IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket Nos. 50333 & 50715
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) Boise, January 2025 Term
)
v. ) Opinion Filed: April 1, 2025
)
AMMON EDWARD BUNDY, ) Melanie Gagnepain, Clerk
)
Defendant-Appellant. )
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County.
Gerald F. Schroeder, Senior District Judge, and David D. Manweiler, Magistrate Judge,
and Kira L. Dale, Magistrate Judge.
The decisions of the district court are affirmed.
Idaho Injury Law Group, PLLC, Boise, for Appellant, Ammon Edward Bundy. Seth H.
Diviney argued.
Raúl R. Labrador, Idaho Attorney General, Boise, for Respondent State of Idaho.
Kenneth K. Jorgensen argued.
_____________________
MEYER, Justice.
Ammon Edward Bundy appeals from his convictions for misdemeanor criminal trespass
and misdemeanor resisting and obstructing in two cases that have been consolidated on appeal.
For the reasons discussed below, we affirm the district court’s decisions upholding Bundy’s
convictions in both cases.
I. FACTUAL AND PROCEDURAL BACKGROUND
Bundy was convicted of one count of misdemeanor criminal trespass and one count of
misdemeanor resisting and obstructing in Supreme Court Docket Number 50333. He was also
convicted of one count of misdemeanor criminal trespass and one count of misdemeanor delaying
an officer 1 in Docket Number 50715. Bundy challenged his convictions in both cases on
0F
1
Idaho Code section 18-705 prohibits resisting, obstructing, and delaying an officer in the discharge of any duty of
his office. Although Bundy was charged and convicted of “delaying an officer” under Idaho Code section 18-705, for
ease of reference for the remainder of this opinion, we will refer to this crime as resisting and obstructing.
1
intermediate appeal to the district court. The district court affirmed his convictions. Bundy then
timely appealed to this Court and both cases were consolidated on appeal.
A. On August 25, 2020, Idaho State Troopers removed Bundy from the Lincoln
Auditorium and charged him with trespass and resisting and obstructing in Docket
No. 50333.
The facts in Docket No. 50333 occurred on August 25, 2020. Bundy was observing a
committee meeting in the Lincoln Auditorium at the Idaho State Capitol building, when a
disturbance created by other audience members resulted in the meeting being relocated to another
room in the Capitol building. After that meeting ended, then-Speaker of the House, Scott Bedke,
ordered the Lincoln Auditorium to be cleared and closed for the day. The Idaho State Troopers
stationed at the Capitol building entered the auditorium, informed the individuals still inside that
it was closed for the day, and warned them that they could be charged with criminal trespass if
they did not leave the auditorium. Although others left the auditorium, Bundy remained seated.
Troopers approached Bundy, seated at the press table, and asked him to leave. Bundy did not
respond and remained seated. When the troopers attempted to remove Bundy, he “went limp.”
When troopers stood Bundy up so they could handcuff him, he fell to the floor and did not respond
to the troopers’ commands. As Bundy refused to leave under his own power, the troopers wheeled
him out of the Capitol building in an office chair. He was placed under arrest and charged with
one count of misdemeanor criminal trespass in violation of Idaho Code section 18-7008(2)(a) and
(3)(b)(i), and misdemeanor resisting and obstructing an officer under Idaho Code section 18-705.
The criminal complaint charged Bundy with misdemeanor criminal trespass, alleging that
Bundy:
[O]n or about the 25th day of August 2020, in the County of Ada, State of Idaho,
did willfully remain on the real property of another without permission, to wit: 700
W[est] Jefferson Street, Boise Idaho, knowing or with reason to know that his
presence was not permitted in that he failed to depart immediately from the real
property after being notified by the owner’s agent to do so.
The complaint also charged Bundy with misdemeanor resisting and obstructing, alleging
that he:
[O]n or about the 25th day of August 2020, in the County of Ada, State of Idaho,
did willfully resist, delay, and/or obstruct a public officer(s) . . . by refusing to
follow Idaho State Police lawful commands during his arrest and removal from the
State Capitol property, requiring officers to carry him and place him in and out of
the patrol car and/or by refusing to follow Ada County Sheriff Officer lawful
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commands during the booking and transport to cell process requiring officers to
carry him and/or do everything for him required by the booking process.
In the months that followed, Bundy filed multiple motions to dismiss, which were denied
by the magistrate court. Bundy’s case proceeded to a four-day jury trial. The jury heard testimony
from numerous witnesses, including Sergeant Blake Higley and Speaker Scott Bedke; Bundy also
testified in his own defense. The jury convicted Bundy of one count of misdemeanor criminal
trespass and one count of misdemeanor resisting and obstructing. Following the trial, Bundy filed
a motion for judgment of acquittal, where he raised as-applied constitutional challenges to Idaho’s
criminal trespass statute, argued that the statute did not apply to public property, asserted that his
arrest was unlawful, and maintained that he was passively resisting arrest. The magistrate court
denied Bundy’s motion.
Bundy was sentenced to pay a fine and court costs totaling $657.50 and sentenced to credit
for time served of three days on the criminal trespass count. He was also ordered to pay a fine and
court costs totaling $407.50, given credit for 3 days in jail, and directed to complete 40 hours of
public service within 180 days in lieu of 2 days in jail on the resisting and obstructing count.
Bundy’s sentences were ordered to run concurrently.
Bundy appealed his convictions to the district court and raised many of the same arguments
he made in his motion for acquittal. On intermediate appeal, the district court determined that
Idaho’s criminal trespass statute was not ambiguous and that the statute was not unconstitutionally
vague or overbroad as applied to Bundy’s conduct. The district court found that the criminal
trespass statute did apply to public property based on the plain language of the statute. The district
court noted that the trespass statute contains the terms “private,” “public,” and “real property,” and
when the statute is “read as a whole, [it] does not exclude public property.” Bundy argued that
Idaho Code section 67-1602(3) and House Rule 63 gave the Speaker of the House unbridled
discretion to close the Capitol building, creating a situation where the Speaker can revoke or
exclude a visitor’s access to the building at will. The district court rejected the unbridled discretion
argument, noting that the statute and House Rule 63 give the Speaker of the House the ability to
preserve order and decorum, subject to an appeal to the House, and they grant him the ability to
supervise the House floor and committee rooms, including the Lincoln Auditorium, among other
parts of the building. The district court held that this is not “unbridled discretion.” Bundy made a
similar argument that Idaho Code sections 67-1602 and 67-1603 gave the Director of the
Department of Administration “unbridled discretion” to revoke a visitor’s permission to visit the
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Capitol building. The district court rejected Bundy’s “unbridled discretion” argument with respect
to the Director of the Department of Administration, holding that the scope of Director’s authority
is limited by statute. The district court noted that the statutes grant the Director the ability to
“determine the use of the public spaces in and around the [C]apitol.”
Bundy also made arguments related to the separation of powers doctrine, which prohibits
the transfer or delegation of power belonging to one branch of government (legislative, executive,
and judicial) to another, except as permitted by the Idaho Constitution. Bundy maintained that
Idaho Code sections 67-1602 and 67-1603 violated the separation of powers doctrine because they
delegate lawmaking authority to the Director of the Department of Administration. He also argued
that the trespass statute allows a government employee to revoke permission to enter or remain on
public property in violation of the separation of powers doctrine. The district court rejected
Bundy’s separation of powers arguments, holding that the Director of the Department of
Administration’s authority is limited by statute and that Idaho Code sections 67-1602 and 67-1603
do not delegate lawmaking authority to the Director. The district court rejected Bundy’s argument
with respect to government employees, noting that they are limited by the exception to the trespass
statute found in Idaho Code section 18-7008(6)(a)(i). The district court determined that Bundy’s
argument that he was only passively resisting arrest was unavailing because Bundy’s arrest was
lawful. The district court affirmed Bundy’s convictions, and he timely appealed to this Court.
On appeal, Bundy raises the same as-applied constitutional challenges to Idaho’s criminal
trespass statute, arguing that it is both unconstitutionally vague and overbroad as applied to his
conduct. He also contends that the criminal trespass statute does not apply to public property.
