Wednesday, May 31, 2006

Summary 2006 WY 67

Summary of Decision issued May 31, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please 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 using the Universal Citation form, please contact the Wyoming State Law Library and we will provide assistance.]

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

Case Name: Board of Professional Responsibility, WY State Bar v. Ken M. McLaughlin

Citation: 2006 WY 67

Docket Number: D-05-3

Order Suspending Attorney From the Practice of Law

The matter came before the Court upon a “Report and Recommendation to the Wyoming Supreme Court,” filed on May 16, 2006, by the Board of Professional Responsibility for the Wyoming State Bar. After a careful review of the Board of Professional Responsibility’s Report and Recommendation, the materials attached, the Respondent’s Section 16 Affidavit, the Affidavit of Costs and Expenses, and the remainder of the file, the Court found that the Report and Recommendation should be approved, confirmed and adopted by the Court; and that the Respondent Ken M. McLaughlin should be suspended from the practice of law for a period of one years, retroactive to September 21, 2005.

C.J. Hill.

Link to the order: http://tinyurl.com/njgd7 .

The full record with attachments will be available in the database at a later date.

Summary 2006 WY 66

Summary of Decision issued May 31, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please 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 using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Hirsch v. State

Citation: 2006 WY 66

Docket Number: 05-20

Appeal from the District Court of Fremont County, the Honorable Nancy Guthrie, Judge.

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina Kerin, Senior Assistant Appellate Counsel; and Wade Redmon, Student Intern. Argument by Mr. Redmon.

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. Argument by Mr. Delicath.

Date of Decision: May 31, 2006

Issue: Whether the admission by Appellant that he performed oral sex on his twelve year old victim contemporaneous to his guilty plea, provides the factual basis required by Wyoming Rule of Criminal Procedure 11(f). Whether the trial court’s denial of Appellant’s motion to withdraw his guilty plea was an abuse of discretion. Whether the trial court’s election to sentence Appellant without a psychosexual evaluation was an abuse of discretion. Whether the trial court’s consideration of Appellant’s non-charged conduct in its sentencing decision constituted plain error.

Holding: Hirsch was sentenced to a term of thirteen and a half to fifteen years for one count of third degree sexual assault.
Factual Basis for Plea: In the context of circumstances prohibited under the third degree sexual assault statute, the distinction Appellant attempts to draw between a situation in which an actor initiates sexual relations with a victim and one in which the relationship was initiated by the victim, as is alleged here, is one with no legal difference because sexual intercourse is without consent when for any reason, the victim is not in a position to exercise independent judgment abut the matter. The third degree sexual assault statute provides an age of consent of sixteen and the victim was twelve at the time. Since the acts were legally nonconsensual, a reasonable inference could be drawn from the facts admitted by Appellant that the acts were “inflicted” upon the victim as that term is used in the definition proffered by Appellant.
Denial of Motion to Withdraw Plea: The Court reviewed the seven factors suggested as pertinent by Frame v. State which include: (1) whether the defendant has asserted his innocence; (2) whether the government would suffer prejudice; (3) whether the defendant has delayed in filing his motion; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was present; (6) whether the original plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources. Appellant’s argument was predicated on an allegation of ineffective assistance of counsel. Appellant must demonstrate on the record that counsel’s performance was deficient and that prejudice resulted. The Court considered the first, fifth and sixth factors from Frame as they applied to the instant case. The first factor was rejected because Appellant at no time asserted innocence. The fifth factor asks if close assistance of counsel was present and Appellant failed to make the requisite showing. The Court’s review of the record confirmed that the sixth factor was complied with, showing that the plea was voluntary and knowing.
Psychosexual Evaluation: The Court’s review of the record led them to conclude that the district court did not abuse its discretion and that Appellant failed to demonstrate prejudice. Eight months elapsed between the court’s order for evaluation and the sentencing hearing. Appellant did not bring up the question of his inability to pay for the evaluation until sentencing. Also, the Court stated that Appellant failed to establish any prejudice arising from the district court’s decision. The burden was on Appellant to demonstrate prejudice.
Consideration of Uncharged Conduct Evidence in Sentencing: Historically, trial courts have been granted broad discretion to consider a wide range of factors about the defendant and his crimes when imposing sentence. Appellant did not object to consideration of the uncharged conduct in the presentence investigation report. This means that application of the plain error standard was triggered. The Court stated that Appellant could not establish the second prong of that test by showing transgression of a clear and unequivocal rule of law. Without a showing of prejudice, Appellant was not entitled a new sentencing hearing.

The Court affirmed.

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

Link to the case: http://tinyurl.com/pdmb7 .

Summary 2006 WY 65

Summary of Decision issued May 31, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please 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 using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: In the Matter of Worker’s Compensation Claim of: Rodgers v. State, ex rel, Workers’ Safety and Compensation Division

Citation: 2006 WY 65

Docket Number: 05-144

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge.

