Welcome to the Law Library Letter

Welcome to our new service: the Law Library Letter, a blog from the Wyoming State Law Library. (For those of you supremely uninterested in blogs, we plan to send all information posted on the blog to the WyomingAttorneys-L email list as well.) [Update 2/2/2007: only opinion summaries are sent to the WyomingAttorneys-L email list. -kj]

In addition to summaries of recently-decided Wyoming Supreme Court cases, we will periodically post information focused on the following topics:

• Library Services & Announcements (especially updates about the impending Supreme Court building renovation and move to the Hathaway building)
  
• How-to (Technical & Non-technical)
  
• Educational Events
  
• Online Resources

So, without further ado, here is our first “real” post!

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Here we are again: a New Year. We at the State Law Library join the chorus of well-wishers hoping you all have an exciting, challenging and satisfying 2006.

Our biggest challenge this year will be our move to a temporary location in the Hathaway Building to allow for renovation of the historic Supreme Court Building. June is the current target date for the move. We regret that evening and weekend access to the library will no longer be possible at the Hathaway location. Our web page and the Law Library Letter will keep you informed of our progress. Although we will be packing many of our books and reducing our hours as a result of decisions made by the Supreme Court, we remain your best source for legal materials. We have in-library public access on our research computers to Westlaw, Shepards and HeinOnline (law reviews and journals). Between 8:00 and 5:00, there is always a law librarian available to assist you. You can contact us via email, telephone, or online.

Educational Event
January 24th, Katie Jones our Electronic Services professional and Meg Martin the Public Services librarian, attended a day long presentation in Denver about Blogs (or for those that speak legalese – blawgs) and RSS feeds. Watch for an announcement of a brown bag lunch to introduce Blogs and RSS feeds for attorneys.

How-to: Blogs and RSS—What’s the big deal?
A blog (shortened from weblog or web log) is a web site in which entries are posted and displayed in reverse chronological order. While many blogs have been created as online diaries or journals, there are also now millions of blogs provided in order to bring attention to updated information or to allow groups of people to discuss topics of common interest.

WSLL Blog
We developed the Wyoming State Law Library blog, Law Library Letter, to allow increased access to the Wyoming Supreme Court case summaries that have been traditionally posted to the WyomingAttorneys-L electronic listserv. We will also be posting any announcements regarding our services, resources, relocation to the Hathaway building, etc.

Another benefit of our blog is that you now have an option to subscribe to the RSS feed. While we will continue to post our case summaries to the WyomingAttorneys-L lists, this will provide an additional method to be made aware of the newly decided Wyoming Supreme Court decisions.

So, what is RSS?
RSS stands for Rich Site Summary or Really Simple Syndication. But unless you are a major techie, this means nothing. A more useful explanation is that through this technology, you can track a wide variety of online information, from Dilbert, to the very popular Wyoming State Law Library blog, to CNN. And you can do this without wading through relentless email messages or trying to remember to frequently check your favorite web sites. The information comes in as linked headlines accompanied by brief summaries or the first few lines of the information.

Tutorial
RSS feeds are typically indicated on a web site with an orange symbol: . The easiest method to understand how RSS can work for you is to follow these steps. This will take less than 15 minutes—try it!

1. Go to Bloglines, a popular web-based RSS reader (aggregator) and set up your free account. Other RSS aggregator choices include downloading FeedReader or using the feed options in the FireFox, Opera or Safari browsers.
   
2. Now you need an RSS feed to add to Bloglines. You can search through Bloglines for feeds, as well as in these blog search engines: Syndic8, Technorati, Feedster or CompleteRSS. But a shameless plug for our blog is in order, so open a new browser window and go to http://wyolawlibrary.blogspot.com/ and click on the orange RSS image. Copy the web site address (URL) of the orange RSS image (you can also right click on the RSS image and choose “Copy Shortcut” or “Copy Link Location”) and return to your Bloglines account.
   
3. Choose the “My Feeds” tab. Click on “Add” and paste the copied shortcut (http://wyolawlibrary.blogspot.com/atom.xml) into the “Blog or Feed URL” box. Click “Subscribe.”
   
4. You will be offered some preferences for accessing and organizing your Bloglines feeds. Skip those now for later investigation and click “Subscribe” at the bottom of the page.
   
5. Now the name of the RSS feed will be in the left pane of the Bloglines window. Click on the RSS feed name and you will see the headlines displayed in the right pane.

Summary 2006 WY 2

Summary of Decision issued January 5, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: White v. Table Mountain Ranches Owners Association, Inc.

Citation: 2006 WY 2

Docket Number: 04-254

Appeal from the District Court of Laramie County, Honorable Edward L. Grant, Judge

Representing Appellant (Defendant): Anne U. White, Pro Se, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): No appearance.

Date of Decision: January 5, 2006

Issues: Whether Appellant should have been allowed to supplement the record. Whether the district court erroneously awarded attorney’s fees to Appellee. Whether enforcing the order holding Appellant in contempt would be inequitable. Whether service of the order setting a hearing was inadequate.