Bundy again challenges his conviction for resisting and obstructing on the basis that his arrest was
unlawful and that he was passively resisting. The State counters that the district court did not err
when it affirmed Bundy’s convictions.
B. On August 26, 2020, the Director of the Department of Administration issued a
trespass notice that prohibited Bundy from entering the public areas of the Capitol
building and exterior for one year.
The day after his arrest, Bundy returned to the Idaho State Capitol building. Idaho State
Troopers removed him from the building. Then-Director of the Department of Administration,
Keith Reynolds, attempted to give Bundy a copy of a trespass notice before Bundy was removed
from the building. Because Bundy refused to accept the notice, he was later mailed a copy. The
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notice informed Bundy that he was prohibited from being in the public areas of the Capitol building
and grounds for one year, beginning on August 26, 2020. It provided:
The Director of the Idaho Department of Administration, [sic] has the
control, under Idaho Code sections 67-1602 to 1604, and 67-5709, over the
properties identified below. I am writing to provide you with notice that . . . you are
prohibited from appearing or otherwise being present at:
• Public areas of the Idaho State Capitol Building 700 West Jefferson
Street, Boise, Idaho 83702 and State Capitol Exterior.
If you enter upon these properties you will be referred to law enforcement for
charges of criminal trespass pursuant to Idaho Code [section] 18-7008. Should you
have any legitimate business to conduct with agencies of the State of Idaho that
requires you to be present on these state properties, you must make arrangements
by phone with the State Security Manager at (208) 334-2222.
The notice explained that Bundy was prohibited from being in the public areas of the Capitol
building because “[o]n August 25, 2020, you refused a lawful order of the legislature to vacate the
premises.” It also noted Bundy’s “disruptive behavior impeded the execution of Government
business and procedures. The result was a trespass order by the legislature that led to your arrest.”
The notice explained that Bundy “present[ed] a threat to disrupt the legitimate business conducted
[at the Capitol building]” based on his “refusal to comply with lawful orders of government
officials and peace officers[.]” Bundy was arrested for misdemeanor criminal trespass and
misdemeanor resisting and obstructing in connection with his presence at the Capitol building on
August 26, 2020, but those charges were later dropped.
C. On April 8, 2021, Idaho State Troopers removed Bundy from the Capitol building
twice and charged him with trespass and resisting and obstructing in Docket No.
50715.
The facts in Docket No. 50715 occurred on April 8, 2021. Bundy returned to the Capitol
building that day after meeting with his attorney and learning that the charges from August 26,
2020, had been dismissed. Bundy entered the Capitol building in the morning and stopped to use
the men’s restroom. Idaho State Troopers learned that Bundy had entered the building and
approached him as he exited the men’s restroom. Bundy refused to leave and went limp, as he had
done on August 25, 2020. Multiple troopers picked Bundy up, placed him in a mesh cart, wheeled
him out of the building, and carried him to a patrol car. Bundy was informed that he was arrested
based on the trespass notice. Bundy went through the booking process and was released that same
day. Later that afternoon, Bundy returned to the Capitol building. He entered the building and sat
5
on a bench outside the Senate chambers. When troopers learned he had re-entered the building,
they again removed him. Bundy was later charged with two counts of misdemeanor criminal
trespass in violation of Idaho Code section 18-7008(2)(a) and (3)(a)(ii), and one count of
misdemeanor delaying an officer in violation of Idaho Code section 18-705.
The second amended criminal complaint in Docket Number 50715 charged Bundy with
two counts of misdemeanor criminal trespass, each alleging that Bundy:
[O]n or about the 8th day of April 2021, in the County of Ada, State of Idaho, did
willfully enter the property of another located at 700 West Jefferson Street, Boise
Idaho without permission knowing or having reason to know that his presence is
not permitted because [Bundy] returned to and entered the property without
permission within one year of having been notified by the owner’s agent to remain
off the property, while having plead [sic] guilty to or having been found guilty of a
violation of Idaho Code [section] 18-7008 within the previous five years.
The third charge of the second amended criminal complaint charged Bundy with resisting and
obstructing, alleging that Bundy:
[O]n or about the 8th day of April 2021, in County of Ada, State of Idaho, did
willfully delay a public officer, to-wit: Idaho State Troopers, in the attempt to
discharge a duty of their office, by refusing to walk and/or support his own weight
after being placed under arrest.
While the underlying case in Docket No. 50715 was pending, Bundy was convicted of
misdemeanor trespass and resisting and obstructing in Docket No. 50333. In Docket No. 50715,
Bundy filed multiple motions to dismiss before trial. Bundy also filed a motion to stay based on
the petition for judicial review he filed in case number CV01-21-19130 to challenge the trespass
notice, which the magistrate court denied. Bundy’s motions made constitutional challenges to the
trespass statute and the trespass notice, which were denied by the magistrate court. He also filed a
motion for reconsideration, which was denied. Bundy argued that the criminal trespass notice was
unconstitutionally vague and overbroad as applied to his conduct, that the use of the word
“remains” in the criminal trespass statute created ambiguity, that the criminal trespass statute did
not apply to public property, and that he was unlawfully arrested. The magistrate court held an
evidentiary hearing on Bundy’s motions. At the hearing, Bundy testified that he received the
trespass notice and read it before he entered the Capitol building on April 8, 2021. Bundy also
testified that he believed the notice was invalid and that it was no longer in place because the
charges from August 26, 2020, were dismissed. Bundy testified that he did not contact the state
6
security manager before entering the building on April 8, 2021. The magistrate court denied
Bundy’s motions following the hearing.
Bundy’s case proceeded to a jury trial. The Director of the Department of Administration,
Idaho State Police Sergeant Zach Nichols, and others testified regarding Bundy’s arrests inside the
Capitol building. During his testimony, the Director described the trespass notice. He confirmed
that Bundy had not contacted him or the security manager before entering the Capitol building.
Sergeant Nichols testified regarding Bundy’s arrest outside of the men’s restroom, and the need
for multiple troopers to remove Bundy from the building in a mesh cart. The Director also
conceded that he did not have control over the area around the Senate chambers. Trooper Matthew
Vallard testified regarding Bundy’s arrest outside the Senate gallery hallway, noting that Bundy
was seated on a bench near the Senate chambers. He testified that Sergeant Blake Higley
approached Bundy and informed Bundy that he was trespassing. Sergeant Higley and another
trooper placed Bundy in handcuffs and walked with Bundy toward the bottom of the stairs, when
Bundy stopped and sat down. The troopers used the mesh cart to wheel Bundy out of the Capitol
building a second time. The jury was unable to reach a verdict on count one charging misdemeanor
criminal trespass, which resulted in a mistrial on that count. Count one was later dismissed by the
State. The jury convicted Bundy of count two, misdemeanor criminal trespass, and count three,
misdemeanor resisting and obstructing.
Bundy was sentenced on the two counts for which the jury found him guilty. On the
misdemeanor trespass count, Bundy was ordered to pay a fine and court costs totaling $2,157.50,
and he was ordered to serve ten days in jail, with credit for one day, and the remaining nine days
were suspended. On the resisting and obstructing count, Bundy was ordered to pay a fine and court
costs totaling $1,157.50, and he was ordered to serve ten days in jail, with credit for one day, and
the remaining nine days were suspended. His sentences were ordered to be served consecutively.
Bundy was also placed on unsupervised probation until March 16, 2023.
Bundy appealed his convictions to the district court. The district court noted that, although
Bundy had raised ten issues on appeal, he did not support all the issues in his briefing with
argument and legal authority. The district court considered those issues to be waived. The district
court’s opinion on intermediate appeal focused on Bundy’s as-applied constitutional challenges to
Idaho’s criminal trespass statute, his contention that the criminal trespass statute did not apply to
public property, and his arguments related to the separation of powers doctrine and unbridled
7
discretion. The district court determined that neither Idaho’s criminal trespass statute nor the
trespass notice Bundy received were ambiguous and that the statute and the notice were not
unconstitutionally vague or overbroad as applied to Bundy’s conduct. The district court explained
that the criminal trespass statute did apply to public property, and it rejected Bundy’s arguments
with respect to the separation of powers doctrine and unbridled discretion. The district court
affirmed Bundy’s convictions. Bundy timely appealed the district court’s decision.