Representing Appellant (Employee/Claimant): Kirk A. Morgan of Gage & Moxley, PC, Cheyenne, Wyoming.

Representing Appellee (Objector/Defendant): Patrick J. Crank, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; and Kristi M. Radosevich, Assistant Attorney General. Argument by Ms. Radosevich.

Date of Decision: May 31, 2006

Issue: Whether substantial evidence supports the Medical Commission’s decision denying workers’ compensation benefits to Appellant. Whether the Medical Commission properly evaluated conflicting medical evidence and set out findings of fact which indicated which evidence the Medical Commission considered probative.

Holding: Appellant suffered a work-related back injury on December 27, 1983 and since then has undergone twenty-one failed back and neck surgeries. His chronic pain has been treated with numerous narcotic and non-narcotic medications. From March 1997 through April 2000, Appellant began consultation and received treatment for abdominal pain which eventually led to findings including internal hemorrhoids, diverticulosis, ileus and/or non-mechanical gastric outlet obstruction resulting from narcotic medications, a normal esophagus, mild erosive gastritis and a single acute ulcer caused by aspirin in the Fiorinal being taken. In May 2001, an upper GI series and pharyngogram showed no evidence of any stricture, mass or ulceration in the esophagus. In October 2002, he was diagnosed by Dr. Kuckel with further problems secondary to a Helicobacter pylori (H. pylori) infection and at each visit the doctor repeated his diagnosis that Appellant suffered from an esophageal stricture secondary to reflux and gastroparesis secondary to his chronic use of pain medication. In May 2003, the Division issued a Final Determination denying benefits for Appellant’s gastrointestinal disorders stating that on the results of the Independent Medical Examination the treatment for the gastrointestinal disorders was not related to the 1983 back injury. The Medical Commission concluded that the care and treatment provided to Appellant through August 2002 was covered and that the esophageal stricture beginning in October 2002 was not related to the work injury of 1983 and therefore not compensable.
A worker’s compensation claimant has the burden of proving every essential element of his claim by a preponderance of the evidence. When the Court reviews an administrative agency order, they do so as if the case came directly from the agency. In appeals where both parties to a contested case submit evidence, appellate review of the evidence is limited to the application of the substantial evidence test. Even if the agency record contains sufficient evidence to support the administrative decision under the substantial evidence test, the Court applies the arbitrary and capricious standard as a “safety net” to catch other agency action that may have violated the Wyoming Administrative Procedures Act (Wyoming APA).
Findings of Fact: The Court found that the Medical Commission’s decision in the instant case ran afoul of the Wyoming APA because it failed to weigh all of the material evidence offered by the parties, it made ultimate findings of fact unsupported by any basic findings and it improperly took judicial notice of a contested fact.
Medical Commission’s Decision as Arbitrary and Capricious: The Court felt justified in taking the rare step of overturning the fact finder’s determination of the weight to be given a medical opinion and reversed with the directions to enter an order awarding benefits. The Court held that the Medical Commission’s decision to deny benefits was arbitrary and capricious because it was based on inaccurate findings of fact and is contrary to the overwhelming weight of the evidence. Because the medical history was incomplete and included flawed assumptions on which Dr. Perakos (the Independent Medical Examiner) based his opinion, the Court found the Medical Commission arbitrary and capricious.
The Medical Commission accepted the opinion of Dr. Kuckel as persuasive but then misstated the opinion. Based on Dr. Kuckel’s opinion, Appellant’s use of narcotic pain medications to treat his chronic back pain caused his gastrointestinal problems which caused his esophageal stricture. Only a “small portion” of Rodgers’ condition was related to the presence of H. pylori which all parties agreed was not related to the pain medications.

The Court reversed and remanded with directions to vacate the order denying benefits. The district court is to remand to the Medical Commission for entry of an order awarding benefits for the diagnosis and treatment of Appellant’s’ gastrointestinal problems and esophageal stricture, with the exception of costs related solely to the treatment for the presence of H. pylori.

J. Golden delivered the opinion for the court.

Link to the case: http://tinyurl.com/ooq5v .

Friday, May 26, 2006

Summary 2006 WY 64

[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 of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division

Citation: 2006 WY 64

Docket Number: 05-204

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

Representing Appellant (Petitioner): Michael H. Schilling of Schilling & Winn, Laramie, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; and Kristi M. Radosevich, Assistant Attorney General.

Date of Decision: May 26, 2006

Issues: Whether the Medical Commission's finding that Appellant's symptoms were not causally related to her employment was supported by substantial evidence. Whether the Medical Commission's actions were arbitrary and capricious.