Holdings: In an appeal from a contempt citation, the Court will not overturn the trial court’s action except for an abuse of discretion since the inherent power to punish for contempt is securely vested within a trial judge’s discretion. Appellant did not prepare a statement of the evidence or proceedings in the district court as required by W.R.A.P. 3.03. The Court prohibited Appellants’ attempt to construct a record ex parte.
The Court could not discern evidence in the record in support of Appellant’s contention that the third motion for order to show cause was brought by Appellee’s secretary and not by Appellee. If the secretary had acted in her individual capacity, she would have to pay her own attorney’s fees. Because Appellant’s argument is not supported by the record, the Court affirmed the district court’s award of attorney fees.
Apppellant’s claim of “relative hardship” was based on assertions and averments unsupported by the record and the Court stated it would not consider such an argument for the first time on appeal.
Service of the district court’s order setting the “show cause” hearing was not considered because the issue was not raised before the district court and was not supported by the record.

The decree of the district court was affirmed.

J. Voigt delivered the opinion for the court.

Link to case: http://tinyurl.com/dtgf2 .

Summary 2006 WY 13

Summary of Decision issued January 20, 2006.

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Cook v. Shoshone First Bank

Citation: 2006 WY 13

Docket Number: 05-105

Appeal from the District Court of Park County, the Honorable Edward Grant, Judge.

Representing Appellants: Mark W. Gifford, Casper, Wyoming.

Representing Appellee: Scott E. Kolpitcke and Tracy J. Copenhaver of Copenhaver, Kath, Kitchen & Kolpitcke, LLC, Powell, Wyoming. Argument by Mr. Copenhaver.

Date of Decision: January 20, 2006

Issues: Whether the district court erred when it granted summary judgment in favor of Appellee, holding that the record is devoid of reasonable inferences to support Appellants’ legal theories.

Holdings: Summary judgment is proper if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The Court examines the record de novo. They accord no deference to the district court’s decisions on issues of law.
Worker’s Compensation Immunity: The Court has held that where a claimant provides clear and convincing evidence that an employee’s suicide or attempted suicide was the result of mental injury suffered subsequent to a compensable injury, the claim is covered by worker’s compensation. There was no allegation that Ms. Proefrock suffered a compensable physical injury, therefore the claims arising out of her suicide were not covered.
Intentional Infliction of Emotional Distress: The Court has adopted the definition of extreme and outrageous conduct as that “which goes beyond all possible bounds of decency, is regarded as atrocious, and is utterly intolerable in a civilized society.” The Court reviewed the evidence presented to determine whether the conduct went beyond all bounds of decency. The Court concluded that summary judgment was proper because the evidence did not raise a genuine issue of material fact for trial.
Foreseeability of Suicide v. Foreseeability of Harm: Because the Court held that no genuine issue of material fact was presented on the issue of outrageousness, the Court did not address the foreseeability issue in the context of the intentional infliction claim.
Negligently caused suicide: In order for liability to attach for a decedent’s suicide, there must be a wrongful act. The record showed that Appellee did only that which an employer is entitled to do when funds are found to be missing.
Emotional Distress: Mr. Proefrock’s claim for negligent and intentional infliction of emotional distress required proof of negligence. Because the Court found no genuine issue of material fact, summary judgment was properly granted.
Punitive damages: Summary judgment on the underlying claims effectively disposed of the punitive damages claim.

The decision of the district court is affirmed.

J. Kite delivered the opinion for the court.

Link to the case: http://tinyurl.com/95vm8 .

Summary 2006 WY 12

Summary of Decision issued January 20, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Sanchez v. State

Citation: 2006 WY 12

Docket Number: 04-183

Appeal from the District Court of Carbon County, Honorable Kenneth Stebner, Judge

Representing Appellant (Defendant): Kenneth M. Koski, Public Defender; and Donna D. Domonkos, Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and David L. Delicath, Senior Assistant Attorney General.

Date of Decision: January 20, 2006

Issues: Whether extrinsic impeachment evidence admitted by the district court was harmless error. Whether the prosecutor committed misconduct during his closing argument. Whether the district court erred in excluding evidence concerning the victim’s affiliation with an “outlaw” motorcycle gang.

Holdings: Impeachment of witness Tappan: The district court concluded that if Tappan had testified at trial, his credibility would have been subject to attack by the prosecution, and that the incident that Appellant’s trial counsel objected to was a fair and relevant attack on Tappan’s credibility. Even if the district court had erred, Appellant would still have had to demonstrate that such an error warranted a reversal of her conviction. The Court reviewed the evidence received at trial which revealed that Tappan’s credibility did not hinge upon the objected testimony. The Court could not find that there was a reasonable possibility that the verdict might have been more favorable to the Appellant if the testimony at issue had been excluded.
Prosecutorial Misconduct: When there is no objection raised at trial, the standard of review is plain error. The Court reviewed the record and found that the prosecutor was suggesting reasonable inferences that could be made from the evidence received at trial. Appellant did not demonstrate that the prosecutor’s closing argument violated a clear and unequivocal rule of law.
Motorcycle Gang Affiliation Evidence: The Court focused on the district court’s analysis pursuant to W.R.E. 403 which rule provides that although relevant, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The Court applies an abuse of discretion standard for review. The Court found after a review of the record that whatever probative value the testimony might have had in this case was diminished by concerns regarding unfair prejudice. The Court concluded that the Appellant had not demonstrated that the district court clearly abused its discretion in excluding the testimony.