Bundy raises the same as-applied constitutional challenges to Idaho’s criminal trespass
statute on appeal to this Court as he did on intermediate appeal to the district court. He argues that
the statute does not apply to public property. Bundy also maintains that Idaho Code sections 67-
1602(3), 67-1603, and 18-7008 violate the separation of powers doctrine, grant unbridled
discretion to the Director of the Department of Administration to revoke visitor access to the
Capitol building, and create a situation where government employees have unbridled discretion to
prohibit individuals from the public areas of the Capitol building. Bundy also challenges his
conviction for misdemeanor resisting and obstructing, arguing that his arrests for criminal
trespassing were unlawful.
II. ISSUES ON APPEAL
Bundy raised several issues on appeal; however, we agree with the district court that not
every issue was preserved for appellate review. After a review of both cases, we have combined
the issues in both appeals and restate them as follows:
1. Did the district court err when it determined the criminal trespass statute was not vague
as applied to Bundy’s conduct?
2. Did the district court err when it determined that Idaho Code sections 67-1602 and 67-
1603 do not grant the Speaker of the House or the Director of the Department of
Administration unbridled discretion to revoke an individual’s permission to visit the
Capitol building?
3. Did the district court err when it determined the criminal trespass statute is not
unconstitutionally overbroad as applied to Bundy’s conduct?
4. Did the district court err when it determined Idaho’s criminal trespass statute applies to
public property?
5. Did the district court err when it determined that Idaho Code sections 67-1602, 67-
1603, and 18-7008 do not violate the separation of powers doctrine?
6. Did the district court err when it affirmed Bundy’s conviction for misdemeanor
resisting and obstructing despite Bundy’s claim that he was passively resisting an
unlawful arrest?
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III. STANDARDS OF REVIEW
“When reviewing a decision of a district court sitting in its appellate capacity, we do not
review the decision of the magistrate court.” State v. Clark, 161 Idaho 372, 374,
386 P.3d 895, 897
(2016). Instead, this Court is “procedurally bound to affirm or reverse the decisions of the district
court.”
Id. (quoting Bailey v. Bailey,
153 Idaho 526, 529,
284 P.3d 970, 973 (2012)).
Under Idaho Criminal Rule 29(a), the trial court “must enter a judgment of acquittal of any
offense for which the evidence is insufficient to sustain a conviction.” I.C.R. 29(a). When this
Court reviews the denial of a motion for judgment of acquittal, it “must independently consider
the evidence in the record and determine whether a reasonable mind could conclude that the
defendant’s guilt as to such material evidence of the offense was proven beyond a reasonable
doubt.” Clark, 161 Idaho at 374,
386 P.3d at 897 (quoting State v. Mercer,
143 Idaho 108, 109,
138 P.3d 308, 309 (2006)). This Court considers the evidence in the record “in the light most
favorable to the prosecution” to determine whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Id. (quoting State v. Adamcik,
152
Idaho 445, 460,
272 P.3d 417, 432 (2012)).
“The constitutionality of statutes is a question of law.” State v. Leferink, 133 Idaho 780,
783,
992 P.2d 775, 778 (1999) (citations omitted). “When this Court considers a claim that a statute
is unconstitutional, we review the trial court’s ruling de novo since it involves purely a question of
law.” State v. Cobb,
132 Idaho 195, 197,
969 P.2d 244, 246 (1998) (citations omitted). “The party
challenging a statute on constitutional grounds bears the burden of establishing that the statute is
unconstitutional and ‘must overcome a strong presumption of validity.’” Leferink,
133 Idaho at
783,
992 P.2d at 778 (quoting Olsen v. J.A. Freeman Co.,
117 Idaho 706, 709,
791 P.2d 1285,
1288 (1990)). Further, “an appellate court is obligated to seek an interpretation of a statute that
upholds its constitutionality.” Cobb,
132 Idaho at 197,
969 P.2d at 246 (citation omitted).
IV. ANALYSIS
As a preliminary matter, with respect to Docket No. 50715, the district court noted on
intermediate appeal that although Bundy raised ten issues on appeal, his briefing “does not address
all these issues.” The district court noted that it would not consider “issues not supported by
argument and authority.” (Citing Bach v. Bagley, 148 Idaho 784, 790,
229 P.3d 1146, 1152
(2010).) The record on appeal to this Court is devoid of Bundy’s briefing on intermediate appeal
in Docket No. 50715. “It is the appellant’s responsibility to provide an adequate record on appeal,
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and this Court does not presume error on appeal.” State v. Hosey, 134 Idaho 883, 888,
11 P.3d
1101, 1106 (2000). As a result, we confine our discussion of the issues in that case to Bundy’s as-applied constitutional challenges to the criminal trespass statute, whether the criminal trespass
statute applies to public property, and his arguments related to the separation of powers doctrine
and unbridled discretion. Although we determine that Bundy waived his challenge of his
conviction for resisting and obstructing, his arguments with respect to that conviction are the same
as those in Docket No. 50333, where that issue was preserved.
A. Idaho’s criminal trespass statute is not vague as applied to Bundy’s conduct.
Generally, a defendant can demonstrate that a statute is vague “as applied” in two ways.
State v. Cook, 165 Idaho 305, 310,
444 P.3d 877, 882 (2019). To succeed on an as-applied
challenge, a defendant “must show that the statute . . . [1] failed to provide fair notice that [his]
conduct was proscribed or [2] failed to provide sufficient guidelines such that the police had
unbridled discretion in determining whether to arrest him[.]”
Id. (quoting State v. Korsen,
138
Idaho 706, 712,
69 P.3d 126, 132 (2003), abrogated on other grounds by Evans v. Michigan,
568
U.S. 313 (2013)). “When analyzing vagueness, ‘[t]he words of a statute alleged to be
unconstitutionally vague should not be evaluated in the abstract, but should be considered in
reference to the particular conduct of the defendant challenging the statute.”
Id. (quoting State v.
Larsen,
135 Idaho 754, 757,
24 P.3d 702, 705 (2000)).
Bundy argues that Idaho’s criminal trespass statute is unconstitutionally vague as applied
to his conduct because he contends that the statute is ambiguous and did not give him fair notice
that his conduct was proscribed. He also maintains that the statute fails to provide sufficient
guidelines to law enforcement and gives the Speaker of the House unbridled discretion. Both
arguments require this Court to examine the language of the criminal trespass statute and the
statutes governing control and maintenance of the Capitol building and grounds. Each argument
will be discussed in turn.
1. Idaho Code section 18-7008 provided fair notice that Bundy’s conduct was proscribed;
the statute is not ambiguous or “vague” based on the use of the term “remains” and
its derivatives.
Bundy argues that Idaho Code section 18-7008 “fails to give [him] adequate notice
concerning the conduct that it proscribes on property open to the public, and forces [him] to guess
at the meaning of subsections five, six, and seven, as well as the definition of remains and
permission found in subsection one.” He maintains that the criminal trespass statute is ambiguous
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because various subsections use the term “remains.” Bundy contends that the criminal trespass
statute failed to provide adequate notice that his conduct was proscribed because he “cannot be
expected to depart from property, which is open to the public, when the statute provides that he
can ignore the command so long as he complies with other conditions,” and “he cannot be expected
to understand [the Speaker of the House’s] order to constitute a revocation as defined by subsection
five” because the Speaker’s order “does not constitute a revocation as long as Bundy complies
with the lawful conditions imposed on access.”
Idaho Code section 18-7008(2)(a) describes the acts that constitute misdemeanor criminal
trespass. Under subsection (2)(a), a person commits a trespass “when he enters or remains on the
real property of another without permission, knowing or with reason to know that his presence is
not permitted.” I.C. § 18-7008(2)(a). The statute provides:
A person has reason to know his presence is not permitted when, except under a
landlord-tenant relationship, he fails to depart immediately from the real property
of another after being notified by the owner or his agent to do so, or he returns
without permission or invitation within one (1) year, unless a longer period of time
is designated by the owner or his agent.