Holdings: When an injury arises over time, a Appellant's burden of proof is enhanced by Wyo. Stat. 27-14-603(a) (2005). Although the statute specifically enumerates five elements which need to be established, they are closely related because each contributes to indicate whether the employment environment caused the injury. Therefore, the same evidence will often offer support to several of the elements. The test is whether a Appellant has shown a causal connection between the injury and the employment. In the present action, two experts testified at the contested case hearing as to the casual connection between Appellant's injury and her employment. When faced with deciding between the conclusions of two medical experts, the fact-finder must consider: (1) the opinion given; (2) the reasons for the opinion; (3) the strength of the opinion; and (4) the qualifications and credibility of the individual giving it. The Medical Commission determined that one expert's conclusion could not be relied upon because he had not inquired sufficiently into the Appellant's job duties, the frequency of heavy lifting, or into her non-work-related leisure activities that could have caused her symptoms. In contrast, the testimony of the other physician expert based his opinion on a review of the Appellant's entire medical file and he determined that her symptoms did not appear to be work-related. While the Commission could have come to other conclusions based on the evidence presented, the appropriate standard of review requires acceptance of the Commission's conclusions if they are supported by substantial evidence. In this case, it appears that a reasonable mind could accept the conclusions of one expert over the other and, therefore, the Commission's findings are affirmed..

There are a variety of ways in which an agency's actions can be arbitrary and capricious. An exclusive list of arbitrary and capricious actions has never been created. However, the Appellant has not attempted to analogize the actions of the Commission or the Division to any previous case law, and has further failed to demonstrate how the absence of "legislation, rules, and regulations" specifically dealing with her condition is otherwise arbitrary and capricious. Because the Appellant's argument is not supported by citation to pertinent authority and merely references her closing argument, but not factual evidence contained in the record, it must fail.

The Commission's conclusion that the Appellant's injury was not causally related to her employment is supported by substantial evidence. Further, the Appellant has not demonstrated that the Commission's decision was otherwise arbitrary and capricious.

Affirmed.

J. Voigt delivered the opinion for the court.

Tuesday, May 23, 2006

A Taxonomy of Legal Blogs

Ian Best, a 3rd year law student from Moritz College of Law at Ohio State University created this taxonomy as part of an independent study project. It is an extensive list of law related blogs. Give it a look when you have a chance. http://3lepiphany.typepad.com/3l_epiphany/2006/03/a_taxonomy_of_l.html

Monday, May 22, 2006

Security, Privacy & Anti-Spyware Help

Here are some publications from the Better Business Bureau and the Anti-Spyware Coalition that provide suggestions and explanations that may help you better secure your home and business networks.

Better Business Bureau Security and Privacy website
Better Business Bureau Security and Privacy - Made Simpler(TM) (pdf)

Anti-Spyware Coalition Tips Documents for Consumers and Corporations

Additionally, Technically Legal, a blog from Michael Trittipo, director of technology for the Minnesota State Bar Association, provides some spyware and security tips that you may find helpful:

Spyware Specifics
Spyware: who uses it?
Keeping E-mail for Clients

Summary 2006 WY 63

[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: State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division v. Madeley

Citation: 2006 WY 63

Docket Number: 05-167

Appeal from the District Court of Teton County, Honorable Nancy J. Guthrie, Judge

Representing Appellant (Objector/Defendant/Respondent): Patrick J. Crank, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Assistant Attorney General

Representing Appellee (Employee/Claimant/Petitioner): Christopher S. Leigh, Jackson, Wyoming

Date of Decision: May 19, 2006

Issues: Whether the hearing examiner's decision that Appellee failed to prove he is entitled to permanent partial disability benefits was arbitrary or capricious. Whether the hearing examiner's decision that Appellee's loss of earning capacity is attributable to a non-work related cardiac condition, and also due to economic factors, is in accordance with law.

Holdings: The Order denying benefits is facially insufficient to permit appellate review. A hearing officer must do more than state an ultimate fact or conclusion; he must thoroughly explain each ultimate fact or conclusion in order for an appellate court to determine upon what basis each ultimate fact or conclusion was reached. In the instant case, the hearing officer failed to provide a sufficient explanation as to why he denied benefits. Therefore, the hearing officer's findings of facts and conclusions are wholly inadequate to permit effective appellate review of the Order denying benefits. The district court had before it insufficient information by which it could review the merits of the hearing officer's determination and, consequently, its decision is reversed. The case is remanded to the district court with directions to vacate the Order denying Appellee benefits for partial permanent disability. The district court is directed to remand the case for supplemental findings of fact and conclusions of law or other proceedings consistent with this opinion.