The decree of the district court was affirmed.

J. Voigt delivered the opinion for the court.

Link to the case: http://tinyurl.com/9lnmx .

Summary 2006 WY 11

Summary of Decision issued January 19, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Chippewa v. State

Citation: 2006 WY 11

Docket Number: 05-96

Appeal from the District Court of Fremont County, Honorable Norman E. Young, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; David L. Delicath, Senior Assistant Attorney General.

Date of Decision: January 19, 2006

Issue: Whether the district court erred when it ordered restitution over defense counsel’s objection.

Holding: The complaint concerns the sufficiency of the evidence supporting the amount of restitution ordered by the district court. The Court declined to consider the claim because they found that Appellant waived his right to contest the restitution award when he knowingly and voluntarily agreed in the plea agreement to pay restitution and then failed to object at sentencing to the restitution amount.

The decree of the district court was affirmed.

J. Golden delivered the opinion for the court.

Link to the case: http://tinyurl.com/d24zm .

Summary 2006 WY 10

Summary of Decision issued January 18, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Britt v. Fremont County Assessor

Citation: 2006 WY 10

Docket Number: 05-55

Appeal from the District Court of Fremont County, Honorable Norman E. Young, Judge

Representing Appellants (Petitioners): Beverly J. Scott of James and Scott, PC, Riverton, Wyoming.

Representing Appellee (Respondent): James Whiting, Deputy Fremont County Attorney, Lander, Wyoming.

Date of Decision: January 18, 2006

Issues: Whether the decision of the Fremont County Board of Equalization was supported by substantial evidence or in the alternative whether the decision of the Fremont County Board of Equalization was arbitrary and capricious for other reasons. Whether the Fremont County Assessor failed to follow applicable Wyoming Department of Revenue rules and regulations. Whether the assessment violates a constitutional right or privilege.

Holdings: Appellants challenged the ad valorem tax assessment of their cabin located on federal land in Fremont County. The Court reviews administrative action pursuant to Wyo. Stat. Ann. § 16-3-114(c) of the Wyoming Administrative Procedure Act. Findings of ultimate fact are reviewed de novo. The party asserting an improper valuation method bears the burden of proof. The Court affords no deference to the appellate review conducted by the state board or by the district court.
Challenges to the valuation of property for the purpose of ad valorem tax assessment are rooted in Wyo. Constr. Art. 15, § 11 which the Court has interpreted to require only a rational method of appraisal, equally applied to all property, which results in essential fairness. For ad valorem taxes, taxable property is to be valued annually at its fair market value. The Department of Revenue promulgated regulations for four appraisal methodologies: the sales comparison approach, the cost approach, the income or capitalized earnings approach, and the computer assisted mass appraisal (CAMA) automated system approach. The Forest Service land where the cabin is located is exempt form taxation as federal land used primarily for a governmental purpose. However, improvements placed on federal lands for private use do not fall within that exemption. The parties agree that the special use permit is not taxable. Most of the county board’s findings are not pertinent to the Court’s review because they were inaccurate, incomplete, or merely restated the testimony or issues without explaining how these items impacted the county board’s decision. The county board did not make a finding about the fair market value of the cabin or about the value of the special use permit. The county board erroneously concluded that the Assessor’s valuation was improper because it included the value of the permit. Based upon the Court’s review of the evidence presented, the Assessor successfully defended her valuation and Appellants failed to overcome the presumption that her valuation was proper.
The Court reviewed the Assessor’s method of valuation and concluded that the Assessor demonstrated that she considered all necessary factors and exercised professional judgment in accordance with applicable law. The Court also stated that the CAMA method of valuation conformed to the equal and uniform taxation requirements of the Wyoming Constitution.

The decree of the district court was affirmed.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/bjsb6 .

Summary 2006 WY 9

Summary of Decision issued January 17, 2006

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Kennedy Oil v. Lance Oil & Gas Co.

Citation: 2006 WY 9

Docket Number: 05-95

Appeal from the District Court of Johnson County, Honorable John C. Brackley, Judge

Representing Appellants: Morris R. Massey of Brown, Drew & Massey, LLP, Casper, Wyoming; and Timothy J. Kirven of Kirven & Kirven, PC of Buffalo, Wyoming.

Representing Appellees: Patrick R. Day, PC, and James R. Belcher, PC, of Holland & Hart, LLP, Cheyenne, Wyoming.

Date of Decision: January 17, 2006

Issues: Whether Appellants are estopped from denying Appellees’ title. With the resolution of that issue, it will be unnecessary to address the other issues raised by the parties.

