               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43077

STATE OF IDAHO,                                ) 2016 Opinion No. 12
                                               )
       Plaintiff-Respondent,                   ) Filed: February 23, 2016
                                               )
v.                                             ) Stephen W. Kenyon, Clerk
                                               )
JAMES W. CLARK,                                )
                                               )
       Defendant-Appellant.                    )
                                               )

       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,


                                                1
       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.



1
       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.
                                                  2
                                                  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


                                                   3
“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

                                                4
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.

                                                  5
       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 136.2 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.
                                                 6
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 135-36.3
       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.
                                                 7
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.




4
        It is not contended that Clark had any active case then pending before the Commission
that the exclusion order affected.
                                                8