J. Golden delivered the opinion for the court.

J. Hill filed a dissenting opinion. The findings made by the hearing examiner are, in some respects, in error but are sufficient given the record in this case. The district court was correct in reversing the hearing examiner's order and directing that the Division award benefits. It is the appellant's burden to bring a complete record to this Court. Where a proper record is not provided, an appeal may be dismissed or review may be limited to those issues not requiring inspection of the record. Although that rule is more often applied in appeals coming directly to this Court from a trial court, there is no reason that it should not apply equally in these circumstances where the appeal comes to us from a district court sitting as an intermediate court of appeals. The entire record was before the district court for its consideration. However, when the Division filed its designation of record in this case, it chose to designate mainly those portions of the record which were favorable to its position in this appeal. Resolution of the issues raised in this appeal requires that we have before us the complete agency record. For this reason, the district court's order should be summarily affirmed.

Wednesday, May 17, 2006

Summary 2006 WY 62

[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: Reichert v. State

Citation: 2006 WY 62

Docket Number: 05-71 & 05-172

Appeal from the District Court of Goshen County, Honorable Keith G. Kautz, Judge

Representing Appellant (Defendant): Dion J. Custis, Cheyenne, Wyoming

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

Date of Decision: May 17, 2006

Issues: Whether the appellant's case was prejudiced due to the denial of the motion to withdraw the guilty plea and the motion to recuse the judge. Whether the appellant was denied effective assistance of counsel. Whether the appellant was prejudiced due to the judicial bias caused by a conflict of interest. Whether the appellant was prejudiced due to the judicial bias caused by the political influence regarding his case. Whether the appellant was prejudiced due to the conflict of interest with the prosecuting attorney.

Holdings: A guilty plea is valid only when it represents a voluntary and intelligent choice among the alternative courses of action open to a defendant. Pursuant to W.R.Cr.P. 11(b), the district court was required to inform an appellant of: the nature of and penalties for the charges filed against him; his right to be represented by an attorney, plead not guilty, be tried by a jury, and choose not to testify; his right to plead guilty and waive his right to trial; and the fact that any statements made by him in court under oath could be used against him. Pursuant to W.R.Cr.P. 11(d), the district court is also required to ensure an appellant's plea is voluntary. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement.

In the present action, the record does not indicate Appellant's pleas and the factual basis for them were given other than voluntarily, knowingly and intelligently. The district court fully informed him concerning the maximum penalties for the charged offenses and advised him no one could make him plead a certain way and if anyone tried to do so he should inform the court. He was further specifically advised there were no guarantees about sentencing. Likewise the transcript of the sentencing hearing contains nothing suggesting Appellant wished to withdraw his pleas, was coerced into entering them or entered them without being advised of his rights. The first suggestion the pleas were coerced or made unknowingly and unintelligently came after the district court imposed a more severe sentence than either Appellant or defense counsel expected. Then, represented by substitute counsel, Appellant moved to withdraw his guilty pleas, claiming he did not enter them knowingly and intelligently because defense counsel failed to adequately explain the potential consequences of the pleas. However, the receipt of erroneous advice from counsel concerning the likely sentence is not a sustainable ground for withdrawing a guilty plea where there is no showing of an actual reliance on statements made by the prosecutor or judge in entering the plea. Although defense counsel's early belief that the sentence would likely be probation may have had some influence on Appellant's decision to plead guilty, the record shows Appellant's primary reason for pleading guilty was to avoid other charges. Appellant testified he told the judge at the arraignment his plea was voluntary because he believed if he did not plead guilty the United States would bring additional charges against him.

Thus, the record clearly shows Appellant entered into the plea agreement, having been fully informed of the charges to which he was pleading and the maximum penalties, expressly for the purpose of avoiding additional state and federal charges - charges which had the potential to result in an even lengthier sentence than the one ultimately imposed. The fact that Appellant agreed to plead guilty to avoid more serious charges and in the hope of receiving probation only to have the district court impose a more severe penalty than Appellant and defense counsel expected does not give rise to a "fundamental defect" resulting in "a complete miscarriage of justice" or an "omission inconsistent with the rudimentary demands of fair procedure." Therefore, Appellant has failed to meet his burden of showing the district court abused its discretion when it denied his motion. Appellant has not demonstrated the district court's ruling resulted in manifest injustice. Considering all of the circumstances, the district court's imposition of a more severe penalty than defense counsel believed was appropriate and advised Appellant was likely does not constitute manifest injustice.

At the arraignment in this action, the prosecutor disclosed his relationship with three of the victims and the fact that he believed that under the ethical rules which apply to conflicts, he did not have a conflict. If Appellant had concerns about the prosecutor's relationship with the victims, he did not inform the court at that time or any other time prior to raising the issue in his motion to withdraw his guilty plea. Once he raised the issue, the prosecutor removed himself from the case and a special prosecutor stepped in to represent the State. The special prosecutor represented the State at the hearing on Appellant's motion to withdraw his plea. A review of these same ethical rules (Rules 1.7 & 3.8 of the Wyoming Rules of Professional Conduct and the ABA Standards of Criminal Justice Relating to Prosecution Function Standard 3-1.3) shows that none of these provisions expressly prohibits a prosecutor from representing the State in a case where family members are victims of the offense charged. However ill-considered it might appear on the surface, no manifest injustice resulted from the prosecutor's representation of the State despite his familial relationship with three of the victims. Nothing in the record suggests his relationship with the victims affected him in carrying out his responsibility to minister justice, influenced the outcome of the case or prejudiced Appellant in any way. In addition, Appellant waived any objection to the prosecutor's participation in the case. Thus, the district court did not abuse its discretion in denying the plea withdrawal motion on the basis of prosecutorial bias.