Holdings: The parties identified ten interrelated issues and arguments for appellate review, with the primary issue being the district court’s application of the relation or “relation-back” doctrine. The Court contrasted the doctrines of relation and estoppel by deed and discussed the recording act. The district court granted summary judgment to Appellees on the basis of the doctrine of relation. The standard of review of summary judgment is de novo, and the Court will uphold a summary judgment based on any proper legal theory appearing in the record.
The doctrine of relation: “When it becomes necessary in furtherance of justice, a transfer of title that is the result of several steps or transactions is held to take effect by relation from the first substantive act.” The doctrine of relation has also been adapted to and applied to the problem of establishing a water right from permit application to actual appropriation. The same reasoning has been applied to amended court pleadings in W.R.C.P. 15(c) and is incorporated into W.R.C.P. 3(b). In the instant case, the district court concluded that the doctrine of relation “as set forth in Walliker” controlled the outcome, so the Court addressed that case in detail. Walliker was a quiet title action brought by the successors in interest. Its logic, if limited to that circumstance, cannot be imported into the instant case where issues have nothing to do with “proving up” ownership to government land. The Court considered another aspect of Walliker that more nearly equated the present facts. The Court considered the effect of the “quitclaim” language and the effect of quitclaiming only a fractional mineral interest. The common element in all of the applications of the relation doctrine is the establishment of a right or interest through multiple steps. The central precept is that legal title obtained via patent relates back to equitable title obtained via entry, thereby giving effect to conveyances such as mineral leases occurring during the interim. In the instant case, there are no issues of entry or patent. The Court therefore concluded that the relation-back doctrine as used in Walliker was not applicable to the facts of this case.
The Court next turned to estoppel by deed/after acquired title because they felt that a similar result was dictated by application of those doctrines. The general principle is that a grantor and his privies are estopped as against the grantee and those in privity with him to assert anything in derogation of the grant or from denying the truth of any material facts stated in the conveyance. A conveyance may give rise to estoppel by deed when it contains language showing that the grantor intended to convey and the grantee expected to acquire a particular estate. The nature of a conveyance is determined by the intent of the parties. In Wyo. Stat. Ann. §§ 34-2-104 and 34-2-105, the bar to conveyance of after-acquired title via quitclaim deed is specifically limited to those quitclaim deeds that appear in the statutory form. The leases at issue do not resemble the statutory quitclaim deeds and so the statutes do not apply to bar application of the related doctrines of estoppel by deed and after-acquired title. Therefore, Appellants are estopped from denying the title Appellee’s obtained and they are estopped from raising their after-acquired title in derogation of Appellees’ interests.
The Court declined to further consider the Recording Act in the instant case because to do so would violate the fundamental principle of the doctrine of estoppel by deed. Since Appellants could not assert their after-acquired title, there are no conflicting documents upon which the recording act can operate.

The district court's judgment is affirmed.

J. Voigt delivered the opinion for the court.

Link to case: http://tinyurl.com/98fgr .

Summary 2006 WY 8

Summary of Decision issued January 12, 2006

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Fernandez v. State

Citation: 2006 WY 8

Docket Number: 04-213, 04-214

Appeal from the District Court of Laramie County, Honorable E. James Burke, Judge

Representing Appellant (Defendant): Kenneth Koski, Public Defender; Donna D. Domonkos, Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Johnson, Director, Prosecution Assistance Program; Jenny L. Craig, Student Director; Eric Heimann, Intern; and Timothy Justin Forwood, Intern.

Date of Decision: January 12, 2006

Issues: Whether the State violated plea agreements in felony welfare fraud and felony cocaine-related charges during the sentencing hearing.

Holdings: Case No. 04-214 The standard for reviewing claimed breaches of plea agreements is a question that is reviewed de novo. The plea agreement is a contract between the defendant and the State and general principles of contract law apply. When reviewing breaches of plea agreements, the Court applies a two-part test including (1) examination of the nature of the promise and (2) evaluation of the promise in the light of the defendant’s reasonable understanding of the promise at the time the plea was entered. The plea agreements were not reduced to writing so the Court looked to the recitation of the plea agreement given at the change-of-plea hearing. The plea agreement in the welfare fraud case was not at issue. The issue was whether the State complied with the undisputed terms of the agreement. The Court reviewed the transcripts from sentencing and the record as a whole and was satisfied that the welfare fraud plea agreement was not breached.
Case No. 04-213 The plea agreement in the cocaine case was also unwritten. The Court looked to the recitation of the plea agreement at the change-of-plea hearing to attempt to determine whether an agreement existed and if so, the content of such agreement. The issue was raised for the first time on appeal so the Court reviewed under the plain error standard. Appellant failed to show that she pled guilty in reliance on a plea agreement with the State. Appellant failed to object or attempt to withdraw her pleas, so the Court reviewed an ambiguous and contradictory record. Interpreting under contract principles, the Court was unable to conclude that the parties mutually assented to a plea agreement. The record did not tend to show a plea agreement existed. The Court will not assume an agreement existed where the conduct of the parties does not support the existence of such an agreement and the terms recited in the record are not sufficiently definite to enable them to ascertain the content of the agreement. Therefore the Court affirmed the judgment and sentence.

The district court's judgment is affirmed in both cases.

J. Voigt delivered the opinion for the court.

Link to this case: http://tinyurl.com/b3t53 .

Summary 2006 WY 7

Summary of Decision issued January 11, 2006

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Kruzich v. Martin-Harris

Citation: 2006 WY 7

Docket Number: 05-49

Appeal from the District Court of Teton County, Honorable Norman E. Young, Judge

Representing Appellant (Complainant): David G. Lewis of Jackson, Wyoming.

Representing Appellee (Respondent): William P. Schwartz of Ranch & Schwartz, LLC, Jackson, Wyoming.