Id. Subsection (1) of the criminal trespass statute defines terms used throughout the rest of the
statute. See I.C. § 18-7008(1). Subsection (1)(g) defines the term “remains” as “to fail to depart
from the real property of another immediately when notified to do so by the owner or his agent.”
I.C. § 18-7008(1)(g). Subsection (6)(a)(i) explains certain exclusions from the trespass statute:
A person shall not be guilty of trespass under this section for entering or remaining
upon real property if the person entered or remained on the property pursuant to
any of the following rights or authorities:
(a) An established right of entry or occupancy of the real property in question,
including but not limited to:
(i) An invitation, whether express or implied, to enter or remain on real property
including, but not limited to, the right to enter property that is, at the time, open
to the public, if the person is in compliance with lawful conditions imposed on
access[.]
I.C. § 18-7008(6)(a)(i). Subsection (7) provides examples of the exclusions outlined in subsection
(6). Bundy argued below that the definition of the term “remains” in subsections (2), (5), (6), and
(7) of the criminal trespass statute render the statute ambiguous and vague.
On intermediate appeal, the district court examined the plain language of the statute and
determined that the statute was not vague. It explained that “[t]he term ‘remains’ is in subsection
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two, but the term is not in subsections five, six, or seven,” noting that the statute “only defines the
term ‘remains.’” The district court noted that subsections five, six, and seven all use derivatives of
the word “remains,” such as “remaining,” “remained,” and “remain,” all of which are not defined
in Idaho Code section 18-7008(1). It determined that, even if the definition of the term “remains”
was intended to be applied to the derivatives of “remains,” “the definition does not make the statute
vague” because “[t]he definition of ‘remains’ is to fail to depart immediately, or to stay.” It
determined that “[t]he plain language of the statute reflects that the derivatives are used in place
of ‘stay’ in the other subsections” and “[t]he overall meaning is the same.”
The district court also determined that Idaho’s criminal trespass statute was not vague as
applied to Bundy because the subsections “have distinct significance within the statute.” The
district court explained that subsection (2)(a) states what acts constitute a misdemeanor trespass,
while subsection six “describes what makes a person not guilty [of trespass], representing an
exception that avoids a charge of trespass.” The district court noted that Bundy “was adequately
informed that the statute prohibited him from remaining in the [C]apitol auditorium after being
asked to leave by a state agent,” noting that “[t]he lawful condition that permitted [Bundy] to enter
the auditorium was that the legislature was in session. When the session ended the condition for
lawful entry ended.”
We are unpersuaded by Bundy’s byzantine statutory interpretation arguments. He attempts
to inject ambiguity into Idaho’s criminal trespass statute even though the plain language of the
statute is unambiguous. We note that “[a]mbiguity is not established merely because differing
interpretations are presented to a court; otherwise, all statutes subject to litigation would be
considered ambiguous.” State v. Burke, 166 Idaho 621, 623,
462 P.3d 599, 601 (2020) (quoting
Hamilton ex rel. Hamilton v. Reeder Flying Serv.,
135 Idaho 568, 572,
21 P.3d 890, 894 (2001)).
We find no error with the district court’s analysis of the criminal trespass statute as applied
to Bundy’s conduct. We agree with the district court that the statutory definition of the word
“remains” used in subsection (2)(a)(i), which is not used in subsections (5) through (7), does not
render the criminal trespass statute vague as applied to Bundy’s conduct. The use of the word
“remains” or its derivatives does not change the plain meaning of the trespass statute. We agree
with the district court that the statute provided adequate notice to Bundy that he could no longer
stay in the Lincoln Auditorium after he was told to leave. Once the Speaker of the House ordered
the Lincoln Auditorium to be closed and cleared, the auditorium was no longer open to the public
12
for the day. The lawful conditions on access that allowed Bundy and others to be present—to
observe the legislature in session—had ended. We are not persuaded by Bundy’s overly
complicated interpretation of the statute or his argument that he was free to ignore lawful requests
to leave because he was complying with lawful conditions imposed on access. Idaho’s criminal
trespass statute provided adequate notice to Bundy that he was prohibited from staying in the
Lincoln Auditorium after being asked to leave and that the exceptions to trespass do not apply to
him. We hold that the criminal trespass statute is not vague as applied to Bundy’s conduct because
the statute provided Bundy with adequate notice that his conduct was proscribed.
2. The unbridled discretion doctrine applies to law enforcement, not to non-law
enforcement state actors; Idaho Code section 18-7008, when interpreted with House
Rule 63 and Idaho Code section 67-1602(3), grants neither law enforcement nor the
Speaker unbridled discretion.
Bundy also argues that Idaho Code sections 67-1602(3) and 18-7008 fail to provide
sufficient guidelines for enforcement and grant unbridled discretion to the Speaker of the House
to prohibit individuals from being present in the Lincoln Auditorium, rendering the criminal
trespass statute vague as applied to Bundy’s conduct.
Generally, statutes that give law enforcement unbridled discretion to effectuate an arrest
are void for vagueness when they “invite[] arbitrary and discriminatory enforcement.” See State v.
Kelley, 159 Idaho 417, 422,
361 P.3d 1280, 1285 (Ct. App. 2015) (citing State v. Freitas,
157
Idaho 257, 261,
335 P.3d 597, 601 (Ct. App. 2014)). “A statute avoids problems with arbitrary and
discriminatory enforcement by identifying a core of circumstances to which the statute or
ordinance unquestionably could be constitutionally applied.”
Id. (quoting Freitas,
157 Idaho at
261,
335 P.3d at 601). To succeed on an as-applied vagueness challenge on this basis, this Court
reviews the statute’s language to determine whether it grants law enforcement unbridled discretion
in determining whether to effectuate an arrest. See State v. Cook,
165 Idaho 305, 310,
444 P.3d
877, 882 (2019); see also Skilling v. United States,
561 U.S. 358, 412 (2010) (noting that the voidfor-vagueness doctrine addresses concerns about arbitrary and discriminatory prosecutions); Smith
v. Goguen,
415 U.S. 566, 575 (1974) (warning that a failure to have adequate guidelines for
enforcement may lead to “a standardless sweep [that] allows policemen, prosecutors, and juries to
pursue their personal predilections”). The determination of whether a statute grants unbridled
discretion generally does not apply to non-law enforcement state actors, as they are not involved
in determining whether to effectuate an arrest or other aspects of enforcement of the statute. As
13
the State notes, in this instance, the Speaker of the House is not a law enforcement officer, nor is
he a prosecutor. In this context, the unbridled discretion doctrine does not apply to a person in the
Speaker’s role.
Idaho Code sections 67-1602(3) and 18-7008, and House Rule 63 do not grant unbridled
discretion to the Idaho State Police troopers to prohibit individuals from accessing public areas of
the Capitol building. At trial, the jury heard testimony from Sergeant Higley that the troopers
stationed in the Capitol do not have independent discretion to arrest individuals in the areas of the
Capitol building that are under the control of the legislature, absent a misdemeanor being
committed in their immediate presence. Sergeant Higley testified that the troopers could only act
after the Speaker ordered the Lincoln Auditorium to be cleared and Bundy refused to leave. Idaho
Code section 67-1602(3) and Idaho Code section 18-7008 when construed together, do not grant
the police “unbridled discretion” to decide to make an arrest; they address the scope of the
Speaker’s authority.
The district court noted that Idaho Code section 67-1602(3) and House Rule 63 “define the
scope of the [S]peaker’s authority, subject to an appeal to the House.” The district court explained
that “[t]his is not unbridled discretion.” The version of Idaho Code section 67-1602(3) in place at
the time Bundy was removed from the Lincoln Auditorium outlined what spaces the legislative
department controlled in the Capitol building:
The legislative department shall determine the use of the space on the first, third
and fourth floors as well as the basement, which basement shall include the
underground atrium wings. All space within the first, third and fourth floors and
the basement shall be allocated by the presiding officers of the senate and house of
representatives. The presiding officers shall maintain such space . . . provided
however, that the presiding officers may contract with the [D]irector of the
[D]epartment of [A]dministration to maintain such space[.]