Prejudice involves a prejudgment or forming of an opinion without sufficient knowledge or examination; bias is a leaning of the mind or an inclination toward one person over another. A mere allegation of judicial bias is insufficient to form a basis for disqualification; sufficient facts showing bias must be presented in the affidavit supporting the motion. Appellant was required to submit an affidavit stating sufficient facts to show the existence of judicial bias or prejudice against him. Pursuant to W.R.C.P. 401(b)(2), the judge should have been recused if a reasonable person, assuming the facts in the affidavit were true, could infer that he had a bias or prejudice preventing him from dealing fairly with Appellant. In the present action, the facts presented by the Appellant were not sufficient to cause a reasonable person to infer the judge was biased or prejudiced against Appellant. A judge may not be removed for cause simply on the basis that his brother was, at one time, a customer of the defendant. Likewise there was nothing in the testimony presented at the plea withdrawal hearing from which a reasonable person could infer the judge was biased or prejudiced. Some of Appellant's testimony concerning the judge's bias, such as a statement made by the governor and reported in the newspaper, was hearsay. Evidence presented in support of a motion to disqualify a judge is generally insufficient when it is supported merely by hearsay. Much of the rest of Appellant's testimony was speculation, which is also insufficient to support a motion to disqualify. Simply stated, there was no evidence showing the district court judge prejudged the case or formed an opinion without sufficient knowledge or examination. There likewise was no showing the judge had a leaning of the mind or an inclination toward one person over another. Thus, the district court did not abuse its discretion in denying the plea withdrawal motion.

To warrant reversal on his claim of ineffective assistance of counsel, Appellant must show counsel failed, in light of all circumstances existing at the time of the alleged act or omissions, to employ such judgment or render such assistance as would have been offered by a reasonably competent attorney under like circumstances. When an attorney has allegedly misadvised his client with respect to the entry of a guilty plea, a determination must be made of whether the decision to plead and forego the defense of his case resulted in prejudice to the client. That determination involves two interrelated questions: whether, in the absence of counsel's error, the recommendation of a reasonably competent attorney concerning the plea would differ from that given; and whether, absent the error, the outcome of a trial would have been more advantageous to the client than the result of his plea. The defendant may also establish the necessary prejudice by proof of circumstances indicating that, in deciding whether or not to plead guilty, he placed special emphasis on the challenged aspect of his attorney's advice. He must suggest to the reviewing court a plausible reason why, had his representation been as he claims it should have been, he would have chosen to forsake the benefits of the plea agreement for the risks of trial.

The record shows Appellant has failed to meet his burden of proving either defense counsel's performance was deficient or he suffered prejudice as a result. The record simply does not support Appellant's claim that defense counsel did not properly advise him concerning the effect of a guilty plea and misled him to believe he would receive probation or a shorter prison sentence. Based upon the information he had early on in the case, defense counsel advised Appellant he thought probation was likely. As circumstances changed and it became apparent the amount of money involved was much greater than he had been told and Appellant did not have the ability to pay it back, defense counsel advised Appellant he was concerned jail time was a real possibility. Defense counsel testified he explained the terms of the plea agreement to Appellant and was certain he understood them. He, and the district court, explained the maximum sentences that could be imposed for the crimes committed. Defense counsel testified Appellant knew the prosecutor intended to argue for prison time at sentencing. Defense counsel testified he made no promises to Appellant other than to represent him the best he could. He did not force Appellant to plead guilty, threaten him or promise him he would get probation. He told Appellant his sentence depended in large part on his ability to pay back the money he owed people for their crop. Thus, defense counsel provided the assistance a reasonably competent attorney would have provided under similar, and changing, circumstances. Appellant has failed to carry his burden of demonstrating defense counsel's performance was deficient. Even if the record established defense counsel's performance was deficient, which it does not, Appellant's claim of ineffectiveness would fail. A defendant is not prejudiced by advice which is merely misleading if the trial court, prior to taking his plea, has corrected any misunderstanding engendered by that advice Also, Appellant presents no argument as to how his decision to plead guilty and forego trial prejudiced him. He fails to assert, much less show, how the outcome would have been more advantageous to him had he gone to trial rather than entering a plea. Absent the presentation of any argument on these key issues, Appellant has failed to carry his burden of proving he was prejudiced by counsel's alleged ineffectiveness.