Date of Decision: January 11, 2006

Issues: Whether the Hearing Examiner incorrectly applied the law regarding the shifting burden of proof. Whether the decision of the Hearing Examiner was unsupported by substantial evidence, and was arbitrary and capricious and not in accordance with the law.

Holdings: The Court’s review is governed by Wyo. Stat. Ann. § 16-3-114(c). The Court examines the entire record to determine whether there is substantial evidence to support an agency’s findings. Appellee requested dismissal of the appeal on the grounds that Appellant’s brief did not comply with W.R.A.P. 7.01(e)(2) (failure to provide citations to the record). The Court declined to impose a sanction because many of the facts alleged by Appellant were not supported by the record. The facts of the case were straightforward and the violation of the rule did not affect or detract from the Court’s ability to review the matter.
The Hearing Examiner noted and applied the shifting burden scheme: once the prima facie case is established, a presumption of discrimination arises and the employer has the burden to produce a legitimate nondiscriminatory reason for its action. If the employer proffers a legitimate reason, the employee then must prove, by a preponderance of the evidence, that the employer’s explanation is merely a pretext for unlawful discrimination. The Hearing Examiner found that Appellant had established by a preponderance of the evidence a prima facie case that he had been discriminated against by his employer. The record clearly shows that the employer’s financial health was poor and that there was a connection between the financial situation and Appellant’s termination. The Hearing Examiner concluded that the continued ill health of Appellee’s finances in 2001 constituted a valid nondiscriminatory explanation for termination of Appellant.

The district court properly affirmed the Hearing Examiner’s decision.

C.J. Hill delivered the opinion for the court.

Link to the case: http://tinyurl.com/85yne .

Summary 2006 WY 6

Summary of Decision issued January 11, 2006

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Sponsel, et al. v. Park County, et al.

Citation: 2006 WY 6

Docket Number: 05-109

Appeal from the District Court of Park County, Honorable Jere Ryckman, Judge

Representing Appellants (Plaintiffs): Richard A. Mincer of Hirst & Applegate, Cheyenne, Wyoming.

Representing Appellees (Defendants): Tracy J. Copenhaver and Scott E. Kolpitcke of Copenhaver, Kath, Kitchen & Kolpitcke, LLC, Powell, Wyoming. Argument by Mr. Copenhaver.

Date of Decision: January 11, 2006

Issues: Whether the WGCA excepts Park County’s conduct with respect to placing necessary signage on County Road 8VC (Clark’s Ford Canyon Road) from the general rule of immunity.

Holdings: This case is an appeal from the district court’s order granting summary judgment in favor of Park County on its theory that it was immune from liability because of the application of the WGCA. Summary judgments are reviewed without according any deference to the district court’s decisions on issues of law. The result in the instant case is controlled by the WGCA, and those statutes establish that immunity is the rule and liability is the exception. Statutory construction is a question of law, so the standard of review is de novo. The Department of Transportation and Park County have been assigned the responsibility to provide proper road signage. The Court construed the plain language of Wyo. Stat. Ann. § 1-39-108(a) as written and in accordance with the applicable standard of review and deemed the statute unambiguous insofar as the issue raised in the instant case. Providing traffic control devices on county highways is not a public service for which immunity has been waived by the WGCA. The Court construed the WGCA to be a “close-ended tort claims act” meaning that unless the claim falls within the statutory exceptions, it will be barred. Inadequate highway signage, if it should rise to the level of alleged negligence, constitutes a defect in the plan or design of a highway or the proper maintenance of a highway and thus is specifically excepted from any waiver of immunity contained in the WGCA.

The district court's order granting summary judgment is affirmed.

C.J. Hill delivered the opinion for the court.

Link to the case: http://tinyurl.com/c9r6t .

Summary 2006 WY 5

Summary of Decision issued January 10, 2006

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Monroe v. State

Citation: 2006 WY 5

Docket Number: 04-105

Appeal from the District Court of Carbon County, Honorable Kenneth Stebner, Judge

Representing Appellant (Defendant): Kenneth Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Public Defender.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; David Delicath, Senior Assistant Attorney General.

Date of Decision: January 10, 2006

Issues: Whether the district court erred in denying the motion to suppress Appellant’s statement, violating his rights under the United States Constitution and Article 1, § 11 of the Wyoming Constitution. Whether Appellant’s Fifth, Sixth and Fourteenth Amendment right to be present at every critical stage of the criminal proceedings against him was violated when he was not allowed to attend his own competency hearing.