I.C. § 67-1602(3) (2007). 2 House Rule 63 outlines the duties of the Speaker of the House with
1F
respect to the House chamber and other spaces. House R. 63. The Speaker’s duties include “to
oversee decorum and preserve order therein.” House R. 63(2). The rule explains that “[t]he Speaker
shall preserve order and decorum and decide questions of order, subject to an appeal to the House.”
House R. 63(1). Under the rule, the Speaker has “general charge and supervision of the House
floor, chamber, galleries, office spaces, committee rooms, adjoining and connecting hallways and
passages[.]” House R. 63(2).
2
This statute was later amended. See Act of Mar. 17, 2022, ch.61 § 1, 2022 Idaho Sess. Laws 193–94.
14
As the district court explained, both section 67-1602(3) and House Rule 63 “give authority
to the Speaker to determine the use of the Lincoln Auditorium,” and to make other decisions
regarding the use of space “when conducting legislative business.” Although on August 25, 2020,
the auditorium was used to hold a committee meeting that was open to the public, the meeting was
moved to a different location inside the Capitol building because of a disruption. At the time the
Speaker ordered the Lincoln Auditorium to be cleared, the committee meeting had concluded. As
the district court noted, the condition that allowed the public to enter the Lincoln Auditorium and
observe the proceedings taking place—a public legislative committee meeting—had ended. House
Rule 63 provided the Speaker of the House with the authority to close the Lincoln Auditorium
because it falls under his supervision of committee rooms. The Speaker of the House also had the
duty to oversee decorum and preserve order to facilitate legislative business. We hold that Idaho
Code section 67-1602(3), House Rule 63, and Idaho Code section 18-7008 do not grant the Speaker
of the House “unbridled discretion” to prohibit individuals from entering and remaining in the
Lincoln Auditorium and, in this instance, the Speaker acted within the scope of his authority to
close the auditorium once the committee’s business had ended.
B. The trespass notice is unambiguous and is not unconstitutionally vague as applied to
Bundy’s conduct.
Bundy raises similar “vague” as-applied challenges to the trespass notice in Docket No.
50715, which we will discuss next.
1. The trespass notice provided clear notice to Bundy of what conduct was prohibited.
Bundy raises arguments similar to those discussed in Section A.1 with respect to the
trespass notice. We find no error with the district court’s determination that the trespass notice was
not vague as applied to Bundy’s conduct. The language of the trespass notice is clear and
unambiguous. It warned Bundy that he was “prohibited from appearing or otherwise being present
at” the public areas of the Capitol building. The notice explained that it would be in place for one
year from August 26, 2020. The notice provided instructions to Bundy about how he could enter
the Capitol building if he had “legitimate business” to conduct on the premises. Included in the
notice was a phone number for the state security manager and instructions to Bundy that he was
required to make arrangements in advance before entering the building. We hold that the trespass
notice itself was not unconstitutionally vague and that it provided clear notice to Bundy of what
was prohibited.
15
2. The unbridled discretion doctrine applies to law enforcement, not to non-law
enforcement state actors; Idaho’s criminal trespass statute, Idaho Code section 18-
7008, when interpreted with Idaho Code sections 67-1602(1) and 67-1603 grants
neither law enforcement nor the Director of the Department of Administration
unbridled discretion.
Bundy raises arguments regarding “unbridled discretion” and the authority of the Director
of the Department of Administration similar to those discussed above in Section A.2. These
arguments are unavailing. Idaho Code section 67-1602(1) does not grant unbridled discretion to
law enforcement to trespass individuals from the public areas of the Capitol building and grounds.
In this context, the unbridled discretion doctrine does not apply to a person in the Director of the
Department of Administration’s role. Nevertheless, we will analyze whether Idaho Code sections
18-7008, 67-1602(1), and 67-1603 give unbridled discretion to the Director of the Department of
Administration to prohibit individuals from accessing the public areas of the Capitol building and
grounds.
Idaho Code section 67-1602(1) outlines the allocation and control over public space in the
Capitol building. The version of Idaho Code section 67-1602(1) that was in place on August 26,
2020, stated that the Director of the Department of Administration was responsible for maintaining
the public spaces in the Capitol building:
The interior within the rotunda, the hallways on the first and second floors, the
restrooms located adjacent thereto, the elevators, the stairways between the first,
second, third and fourth floors (excepting the interior stairways between the third
and fourth floors within the legislative chambers), shall be space within the capitol
building open to the public (“public space”). Subject to this chapter, the [D]irector
of the [D]epartment of [A]dministration shall maintain all public space.
I.C. § 67-1602(1) (2007). Idaho Code section 67-1603 addresses the exterior of the Capitol
building and grounds. I.C. § 67-1603. It grants the Director “exclusive control of the exterior,
grounds and systems of the [C]apitol building.” Id. As the district court noted, “[t]hese statutes
give authority to [the Director of the Department of Administration] to determine the use of the
public spaces in and around the [C]apitol.” The district court recognized that the “statutes define
the scope of [the Director’s] authority, which does not include the legislative floors or other offices
inside the [C]apitol.” The plain language of these statutes indicates that they do not grant the
Director of the Department of Administration unbridled discretion to revoke a visitor’s permission
to visit the Capitol building. The Director is limited by the exceptions to trespass outlined in Idaho
Code section 18-7008(6); in other words, the Director would not be able to prohibit individuals
16
from accessing areas that are open to the public if the individuals are complying with lawful
conditions on access. We agree with the district court that the Director acted within the scope of
his authority when he prohibited Bundy from accessing the public areas of the Capitol building.
Along the same lines, with respect to Bundy’s argument that the same statutes allow
government employees at the Capitol building unfettered authority, we note that those employees
are also limited by Idaho Code section 18-7008(6)(a)(i)’s exception to trespass. So long as an
individual visitor to the Capitol building is complying with lawful conditions on access, that person
cannot be charged with misdemeanor criminal trespass.
C. Idaho’s criminal trespass statute is not unconstitutionally overbroad as applied to
Bundy’s conduct.
Bundy raises as-applied overbreadth challenges to both the criminal trespass statute in
Docket No. 50333 and the trespass notice in Docket No. 50715. We address his overbreadth
challenges to the trespass statute next. Generally, an as-applied challenge based on overbreadth is
rooted in the particular facts of the case. State v. Manzanares, 152 Idaho 410, 427,
272 P.3d 382,
399 (2012). “[T]he party challenging the constitutionality of the statute must demonstrate that the
statute, as applied to the defendant’s conduct, is unconstitutional.”
Id. at 426, 272 P.3d at 398
(quoting State v. Cook,
146 Idaho 261, 262,
192 P.3d 1085, 1086 (Ct. App. 2008)). “If a statute as
applied to a particular defendant infringes upon his or her freedom of speech protected by the First
Amendment, the defendant’s conviction must be reversed without any showing that such
infringement was ‘substantial.’” State v. Poe,
139 Idaho 885, 893,
88 P.3d 704, 712 (2004) (citing
Cohen v. California,
403 U.S. 15 (1971)).
“The first step in overbreadth analysis is to construe the challenged statute; it is impossible
to determine whether a statute reaches too far without first knowing what the statute covers.”
United States v. Williams, 553 U.S. 285, 293 (2008). As discussed in Section A.1 above, Idaho’s
criminal trespass statute provides:
A person commits criminal trespass and is guilty of a misdemeanor, except as
provided in subsection (3)(a)(i) of this section, when he enters or remains on the
real property of another without permission, knowing or with reason to know that
his presence is not permitted. A person has reason to know his presence is not
permitted when, except under a landlord-tenant relationship, he fails to depart
immediately from the real property of another after being notified by the owner or
his agent to do so, or he returns without permission or invitation within one (1)
year, unless a longer period of time is designated by the owner or his agent.
17
I.C. § 18-7008(2)(a). Subsection (6)(a)(i) creates an exception to the crime of trespass when an
individual has “the right to enter property that is, at the time, open to the public, if the person is in
compliance with lawful conditions imposed on access[.]” I.C. § 18-7008(6)(a)(i).