Appellant also contends defense counsel's assistance was ineffective in that he failed to assert the claims of prosecutorial and judicial bias. The record shows defense counsel considered both issues and discussed them with Appellant. Defense counsel testified he believed the prosecutor and the judge were fair and would handle the case in an unbiased manner. Defense counsel testified after discussing the issues with Appellant, he made the tactical decision that Appellant was better off with the assigned prosecutor and judge than he would be asking for a different judge and prosecutor. There is nothing in the record to support the claim that these decisions were deficient. Rather, they were consistent with the tactical decisions of a reasonably competent attorney acting under similar circumstances.

Affirmed.

J. Kite delivered the opinion for the court.

Tuesday, May 16, 2006

Summary 2006 WY 61

Summary of Decision issued May 16, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please 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 using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Perry v. State, ex rel., Wyoming Workers’ Safety and Compensation Division

Citation: 2006 WY 61

Docket Number: 05-54

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

Representing Appellant (Petitioner): Bernard Q. Phelan, Cheyenne, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; and Kristi M. Radosevich, Assistant Attorney General.

Date of Decision: May 16, 2006

Issue: Whether an employee who has deviated from a prescribed safety rule resulting in injury should be denied workers’ compensation benefits.

Holding: In her capacity as a Certified Nurse Assistant (CNA), Appellant was injured while working alone to help a patient, classified as a “two-person lift”, move to a wheelchair. Employer had a written policy which Appellant had acknowledged regarding the lift policy.
Appellant and the Division each presented evidence to OAH. Where both parties have presented evidence, the Court applies the substantial evidence standard to review the agency’s findings of fact. The Court must also examine all the evidence in the record to determine whether the hearing examiner could have reasonably made its finding and order. Agency conclusions of law are reviewed de novo.
The hearing examiner relied on Smith v. Husky Terminal Restaurant, Inc. in concluding that Appellant was not entitled to worker’s compensation benefits. The elements in Smith are: (1) the employer expressly and carefully informs the employee that she must not perform a specific task or tasks while in his employ; (2) the employee knows and understands the specific restriction imposed; (3) the employer has not knowingly continued to accept the benefit of a violation of the restriction by the employee; and (4) the injury for which benefits are claimed arises out of conduct that clearly violates the specific restriction. The factual record supports the hearing examiner’s conclusion that Appellant violated the two-person lift rule and that she was not entitled to benefits under Smith. The Court did not agree that Appellant’s argument that the injury was compensable because she violated a proscribed means or method of performing the ultimate work but that she did not stray from the ultimate work she was hired to perform. The Court stated that Appellant was clearly aware of the rule and knew that she was violating it, doing a prohibited thing and risking termination. The Smith ruling delineates a method for determining the parameters of the work which is covered by worker’s compensation but does not inappropriately incorporate fault principles into the worker’s compensation analysis.

The Court affirmed.

Dissent: C.J. Hill and J. Burke dissented, stating that they felt the Court should consign the rule articulated in Smith to history, or specifically limit its application based on the fact that the rule is now dated and largely discredited. If not, the Justices felt it was readily recognizable that it should not apply to the circumstances in the instant case. The Justices stated that evidence was missing in the case and that the Division’s theory of the case was not supported by substantial evidence in the record. Also, the Division’s argument that the incident at issue was outside the course and scope of Appellant’s employment was invalid. The Justices would have reversed the order of the district court affirming the hearing examiner and would have directed the district court to remand the case to the hearing examiner and the Division with directions that the claim for benefits be paid.

J. Kite delivered the opinion for the court.
C.J., Hill dissents, with J. Burke joining.

Link to the case: http://tinyurl.com/g6r2j .

Friday, May 12, 2006

Summary 2006 WY 60

Summary of Decision issued May 12, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It is given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please 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 using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Granite Springs Retreat Assoc., Inc. v. Manning

Citation: 2006 WY 60

Docket Number: 05-149

Appeal from the District Court of Laramie County, the Honorable Nicholas Kalokathis, Judge.

Representing Petitioner: Julie Nye Tiedeken of Tiedeken & Scoggin, PC, Cheyenne, Wyoming.

Representing Respondents: Arthur L. and Katherine L. Manning, pro se, Cheyenne, Wyoming.

Date of Decision: May 12, 2006

Issue: Whether the circuit court has subject matter jurisdiction to encumber title to real property.