Holdings: When reviewing the denial of a motion to suppress, the Court does not disturb the findings of factual issues unless they are clearly erroneous. The evidence is viewed in the light most favorable to the district court’s determination. Issues of law are reviewed de novo. The motion to suppress hearing was relatively limited in scope. After a review of the interrogation, the district court took the matter under advisement and issued a decision letter. The district court concluded that the phrase, “Are you going to get me a good attorney?” was not an unequivocal request for counsel under the circumstances. The Court agreed and stated that the district court’s finding that Appellant had not unequivocally invoked his right to counsel was not clearly erroneous. In keeping with their express adoption of the Davis v. United States rationale, the Court also stated that if Appellant’s request was equivocal, it was not sufficient to prevent further questioning.
The question of whether a defendant has the right to be present at a specific phase of the criminal proceeding is an issue of law which is reviewed de novo. The district court granted Appellant’s motion for a competency evaluation. It was conducted and a report prepared. Appellant was not present at the competency hearing and defense counsel did not seek a continuance. The physician’s opinion was not contested and it supported a finding that the Appellant was competent to proceed. Based upon the contents of the report and the lack of objection to the report, the district court was authorized by Wyo. Stat. Ann. § 7-11-303(f) to enter a finding of competency to proceed without holding a hearing. No actual hearing took place, so the right to attend did not arise. The Court found no error in the procedure utilized by the court nor in its determination that Appellant was fit to proceed.

The district court's judgment is affirmed.

J. Burke delivered the opinion for the court.

Link to case: http://tinyurl.com/dqrx9 .

Summary 2006 WY 4

Summary of Decision issued January 10, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Fraternal Order of Eagles Sheridan Aerie No. 186 v. State

Citation: 2006 WY 4

Docket Number: 05-57

Appeal from the District Court of Laramie County, Honorable E. James Burke, Judge

Representing Appellants (Plaintiffs/Petitioners-Intervenors): Gay Woodhouse and Lori Brand, Gay Woodhouse Law Offices, PC, Cheyenne, Wyoming.

Representing Appellees (Defendants/Respondents) State of Wyoming, Forwood and Redle: Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Senior Assistant Attorney General; and Thomas W. Rumpke, Senior Assistant Attorney General.

Representing Appellees (Defendants/ Respondents) City of Cheyenne and Intlekofer: Michael D. Basom, Cheyenne City Attorney; and Claudia Ryan Angelos, Assistant Cheyenne City Attorney.

Date of Decision: January 10, 2006

Issues: Whether the district court applied the appropriate rules for the construction of penal statutes. Whether the district court erred by ignoring the municipal code of the City of Cheyenne. Whether the district court’s findings of fact were clearly erroneous. Whether Wyo. Stat. Ann. § 6-7-101(a)(iii)(D) violates the Appellants’ rights to the due process of law.

Holdings: After a bench trial, the district court concluded that (1) because profits were shared with “for-profit” entities, the electronic bingo games were not being conducted by non-profit organizations, and were not, therefore, exempt from statutory prohibition; (2) electronic bingo machines are illegal gambling devices; and (3) the gambling statutes are not unconstitutional. This decision includes a glossary of terms in the facts section.
The specific allegation in the instant case is that the district court failed to apply the “rule of lenity” in constructing the gambling statutes, which the appellants characterize as penal statutes. Neither party contends that the statutes are ambiguous, and the district court did not find them to be ambiguous. The Court agreed. Without ambiguity, statutory construction is inappropriate. The rule of lenity that applies to penal statutes, being a rule of construction, has no role to play. The Court summarily affirmed the district court decision on this issue.
The City of Cheyenne has enacted an ordinance entitled “Bingo and Pull Tabs” to “regulate, license, and monitor the conduct of games of chance known as bingo and pull tabs”. Statutory interpretation is a question of law that is reviewed de novo. Appellants provided no authority for the proposition that, in giving effect to the plain meaning of a statute, courts are bound to apply a definition adopted by a local municipality in its ordinances. The Court declined to adopt Appellant’s line of reasoning.
Findings of fact will not be set aside unless they are clearly erroneous. The party claiming that its conduct falls within an exception to a statutory prohibition bears the burden of proving that proposition. The Court discussed 37 Gambling Devices v. State and confirmed that the district court was correct in concluding that the legislature did not intend the bingo exclusion, to extend to games in which the profits go, in anything more than an incidental fashion, to a profit-making person or organization. The Court concluded that the district court found and concluded correctly in the end that the specific electronic game, Fast Action Bingo, was not similar in nature to the game of bingo excluded from gambling in 1971. With one exception, the district court’s findings of fact were not clearly erroneous. The exception was that because there was a dearth of evidence suggesting that traditional bingo is not subject to manipulation, the Court concluded that the district court’s findings to that effect was clearly erroneous. The findings support the district court’s remaining legal conclusions. The evidence clearly showed the vast differences between traditional bingo and Fast Action Bingo. The latter is illegal because it is not the game of bingo excepted from the statutory ban and because it utilizes gambling devices to induce people to gamble, with Dream Games’ intent of deriving a profit therefrom.
The Court reviewed the record and determined that Appellants had abandoned any facial challenge to the gambling statute. They addressed only the as-applied challenge. Appellants contended that “this Court should determine that the statute is clear in excluding all forms, variations and mediums of bingo conducted by non-profit organizations from the statutes own definition of gambling.” The district court did just that when stating that bingo is legal, but that Fast Action Bingo is not bingo, and therefore illegal. The district court said that bingo conducted by a non-profit is legal but that Fast Action Bingo is not being conducted by a non-profit and therefore it is illegal. The Court agreed.
The fact that Appellants got away with violating the statutes for quite some time does not equate to arbitrary and discriminatory prosecution in their present situation. The record is totally devoid of any evidence explaining the various prosecutor’s apparently individual decisions to threaten or pursue prosecution under the gambling statutes. In the absence of such evidence the Court was unwilling to presume impermissible motives.