This is not the first time this Court has addressed an overbreadth challenge to Idaho’s
criminal trespass statute. See State v. Korsen, 138 Idaho 706, 713–16,
69 P.3d 126, 133–36 (2003),
overruled on other grounds by Evans v. Michigan,
568 U.S. 313 (2013). In Korsen, the defendant
was charged with misdemeanor criminal trespass after he went to an Idaho Department Health and
Welfare office “to discuss his child support obligations,” and ultimately engaged in a “discussion
[that] grew louder and louder” until he was asked to leave the premises, and he refused. Id. at 710,
69 P.3d at 130. The magistrate court dismissed the charge based on a finding that the criminal
trespass statute was unconstitutionally void for vagueness.
Id. The district court affirmed and
determined that the statute was unconstitutionally overbroad.
Id. The State appealed, and this Court
reversed.
Id. at 710, 716,
69 P.3d at 130, 136. We held that the criminal trespass statute “is not
aimed at regulating speech or communication in any form,” and that “in light of the statute’s
plainly legitimate sweep in regulating conduct, it is not so substantially overbroad that any
overbreadth that may exist cannot be cured on a case-by-case basis.”
Id. at 715,
69 P.3d at 135.
We noted, in the context of cases “involving purely conduct and not speech,” that “[p]hysical
presence in a public building dedicated to public uses other than that of a public thoroughfare, even
presence for the purpose of communicating ideas, is not ‘pure speech,’ ” and “[n]ot all conduct
claimed to have communicative purpose is protected as speech by the First Amendment.”
Id. We
held that the situation at issue in Korsen was not one “where the exercise of free speech was
impinged.”
Id. We explained that the defendant “showed up at the Health and Welfare office to
conduct legitimate business” and “[w]hen it appeared that his desire to obtain modification of [his
child support] obligation could not be obtained at that office . . . , the purpose of his visit to the
Health and Welfare office came to an end.”
Id.
With respect to Docket No. 50333, Bundy entered the Capitol building on August 25, 2020,
and went to the Lincoln Auditorium to observe a committee meeting. Once the meeting was moved
to a different location inside the Capitol building, and the meeting had ended, his purpose for being
in the Lincoln Auditorium came to an end. Although the criminal trespass statute has been
amended since Korsen was decided, the statute is still not aimed at regulating speech or
communication in any form. The language in subsection (2)(a) and the addition of subsection
18
(6)(a)(i) and other sections that specifically address private property do not, by their plain
language, attempt to regulate speech or communication. We acknowledged the possibility of a
future case in Korsen where a prosecution for criminal trespass “against a person on public
property who is exercising his or her free speech rights” could conceivably “be attacked as applied
to that constitutionally-protected conduct.” Id. at 715–16, 69 P.3d at 135–36. Notwithstanding
Bundy’s argument that his case presents the Court with this very scenario, we are unpersuaded by
his argument that his mere physical presence in the Lincoln Auditorium “constitutes protected
speech” in this case. We hold that the facts of Bundy’s case do not provide a situation where his
right to free speech was impinged. Bundy entered the Capitol building and went to the Lincoln
Auditorium to observe a legislative committee meeting. When that meeting was moved out of the
Lincoln Auditorium, and later ended, Bundy’s purpose for being inside the Lincoln Auditorium
ended. As a result, Bundy’s free speech rights were not impinged when troopers asked him to leave
the auditorium and he refused. We hold that the criminal trespass statute is not unconstitutionally
overbroad as applied to Bundy’s conduct.
We note that Bundy’s main contention is that the 2018 version of the statute now
differentiates between public and private property, while the earlier version did not. He argues that
reliance on Korsen and other cases issued before the 2018 amendment is misguided. We disagree.
Our reasoning in Korsen remains relevant here even if the statute itself has been amended because
the plain language of the criminal trespass statute did not change to the point where it is aimed at
regulating speech or communication in any form. We agree with the district court that Bundy was
not charged with trespass because he was engaged in speech; rather, he was charged with trespass
for refusing to leave the Lincoln Auditorium after the meeting he was attending had ended and he
was asked to leave. Thus, the criminal trespass statute was not overbroad as applied to Bundy’s
conduct.
D. The trespass notice was not unconstitutionally overbroad as applied to Bundy’s
conduct.
Having discussed Bundy’s overbreadth as-applied challenge to the trespass statute, we will
discuss his overbreadth as-applied challenge to the trespass notice in Docket. No. 50715. The
district court determined that the Director of the Department of Administration’s trespass notice
was not unconstitutionally overbroad as applied to Bundy’s conduct when he was arrested twice
on April 8, 2021, for entering the Capitol building. The district court explained that Bundy “was
not trespassed from the [C]apitol on August 26, 2020, because he was engaged in speech” and that
19
Bundy “has been given due process to challenge the notice through the proceedings below and on
appeal.” It explained that “[t]here is no indication that the security manager, or any other
government employee, will be determining whether [Bundy] has legitimate business at the
[C]apitol” and “[t]he fact [that Bundy] must notify security of his intent to be present at the
[C]apitol does not restrain his First Amendment rights.” The district court noted that the Director
of the Department of Administration “has the authority to trespass [Bundy] from the public areas
of the [C]apitol,” and that “[t]he request to contact security before coming to the [C]apitol is
unrelated to the suppression of expression . . . .” It is meant to “further the interest of maintaining
a safe environment for everyone who conducts business there.”
This Court has upheld convictions for misdemeanor criminal trespass when a defendant is
in violation of a trespass notice based on the defendant’s conduct, not the defendant’s speech. State
v. Clark, 161 Idaho 372, 377–78,
386 P.3d 895, 900–01 (2016) (per curiam). We explained in
Clark that an arrest and conviction for “nonexpressive conduct”—being physically present in
violation of a notice—does not implicate a defendant’s First Amendment rights.
Id. In Clark, the
State appealed after the defendant’s conviction for misdemeanor trespass was overturned on appeal
by the Court of Appeals, and we reversed.
Id. at 374,
386 P.3d at 897. The defendant in Clark had
been prohibited from entering the Idaho Industrial Commission’s Boise office for one year based
on “repeated disruptive arguments and confrontations” with employees.
Id. at 373,
386 P.3d at
896. The trespass notice was later extended for another year.
Id. During that time, the defendant
returned to the office and was charged with misdemeanor criminal trespass when he was asked by
staff to leave, and he refused.
Id. at 373–74, 386 P.3d at 896–97.
We affirmed the defendant’s conviction for misdemeanor trespass, explaining that the
defendant was charged with trespass not based on the content of his speech, but on his conduct in
violating the trespass notice itself. Id. at 378, 389 P.3d at 901. We adopted and affirmed the Court
of Appeals’ analysis in the Pentico cases, which determined the criminal trespass statute was not
overbroad as applied to Christopher Pentico, and affirmed his convictions for trespass based on
“his conduct of visiting a public building . . . in violation of the notice banning him from that
building and not the content of any communication[.]” Id. at 377,
386 P.3d at 900 (quoting State
v. Pentico,
151 Idaho 906, 914,
265 P.3d 519, 527 (Ct. App. 2011) (Pentico I); see also Pentico v.
State,
159 Idaho 350,
360 P.3d 359 (Ct. App. 2015) (Pentico II) (affirming trespass conviction
20
based on defendant’s entry into a government building after he had received notice that he was no
longer authorized to be there).
In Pentico II, the Court of Appeals explained that “it was Pentico’s nonexpressive
conduct—his entry into the third floor of the Borah Building after receiving notice that he was no
longer authorized to be there—not his speech, for which he was punished as a trespasser.” 159
Idaho at 355, 360 P.3d at 364. The Court of Appeals noted that, although “Pentico has provided
evidence that he was attempting to exercise his First Amendment rights” his “rights were not
infringed when he was charged with trespass for entering the third floor of the Borah Building to
petition the government for redress of his grievances.”
Id. We adopted the Court of Appeals’
reasoning in the Pentico cases and applied that reasoning to the situation in Clark. 161 Idaho at
378–79, 386 P.3d at 900–01. We determined that the defendant in Clark “had no constitutional
right to remain on the Industrial Commission premises after he was asked to depart, and the request
to depart was not made for the purpose of limiting his right to speak or to seek redress of his
grievance with the Supreme Court’s opinion.”
Id. We held that the defendant in Clark had failed
to show that the criminal trespass statute was unconstitutionally overbroad as applied to his
conduct.