Holding: Granite Springs brought a small claims action in circuit court seeking to collect homeowner’s association dues in the amount of $265.44 from the Mannings. The case began as a simple collection action but evolved into a determination regarding the validity and application of restrictive covenants pertaining to real property.
Jurisdictional questions are reviewed de novo pursuant to the Court’s inherent power and the duty to address jurisdictional defects on appeal. The facts established at the hearing were included in the body of the decision. Granite Springs relied on Wyo. Stat. Ann. § 5-9-128(a)(i) which states that circuit courts have exclusive original civil jurisdiction for an action where the prayer for recovery is an amount not exceeding seven thousand dollars, exclusive of court costs. However, effective March 3, 2004, the legislature revised that provision to read: If it appears from the pleadings or the evidence of either party at the trial of any case in circuit court that the title of boundaries to lands are in question, the judge shall immediately make an entry thereof in the docket, cease all further proceedings and certify to district court of the county a transcript of all entries made in the docket relating to the case in the same manner and within the same time as upon appeal.
A determination of the validity of restrictive covenants calls title into question. The Court stated that covenants place restrictions on an owner’s right to use, control and enjoy their property. At trial, the Mannings claimed that the restrictive covenants did not apply to their tract of land. Their defense raised a question of title. The circuit court was without subject matter jurisdiction to consider the matter and the case should have been certified to district court.

The Court affirmed that portion of the district court’s order setting aside the circuit court’s judgment. The Court remanded the matter to district court for remand to the circuit court. The circuit court shall certify the case to the district court in accordance with the statute.

J. Burke delivered the opinion for the court.

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

Summary 2006 WY 59

Summary of Decision issued May 12, 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. Please 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 using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Phillips v. Toner.

Citation: 2006 WY 59

Docket Number: 05-77

Appeal from the District Court of Albany County, the Honorable Dan Spangler, Judge, Retired.

Representing Appellant: C.M. Aron, of Aron & Hennig, LLP, Laramie, Wyoming.

Representing Appellee: Raymond B. Hunkins and Amanda Hunkins Newton, of Jones, Jones, Vines & Hunkins, Wheatland, Wyoming.

Date of Decision: May 12, 2006

Issue: Whether Dr. Phillips’ claims are barred by collateral estoppel.

Holding: Appellant was hired by Jack Grynberg to provide services as a consulting economist in a Colorado lawsuit. Appellant’s bill for services of $52, 896.00 was disputed. The district court entered summary judgment in favor of Mr. Grynberg. Mr. Toner is a Wyoming attorney who represented Mr. Grynberg in the Colorado litigation. Appellant sued Appellee for payment of the $52,896.00. Appellee filed a motion for summary judgment which was granted by the district court finding there were no genuine issues of material fact and that the claims were barred by the doctrine of collateral estoppel.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the prevailing party is entitled to judgment as a matter of law.
Collateral estoppel bars relitigation og previously litigated issues and involves an analysis of four factors: (1) whether the issue decided in the prior adjudication was identical with theissue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. To determine whether collateral estoppel applies, the Court compared the prior adjudication with the present action. The only apparent difference in both lawsuits related to the named defendant. The Court disagreed that this distinction was critical. Appellant had a fair and full opportunity to litigate all issues regarding the terms of the agreement for which he performed services and whether he was paid for those services in Philips I.
Appellant’s fraud claim received specific comment from the Court. Actions sounding in fraud must be pled with particularity and proved by clear, unequivocal and convincing evidence. Appellant did not allege fraud with particularity nor did he meet his burden of demonstrating genuine issues of material fact by clear, unequivocal and convincing evidence. Summary judgment on the fraud claim was proper even if not barred by collateral estoppel.

The Court affirmed the district court’s Order Granting Summary Judgment.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/foqj6 .

Summary 2006 WY 58

Summary of Decision issued May 12, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It is given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please 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 using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Warnick, Warnick & Warnick Ranches v. Warnick.

Citation: 2006 WY 58

Docket Number: 04-244

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

Representing Appellants: Dennis M. Kirven, of Kirven & Kirven, PC, Buffalo, Wyoming.

Representing Appellee: Charles E. Graves, of Graves, Miller & Kingston, PC, Sheridan, Wyoming; Timothy C. Kingston, of Graves, Miller & Kingston, PC, Cheyenne, Wyoming.

Date of Decision: May 12, 2006

Issue: Whether the District Court abused its discretion in excluding evidence offered by Warnick Ranches regarding the costs of liquidating partnership assets in determining the buy-out price of a dissociated partner under W.S. §17-21-701(b).