The district court was correct in all of its major conclusions, which are inter-related: (1) Fast Action Bingo is not statutory bingo; (2) Dream Games operates Fast Action Bingo, thereby inducing others to engage in gambling, with the intent to derive a profit therefrom; (3) Fast Action Bingo equipment and machines are gambling devices because they are used in the playing of that operation; and (4) the statutes are not unconstitutionally vague as applied to Fast Action Bingo.

The decree of the district court was affirmed.

J. Voigt delivered the opinion for the court.

Link to the case: http://tinyurl.com/exr73 .

Summary 2006 WY 3

Summary of Decision issued January 6, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Plymale v. Donnelly

Citation: 2006 WY 3

Docket Number: 05-1

Appeal from the District Court of Albany County, Honorable Wade E. Waldrip, Judge

Representing Appellant (Defendant): Patrick Hunter, Casper, Wyoming.

Representing Appellee (Plaintiff): Devon O’Connell Coleman of Pence and MacMillan LLC, Laramie, Wyoming.

Date of Decision: January 6, 2006

Issues: Whether a motion for reconsideration, a motion that is neither authorized nor recognized under Wyoming Rules of Civil Procedure, can extend time for appeal.

Holdings: The Court has jurisdiction to entertain appeals from final, appealable orders. In the instant case, the Court has jurisdiction only if the district court order denying Appellant’s post-judgment motion for reconsideration is a final, appealable order. The Wyoming Rules of Civil Procedure provide various methods to obtain relief from judgment. They do not recognize a stand-alone “motion for reconsideration”. The Court stated that strict compliance with the rules requires that motions for reconsideration be considered nullities. The Court stated that “[h]enceforth, we will enforce the Wyoming Rules of Civil Procedure as written and consider post-judgment motions for reconsideration, so denominated, a nullity.” The entertainment of motions for reconsideration is a waste of judicial resources. In addition the Court noted that the past practice of recognizing motions for reconsideration had produced inconsistent results. Filing an authorized motion for post-judgment relief will eliminate uncertainty for all involved and will ensure full appellate rights are preserved. The consequence of categorizing a motion for reconsideration as a nullity is that “all judgments or final orders from said motion are a nullity.” This includes orders denying motions for reconsideration and any action taken pursuant to such an order as well. The district order denying Appellant’s motion to reconsider is void. As there is no final appealable order to review, the appeal is dismissed.

J. Golden delivered the opinion for the court.

J. Kite, specially concurred which J. Burke joined: J. Kite was concerned that the majority went further than necessary to reach the result and failed to give proper regard to stare decisis. In Sherman v. Rose, the Court held that a motion for reconsideration cannot extend the time for appeal unless the motion is the functional equivalent of a post-judgment motion authorized under the rules. The holding suggests that any motion delineated as a motion for reconsideration will be automatically a nullity, even if the content of the motion is the functional equivalent of an authorized motion under the rules. As a practical matter, when assessing the timeliness of an appeal and determining whether a post-judgment motion has tolled the time for appealing, the Court will still need to consider the substance of the motion. The emphasis must be on substance rather than form of a particular pleading. Additionally, the majority opinion should have prospective application only.

Link to the case: http://tinyurl.com/b9gno

Summary 2006 WY 2

Summary of Decision issued January 5, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: White v. Table Mountain Ranches Owners Association, Inc.

Citation: 2006 WY 2

Docket Number: 04-254

Appeal from the District Court of Laramie County, Honorable Edward L. Grant, Judge

Representing Appellant (Defendant): Anne U. White, Pro Se, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): No appearance.

Date of Decision: January 5, 2006

Issues: Whether Appellant should have been allowed to supplement the record. Whether the district court erroneously awarded attorney’s fees to Appellee. Whether enforcing the order holding Appellant in contempt would be inequitable. Whether service of the order setting a hearing was inadequate.

Holdings: In an appeal from a contempt citation, the Court will not overturn the trial court’s action except for an abuse of discretion since the inherent power to punish for contempt is securely vested within a trial judge’s discretion. Appellant did not prepare a statement of the evidence or proceedings in the district court as required by W.R.A.P. 3.03. The Court prohibited Appellants’ attempt to construct a record ex parte.
The Court could not discern evidence in the record in support of Appellant’s contention that the third motion for order to show cause was brought by Appellee’s secretary and not by Appellee. If the secretary had acted in her individual capacity, she would have to pay her own attorney’s fees. Because Appellant’s argument is not supported by the record, the Court affirmed the district court’s award of attorney fees.
Apppellant’s claim of “relative hardship” was based on assertions and averments unsupported by the record and the Court stated it would not consider such an argument for the first time on appeal.
Service of the district court’s order setting the “show cause” hearing was not considered because the issue was not raised before the district court and was not supported by the record.

The decree of the district court was affirmed.

J. Voigt delivered the opinion for the court.

Link to case: http://tinyurl.com/dtgf2 .

Summary 2006 WY 1

Summary of Decision issued January 4, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Dunham v. Dunham

Citation: 2006 WY 1

Docket Number: 05-59

Appeal from the District Court of Sheridan County, Honorable John C. Brackley, Judge

Representing Appellant (Defendant): Robert W. Brown of Lonabaugh and Riggs, LLP, Sheridan, Wyoming.

