluded visitor from campus interfered with visitor’s exercise of speech rights and provided 

no means to appeal); Watson v. Bd. of Regents of Univ. of Colorado, 512 P.2d 1162, 1165 (Colo. 

1973) (public university’s order that banned nonstudent from campus interfered with the 

individual’s exercise of First Amendment rights and provided no method for appeal).

Consistent with that analysis, courts of at least two jurisdictions have reversed criminal 

convictions for trespass where a public entity’s order excluding the defendant from public 

property interfered with the defendant’s exercise of a constitutional or statutory right and did not 

allow for an appeal of the order. In State v. Koenig, 242 P.3d 649 (Or. Ct. App. 2010), the 

defendant was arrested upon entering the county public services building after the sheriff’s office

had issued an order excluding him from the building. He was charged under a trespass statute 

that barred people from entering “premises that are open to the public after being lawfully 

directed not to enter the premises.” Id. at 655 (quoting O.R.S. § 164.205(3)(c)). The court held 

that the defendant had “a protected liberty interest in petitioning his government for redress of 

grievances and that that interest was constrained by the notice of exclusion.” Id. at 656. The

exclusion order was held to be unlawful because the defendant was not provided with any 

process by which to challenge it. Id. at 655. That is, there were no procedures to “safeguard his 

liberty interest against the risk of erroneous deprivation.” Id. at 657. Because there was 

insufficient evidence showing that there existed a lawful order directing the defendant not to 

enter the public services building, the appellate court held that the trial court erred in denying the 

defendant’s motion for a judgment of acquittal. Id.

Likewise, in State v. Green, 239 P.3d 1130 (Wash. Ct. App. 2010) the Washington court 

reversed the trespass conviction of a parent who had violated a public school’s order excluding 

the parent from her child’s school. The court found the conviction unlawful because the 

exclusion order infringed the parent’s statutory right to observe her child’s school activities and 

did not provide any means for an appeal from the order. Id. at 1137.
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This case is strikingly similar to Koenig. Like the defendant there, Clark possessed a 

liberty interest in petitioning his government for a redress of grievances that was infringed by 

excluding him from the premises of a public agency, and he neither received a pre-deprivation

hearing nor was notified of a procedure for appealing the exclusion order. 

The State contends that Koenig is distinguishable because, unlike the Oregon statute,

I.C. § 18-7008(8) does not specify as an element of the offense that the exclusion order must be 

“lawful.” We disagree. It would hardly comport with constitutional standards to allow an 

individual to be criminally convicted for violating an unconstitutional order. A person may not

be convicted of trespass for failing to comply with an exclusion order from a public agency that 

violates that person’s right to due process. Cf. State v. Bishop, 146 Idaho 804, 817, 203 P.3d 

1203, 1216 (2009) (an individual who peacefully obstructs or refuses to obey an officer’s 

unlawful directive does not thereby violate statute proscribing resisting and obstructing a public 

officer); State v. Gamma, 143 Idaho 751, 754, 152 P.3d 622, 625 (Ct. App. 2006) (where an 

individual refuses to obey order or obstructs act of public officer that is contrary to the law, that 

individual does not violate statute proscribing resisting and obstructing a public officer); State v. 

Wilkerson, 114 Idaho 174, 178, 755 P.2d 471, 475 (Ct. App. 1988) (a person cannot be convicted 

of a crime for failing to obey police officer’s command if that command itself violates the 

Constitution).

The State also argues that the Commission could exclude Clark from state property 

without an opportunity to be heard because in State v. Korsen, 138 Idaho 706, 69 P.3d 126 

(2003) (abrogated on other grounds by Evans v. Michigan, ___ U.S. ___, 133 S. Ct. 1069 

(2013)), the Idaho Supreme Court held that I.C. § 18-7008 does not require property owners to 

identify a reason for issuing an exclusion order. According to the State, if a property owner, 

including a government agency, can issue an exclusion order without an identified reason, the 

recipient of the order can have no basis to appeal, and an opportunity to be heard is unnecessary. 