Id.
In Docket No. 50715, the criminal trespass statute and the notice of trespass were not
unconstitutionally overbroad as applied to Bundy. Bundy’s conviction for misdemeanor criminal
trespass was based on Bundy’s conduct in entering the Capitol building after he had received notice
that he was trespassed for one year. It was not based on Bundy’s speech. The record below
established that Bundy was not arrested for the purpose of limiting his ability to engage in political
speech, including meeting with specific legislators, but that it was based on Bundy’s physical
presence in the building after he had received notice prohibiting him from accessing public areas
of the Capitol building. The State charged Bundy with misdemeanor criminal trespass, as outlined
in the second amended criminal complaint, based on his conduct in entering the Capitol building
on April 8, 2021, “knowing or having reason to know that his presence is not permitted because
[he] returned to and entered the property without permission within one year of having been
notified by the owner’s agent to remain off the property[.]”
At the jury trial, the Director of the Department of Administration testified regarding the
trespass notice, including the provision that allowed Bundy to enter the Capitol as part of “any
legitimate business [he had] to conduct with agencies of the State of Idaho,” so long as he made
21
arrangements in advance with the building’s security manager. The Director testified that Bundy
did not contact him or the security manager before entering the Capitol building on April 8, 2021.
Sergeant Zach Nichols testified that Bundy was removed from the building after the troopers
became aware he had entered the building and was inside the men’s restroom. Sergeant Nichols
testified that Bundy was arrested for violating the trespass notice itself and that Bundy asked
multiple times why he was being trespassed. There was no testimony indicating that the arrest was
due to the substance of anything Bundy was trying to communicate. Along the same lines, Trooper
Vallard testified that Bundy was arrested for criminal trespass because he was sitting outside of
the Senate chambers on a bench in the hallway after he had been prohibited from entering the
public areas of the Capitol building. There was no testimony indicating that Bundy was arrested
based on the content of his speech during the second arrest. Although Bundy claims he was arrested
for his attempts to “express political speech” with members of the legislature, the record below is
devoid of evidence that Bundy’s subjective purpose in entering the Capitol building on April 8,
2021, was conveyed to anyone at the time. As a result, we hold that the trespass notice was not
unconstitutionally overbroad as applied to Bundy.
E. Idaho’s criminal trespass statute applies to both public and private property.
Bundy argues that Idaho’s criminal trespass statute does not apply to public property. We
discuss that argument next. He maintains that the legislature, when it amended the statutory
scheme related to both civil and criminal trespass, did not intend to apply the misdemeanor
criminal trespass statute to public property, based on the definition of the term “permission” in the
statute, and the legislative debates surrounding trespassing on private property.
Idaho Code section 18-7008(2)(a) describes the acts that constitute misdemeanor criminal
trespass, explaining that a person commits a trespass “when he enters or remains on the real
property of another without permission, knowing or with reason to know that his presence is not
permitted.” I.C. § 18-7008(2)(a). The statute explains:
A person has reason to know his presence is not permitted when, except under a
landlord-tenant relationship, he fails to depart immediately from the real property
of another after being notified by the owner or his agent to do so, or he returns
without permission or invitation within one (1) year, unless a longer period of time
is designated by the owner or his agent.
I.C. § 18-7008(2)(a). Subsection (1) of the criminal trespass statute defines terms that are used
throughout the rest of the statute. I.C. § 18-7008(1).
22
Idaho Code section 18-7008(1)(f) defines the term “permission” as:
[W]ritten authorization from the owner or his agent to enter upon private land,
which shall include the signature of the owner or his agent, the name of the person
being given permission, the appropriate dates that the permission is valid and a
general description of the property; or another form of permission or invitation
recognized by law.
I.C. § 18-7008(1)(f). Subsection (1)(g) defines the term “remains” as “to fail to depart from the
real property of another immediately when notified to do so by the owner or his agent.” I.C. § 18-
7008(1)(g). Subsection (6)(a)(i) explains certain exclusions from the trespass statute:
A person shall not be guilty of trespass under this section for entering or remaining
upon real property if the person entered or remained on the property pursuant to
any of the following rights or authorities:
(a) An established right of entry or occupancy of the real property in question,
including but not limited to:
(i) An invitation, whether express or implied, to enter or remain on real property
including, but not limited to, the right to enter property that is, at the time, open
to the public, if the person is in compliance with lawful conditions imposed on
access[.]
I.C. § 18-7008(6)(a)(i). On intermediate appeal, the district court determined that Idaho’s criminal
trespass statute applies to both public and private property based on the plain language of the
statute. The district court noted that the statute uses “the terms ‘private’ and ‘public’ where
necessary to distinguish between each type of property,” and that “[t]he term ‘real property’ is
otherwise used throughout.” The district court noted that subsection (6)(a)(i) “recognizes
permission to enter upon state property by the public under conditions. The statute allows a state
agent to revoke that permission by notifying the public to depart from a public building or area
when these conditions do not exist.” As a result, the district court noted that the plain language of
the statute supports the interpretation that it applies to public property as well as private property.
“Statutory interpretation begins with the statute’s plain language.” State v. Taylor, 160
Idaho 381, 385,
373 P.3d 699, 703 (2016) (quoting State v. Owens,
158 Idaho 1, 3,
343 P.3d 30,
32 (2015)). “This Court considers the statute as a whole, and gives words their plain, usual, and
ordinary meanings”
Id. (quoting Owens,
158 Idaho at 3,
343 P.3d at 32). Generally, “[w]here the
language of a statute is plain and unambiguous, this Court must give effect to the statute as written,
without engaging in statutory construction.” State v. Rhode,
133 Idaho 459, 462,
988 P.2d 685,
688 (1999) (citation omitted).
23
Bundy focuses on the definition of “permission” in Idaho Code section 18-7008(1)(f),
which begins with, “[w]ritten authorization from the owner or his agent to enter upon private
land . . . .” I.C. § 18-7008(1)(f) (emphasis added). However, this subsection is not limited to
private property. The last phrase of the subsection provides, “or another form of permission or
invitation recognized by law.” Id. This phrase is not limited to private property. As explained
above, Idaho Code section 18-7008 as a whole is not limited to private or public property but
addresses trespasses on real property. By focusing on one phrase in a definition section, Bundy
ignores the language in the statute that describes the crime of trespass: “A person commits criminal
trespass and is guilty of a misdemeanor . . . when he enters or remains on the real property of
another without permission, knowing or with reason to know that his presence is not permitted.”
I.C. § 18-7008(2)(a). This language refers to real property and is not limited to public property or
to private property.
As we noted above in Section A.1, we hold that the criminal trespass statute is
unambiguous. We agree with the district court that the plain language of the statute applies to both
public and private property. The statute’s reference in subsection (6)(a)(i) to property that is open
to the public and its other references throughout to real property indicate that its application is not
limited only to private property. We need not look to legislative history and intent to determine
the scope of the statute.
F. Idaho code sections 67-1602(3), 67-1603, and 18-7008 do not violate the separation of
powers doctrine.
Bundy argues that certain statutes violate the separation of powers doctrine. The district
court determined that Idaho Code sections 67-1602(3) and 67-1603 “do not delegate lawmaking
authority to [the Director of the Department of Administration],” because his “authority under the
statutes is limited to managing the use of the public areas of the [C]apitol and [grounds].” The
district court also determined that Idaho Code section 18-7008 did not violate the separation of
powers doctrine because it does not, as Bundy argued, “allow[] a government employee to revoke
permission to enter or remain on public property ‘at any time, for any reason.’” Citing the
exceptions to criminal trespass outlined in subsection (6) of the statute, the district court noted that
the statute “limits the authority of a government employee to revoke permission to be on public
property when a person is compliant with lawful conditions imposed on access.” We agree with
the district court’s analysis.
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“The non[-]delegation doctrine bars Congress from transferring its legislative power to
another branch of Government.” Bedke v. Ellsworth, 168 Idaho 83, 95,
480 P.3d 121, 133 (2021)
(alteration in original) (quoting Gundy v. United States,
588 U.S. 128, 132 (2019)). To determine
whether a statute is “an unconstitutional delegation of legislative power,” this Court considers
“whether the statute imposes guidelines on the decision-making body, or grants ‘unbridled’
authority to that body.”