Representing Appellee (Plaintiff): John P. Worrall of Worrall, Greear & Smith, PC, Worland, Wyoming.

Date of Decision: January 1, 2006

Issues: Whether the district court abused its discretion in not dividing $61, 000 that Appellee transferred out of the couple’s joint bank accounts to accounts held solely in Appellee’s name prior to filing for divorce. Whether the district court abused its discretion in treating Appellee’s “Whiting Petroleum income” as past annual income instead of divisible marital property.

Holdings: The division of marital property is within the trial court’s sound discretion and will not be disturbed absent an abuse of discretion. The Court considers only the evidence of the successful party, with every favorable inference that can be drawn from the record. The Court limited their review to the “Statement of Evidence or Proceedings” which had been filed in accordance with W.R.A.P. 3.03. The district court stated in their amended decision letter that it was not able to make significant findings regarding the $61,000 because of the incomplete records they received. The record revealed that Appellant testified regarding the transactions and the trial court found it credible. Under the deferential standard previously stated, the Court affirmed the district court’s decision.
The “Whiting Petroleum income” was considered income by the trial court because Appellant testified he had no right or guarantee to future payments. It was used as income to calculate child support. The Court reviewed the record and stated that the district court weighed the evidence and made a finding of fact that the income was not guaranteed in the future. Based on this finding, the district court correctly determined that this money could not be divided as an item of marital property.

The decree of the district court was affirmed.

J. Voigt delivered the opinion for the court.

Link to case: http://tinyurl.com/8faph .

Law Library Relocation

The Wyoming State Law Library is tentatively scheduled to relocate to the Hathaway Building (1 block West of the Supreme Court Building) in June Summer Fall 2006 for renovation of the Supreme Court building. While we will be in a different location, we want to assure you that our resources will remain accessible. Information regarding the materials that will be available is now posted on our web site: http://www.courts.state.wy.us/LawLibrary/.

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Summary 2005 WY 165

Summary of Decision issued December 29, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: State v. McAuliffe

Citation: 2005 WY 165

Docket Number: 04-65

Petition for Writ of Review/Certiorari

Representing Petitioner: Patrick J. Crank, Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Paul S. Rehurek, Deputy Attorney General. Argument by Mr. Rehurek.

Representing Respondent: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Thomas L. Lee, Special Assistant Public Defender. Argument by Mr. Lee.

Date of Decision: December 29, 2005

Issues: Whether the district court erred in holding that Jones v. State, does not permit searches of the person, vehicle or residence for drugs as a condition of probation for convicted drug defendants.

Holdings: The Court does not interfere with a trial court’s ruling on a motion to suppress unless the findings are clearly erroneous. The constitutionality of a particular search or seizure is, however, a question of law that is reviewed de novo. The district court found that Respondent’s arrest was unlawful and suppressed the drug evidence discovered incident to that arrest. The legality of this particular search depends on whether the probation condition requiring Respondent to submit to random searches was permissible under the Fourth Amendment of the United States Constitution. The Court reviewed the affirmance in Pena which was on the sole ground of consent, and stated that the discussion of the “reasonableness requirement” was dictum. The Court decided that Nixon offered no guidance in the resolution of the issue at hand because the officers had reasonable cause for a second search based on their observations of the residence during the first search that Nixon consented to and that was a part of his probation conditions. Next the Court commented that Jones went beyond the reach of Nixon and Pena because it concerned random searches. The Fourth Amendment analyses in Jones, Knights, and ACC can be applied to the facts of this case. The circuit court’s probation order, with the attendant reasonable search conditions, authorized the detectives as part of their duties to question Respondent about his probation status and to conduct a random search for drugs on his person and in his vehicle; that the detectives were lawfully performing their official duties when they contacted Respondent at the scene of the traffic stop and questioned him; and that Respondent’s statement to the detectives that he was not consenting to the random search, as well as his false statement to the detectives that he was not on probation, gave the detectives probable cause to arrest him for knowingly obstructing, impeding or interfering with peace officers while engaged in the lawful performance of their official duties.

The order of the district court granting Respondent’s motion to suppress is reversed and the matter remanded.

J. Golden delivered the opinion for the court.

J. Voigt specially concurred with J. Kite joining: J. Voigt agreed with the majority that the district court’s order must be reversed and he agreed with the Jones rationale, but was not convinced that Respondent’s statement that he was not on probation and that he did not consent to the search constituted interference with a peace officer because the statements did not hinder the officers’ pursuit of their duties.

District Judge Stebner, retired, dissented: Judge Stebner disagreed with the conclusions drawn from Knights. He concluded that although probable cause is not required, some quantum of individualized suspicion is necessary. He agreed with J. Voigt that Respondent’s conduct did not constitute interference but he felt that the officers would not have found the drugs on his person because they did not have a warrant or probable cause. The officers were relying on the probation condition which required Respondent to consent to the search. When Respondent refused to consent, the officers should have initiated the process for revoking probation as provided by W.R.Cr.P. 39.

Link to the case: http://tinyurl.com/aeymk .