The State’s argument is without merit. The referenced statements in Korsen addressed the 

statutory elements of trespass under I.C. § 18-7008, not due process limitations on state action. 

Id. at 716, 69 P.3d at 136.

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 Because the right to due process is constitutional, state statutes 

 

2 Because Korsen was convicted of trespass for refusing to leave a state office when his 

conduct became disruptive--not for violating a prospectively operating exclusion order--the due 

process issue presented here could not even arise in the Korsen case.
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cannot define its parameters. See Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976); Matthews 

v. Jones, 147 Idaho 224, 231, 207 P.3d 200, 207 (Ct. App. 2009). Indeed, the Korsen court 

acknowledged that if “a criminal trespass prosecution is filed pursuant to I.C. § 18-7008(8) 

against a person on public property who is exercising his or her free speech rights, the statute 

could be attacked as applied to that constitutionally-protected conduct.” Korsen, 138 Idaho at 

715-16, 69 P.3d 135-36.

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To determine what process is due in light of the nature of a deprivation of liberty or 

property, courts use the test enunciated in Mathews, which requires courts to balance 

[f]irst, the private interest that will be affected by the official action; second, the 

risk of erroneous deprivation of such interest through the procedures used, and the 

probable value, if any, of additional or substitute procedural safeguards; and

finally, the Government’s interest, including the function involved and the fiscal 

and administrative burdens that the additional or substitute procedural 

requirement would entail. 

Mathews, 424 U.S. at 335. 

Here, Clark’s fundamental right to petition for redress of grievances was infringed, and 

the Commission did not provide any process by which Clark could challenge the exclusion 

orders. Further, the provision of some means by which the orders could be challenged by Clark 

would not entail financial or administrative burdens of any significance, for the process need not 

be an in-person evidentiary hearing. The case authorities cited above suggest that an opportunity 

to challenge an exclusion order in writing before or promptly after the effective date of the order 

may suffice to safeguard against the erroneous deprivation of individuals’ liberty interests, which 

would not impose undue fiscal or administrative burdens on public agencies. See Dunkel, 325 

F. Supp. at 1246; Watson, 512 P.2d at 1165; Green, 239 P.3d at 1137-38. Accordingly, we 

conclude that the Commission’s exclusion orders violated Clark’s right to due process because 

they infringed a liberty interest without affording any procedure to safeguard against the risk of 

erroneous deprivation. 

We recognize that the liberty restraint claimed by Clark--preventing him from physically 

entering the Commission’s premises to personally petition for redress of grievances--was

minimal. He retained the ability to petition the Commission by telephone, email or letter, or 

 

3 Our decision here is also not dictated by Pentico v. State, 159 Idaho 350, 360 P.3d 359

(Ct. App. 2015), as the disposition of that case turned upon the petitioner’s burden of proof in a 

post-conviction action.
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even to speak personally with a member of the Commission or one of its employees outside of 

the office.4 Nevertheless, to hold that Clark was entitled to no due process would give public 

agencies carte blanche to arbitrarily and without justification (and even with malicious or 

retaliatory purposes) infringe a fundamental right by excluding individuals from premises that 

are otherwise open to the general public. And through successive orders, this exclusion could be 

made lifelong. Consequently, we hold that when an order singles out an individual for exclusion 

from premises of a public agency that are otherwise open to the public, and thereby infringes on 

the individual’s fundamental rights, the agency must afford the individual a process for 

challenging the order and inform the individual of this process.

The undisputed evidence here shows that the Commission’s exclusion order infringed 

Clark’s right to petition for redress of grievances without due process. Therefore, there was 

insufficient evidence to sustain a conviction of misdemeanor trespass because the evidence 

shows that the charge was predicated upon an unconstitutional order. It follows that the district 

court erred in affirming the magistrate court’s judgment of conviction.

We need not address Clark’s other claims because his procedural due process claim is 

dispositive. The district court’s decision affirming Clark’s judgment of conviction for 

misdemeanor trespass is reversed.

Judge GUTIERREZ and Judge HUSKEY CONCUR.

 

 

 

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It is not contended that Clark had any active case then pending before the Commission 

that the exclusion order affected.