Id. (quoting Emps. Res. Mgmt. Co. v. Kealey,
166 Idaho 449, 454,
461
P.3d 731, 736 (2020)). “[T]he crux of the analysis is an examination of whether the statute lacks
‘standards, guidelines, restrictions or qualifications of any sort placed in the delegating
legislation.”
Id. (quoting Emps. Res. Mgmt. Co., 166 Idaho at 454,
461 P.3d at 736). “[A] lack of
legislative guidance violates the Idaho Constitution’s separation of powers doctrine as an unbridled
delegation of lawmaking power, while the presence of such guidelines and restrictions creates a
proper ‘fact-finding’ status to ascertain the facts and conditions upon which the law becomes
operative.”
Id. (quoting Emps. Res. Mgmt. Co., 166 Idaho at 454,
461 P.3d at 736). This Court also
considers “the practical context of the problem to be remedied and the policy to be served.”
Id.
(quoting Emps. Res. Mgmt. Co., 166 Idaho at 454,
461 P.3d at 736).
Generally, “[t]he doctrine focuses on the delegation of legislative authority to a separate,
co-equal branch of government, i.e., the executive or the judiciary.” Id. This Court has held that
the separation of powers doctrine is inapplicable to Idaho Code section 67-1602(3) because even
if the statute delegates authority “within the legislative branch, the ultimate power to wield that
delegation remains in the [l]egislature.”
Id. In other words, the statute does not delegate authority
to a “coordinate branch of government . . . to determine the use of that space [within the Capitol
building] or to use legislative law-making power.”
Id. In Bedke, we held that the statute itself
“unambiguously delegates authority to the presiding officers to both determine the use of and to
allocate the space” on the floors outlined in Idaho Code section 67-1602(3). Id. at 96,
480 P.3d at
134.
Bundy argues that Idaho Code sections 67-1602 and 67-1603 “unconstitutionally
delegate[] authority to the [D]irector without constitutional safeguards.” He contends that section
67-1603 “gives unbridled delegation because it fails to set any guidelines by which a person who
is issued a trespass notice can challenge that notice.” Bundy argues that he “has a liberty interest
in his First Amendment right to redress his government, to speak at hearings at the Capitol
building, and to associate with legislators whose offices are found inside of the barrier created by
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the Director’s control over the exterior of the Capitol building.” He also argues that section 67-
1603 “creates an unacceptable risk” because “there are no limits placed on the Director’s ability
to revoke permission to enter or remain at the Capitol building at any time and for any reason.”
Bundy maintains that the Director of the Department of Administration “usurp[ed] legislative
authority” to use his authority under section 67-1603 “to build a mote [sic] around the interior of
the Capitol building.”
We hold that Idaho Code sections 67-1602 and 67-1603 do not violate the separation of
powers doctrine because they do not delegate legislative or lawmaking authority to another branch
of government, nor do they transfer to the Director of the Department of Administration the
authority to determine the use of different parts of the Capitol building. They do grant the Director
the authority to maintain the public sections of the Capitol building and grounds. Idaho Code
section 67-1603 grants the Director “exclusive control of the exterior, grounds and systems of the
[C]apitol building.” I.C. § 67-1603. Idaho Code section 67-1604 allows the Director of the
Department of Administration to “promulgate rules, pursuant to chapter 52, title 67, Idaho Code,
governing access to and use by the public of the [C]apitol building and its grounds.” I.C. § 67-
1604. The trespass notice provided that the Director “has the control, under Idaho Code sections
67-1602 to 1604, and 67-5709, over the properties identified below.” It provided that “I am writing
to provide you with notice that . . . you are prohibited from appearing or otherwise being present
at: Public areas of the Idaho State Capitol Building 700 West Jefferson Street, Boise, Idaho 83702
and the State Capitol Exterior.” This is not the result of a delegation of authority that offends the
separation of powers doctrine. Idaho Code sections 67-1602 and 67-1603 outline the scope of the
Director’s authority, as discussed in Section A.2. The Director of the Department of
Administration is also limited by the law concerning trespass found in Idaho Code section 18-
7008(5) and (6). As noted in Section A.2 as well, those same statutes do not grant government
employees the unfettered ability to revoke a visitor’s access to public areas of the Capitol building
because the employees are limited by the criminal trespass statute and its exceptions found in Idaho
Code section 18-7008(5) and (6).
We agree with the district court’s determination that these statutes do not violate the
separation of powers doctrine and that Bundy’s “initial right to enter the [C]apitol was revoked,
due to his prior lack of compliance with conditions imposed on access.” We agree with the district
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court that Bundy failed to comply with the terms of the trespass notice by returning to the Capitol
building on April 8, 2021, without contacting the State Security Manager in advance.
G. The district court did not err when it affirmed Bundy’s convictions for misdemeanor
resisting and obstructing because Bundy’s arrests were lawful.
Bundy challenges his convictions for misdemeanor resisting and obstructing. We discuss
those arguments next. As we noted at the outset, Bundy did not preserve his challenge to his
conviction for resisting and obstructing an officer in Docket No. 50715; however, his arguments
related to his conviction are identical to those made in Docket No. 50333. Bundy argues that his
arrest was unlawful, based on his as-applied challenges to the criminal trespass statute, and by
extension, the trespass notice. The district court affirmed his conviction for misdemeanor resisting
and obstructing in both cases after it determined that Bundy’s underlying arrest for criminal
trespass was lawful. As a result, the district court noted that Bundy “did not have the right to resist,
delay or obstruct the lawful action of a public officer, regardless of whether that resistance was
passive.” Bundy conceded on intermediate appeal that “a lawful arrest is part of an officer’s official
duties,” and the district court determined it was “apparent” that Bundy knew the arresting officer
was a law enforcement officer.
Generally, passive resistance is only a defense to a charge of resisting and obstructing when
the defendant can show that the public officer’s actions were unlawful. See State v. Bishop, 146
Idaho 804, 817,
203 P.3d 1203, 1216 (2009). In this case, the convictions for misdemeanor
resisting and obstructing were supported by substantial and competent evidence. Sergeant Blake
Higley testified regarding Bundy’s arrest in the Lincoln Auditorium. He testified that the Speaker
and the Pro Tem each have control over the Lincoln Auditorium, and that the Speaker ordered the
Lincoln Auditorium to be cleared after the meeting was moved to a different room in the Capitol
building. Sergent Higley testified that Bundy remained in the auditorium after the Speaker ordered
the troopers to “clear the room.” Bundy “made himself dead weight,” which required multiple
troopers to remove him from the auditorium. The troopers had to “pick[] him up [and] put[] him
in a roller desk chair to get him out of the Capitol, because he wouldn’t walk.” Sergeant Higley
explained that Bundy delayed the troopers in clearing the room by approximately fifteen to twenty
minutes. Sergeant Higley removed Bundy from the Lincoln Auditorium pursuant to a lawful order
from the Speaker. House Rule 63 granted the Speaker of the House the authority to preserve order
and decorum, subject to an appeal to the House, and it granted him oversight of committee meeting
rooms. Along the same lines, Idaho Code section 67-1602 grants the legislature control over
27
portions of certain floors within the Capitol building, including the floor where the Lincoln
Auditorium is located. As a result, we hold that Bundy’s arrest was lawful, and that the district
court did not err in affirming his conviction for resisting and obstructing.
Bundy’s argument that the State failed to prove he acted aggressively when being placed
under arrest is unavailing. Bundy’s passive resistance required multiple officers to remove him
from the Lincoln Auditorium and delayed or obstructed the troopers in carrying out their official
duties. Because we hold that Bundy’s arrest for criminal trespass was lawful, evidence of passive
resistance is not sufficient to overturn a conviction for resisting and obstructing in Docket No.
50333.
V. CONCLUSION
For the reasons stated herein, the district court’s decisions affirming Bundy’s convictions
for trespass and for resisting and obstructing in Docket Nos. 50333 and 50715 are affirmed.
Chief Justice BEVAN and Justices BRODY, MOELLER and PETTY, J. Pro Tem,
CONCUR.
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