Holding: The Court has reviewed this matter previously in Warnick v. Warnick (Warnick I). Generally, this case involves the dissociation of Randall Warnick as a partner of Warnick Ranches as of April 14, 1999 and the amount he should receive for his interest in the partnership.
Evidentiary rulings are left to the sound discretion of the trial court and will not be overturned where the record reveals a legitimate basis for the ruling. This case also involves the application of Wyo. Stat. Ann. § 17-21-701(b) as part of the Wyoming Revised Uniform Partnership Act.
Calculation of the Buyout Price: In Warnick I, the district court was charged with calculating the buyout price for Appellee’s interest in the partnership following a settlement of partnership accounts upon the winding up of the partnership. The buyout price is the net of all known liabilities. The purpose of the remand was for the district court to consider liabilities – partner advances, which had been previously omitted from calculation. Appellant’s argument focused upon the valuation of the partnership’s assets under Wyo. Stat. Ann §17-21-701(b) stating that the district court should have deducted estimated sale expenses of $50,000.
The assets were in fact, not liquidated. Liquidation value is not the amount of the seller’s residual cash following a sale. Considering the language of RUPA § 701(b) as a whole, the Court concluded that “liquidation value” did not have the meaning that Appellant desired. The Court held that under Wyo. Stat. Ann. § 17-21-701(b), purely hypothetical costs of sale are not a required deduction in valuing partnership assets.
Evidentiary ruling: The Court found no abuse of discretion in the district court’s decision to exclude testimony from Appellant’s expert concerning the hypothetical costs of sale having determined that any possible costs of sale associated with selling the assets of the partnership were too speculative and inadmissible. The proffered testimony was not pertinent to the district court’s task of calculating the buyout price of Appellee’s partnership interest.

The Court affirmed the district court’s decision.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/jvd8j .

Thursday, May 11, 2006

Summary 2006 WY 57

Summary of Decision issued May 11, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please 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 using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Cantrell v. Sweetwater County School District No. 2

Citation: 2006 WY 57

Docket Number: 05-215

Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge.

Representing Appellants (Plaintiffs): Richard Honaker of Honaker Law Offices, LC, Rock Springs, Wyoming.

Representing Appellee (Defendant): Ford T. Bussart and William B. Payne of Bussart, West & Tyler, PC, Rock Springs, Wyoming. Argument by Mr. Bussart.

Date of Decision: May 11, 2006

Issue: Whether a verified affidavit, signed under oath by the claimants, satisfies the requirement of Article 16, § 7 of the Wyoming Constitution that claims against governmental entities be “certified to under the penalty of perjury”.

Holding: The parents of a now-ten-year-old boy appeal from the district court’s dismissal of their complaint against a school district alleging injuries suffered by the boy on school property for lack of subject matter jurisdiction. The district court concluded that the procedure of a signed notarized affidavit without the language of “certified to under penalty of perjury” did not give them subject matter jurisdiction in the case. Subject matter jurisdiction and the district court’s interpretation and application of the Wyoming Constitution are questions of law that are reviewed de novo. In construing constitutional provisions, the Court follows the same rules that govern the construction of statutes and are guided by the intent of the drafters. The Court has repeatedly held that Article 16, § 7 applies to claims presented under the Wyoming Governmental Claims Act, Wyo. Stat. Ann. §§ 1-39-101 and that the district court does not have subject matter jurisdiction in the case of a governmental claim that does not meet constitutional requirements. In giving meaning to statutes and constitutional provisions, the Court endeavors to find the reasonable intent of the drafters. If it is acceptable to state that the facts supporting a claim are true, it certainly must be acceptable to swear that those facts are true. The Court concluded that if a governmental claim is supported only by certificate, that certificate must be accompanied by the words “under penalty of perjury” but that a claim may be supported by verified affidavit without inclusion of those words. Compliance exceeding the constitutional language was sufficient.

The Court reversed and remanded.

J. Voigt delivered the opinion for the court.

Link to the case: http://tinyurl.com/l8tma .

Wednesday, May 10, 2006

Summary 2006 WY 56

Summary of Decision issued May 10, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please 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 using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Lawrence v. State Farm Fire and Casualty Co.

Citation: 2006 WY 56

Docket Number: 05-191

Appeal from the District Court of Sheridan County, the Honorable Gary P. Hartman, Judge.

Representing Appellant (Plaintiff): Michael C. Steel of Lonabaugh and Riggs, LLP, Sheridan, Wyoming.

Representing Appellee (Defendant): George E. Powers Jr., of Sundahl, Powers, Kapp & Martin, Cheyenne, Wyoming.

Date of Decision: May 10, 2006

Issue: Whether State Farm breached the subject insurance policy by refusing to defend its insured, Valerie Johnson, against the negligence claim alleged in the underlying action.

Holding: Appellant is the mother and personal representative of Cody Lee Holt who died from injuries suffered in a one-car crash that occurred south of Billings, Montana on July 4, 2003. Valerie Johnson owned the car that was involved in the accident. She gave money for gas to her daughter, D’Andra Amende. There were four teenagers involved in the incident and none held a valid driver’s license. The insurance company which covered the car as well as the insurance company that covered the driver, settled claims filed by Lawrence on behalf of her son’s estate. Lawrence filed an additional claim against Johnson giving notice to State Farm on the theory that Johnson’s act of giving gas money to her daughter was the negligent act that ultimately led to Holt’s death. State Farm informed Lawrence’s attorney that it would not participate in the mediation conference because the policy did not provide coverage for the accident. Johnson and Amende entered into a settlement agreement with Lawrence resolving Lawrence’s wrongful death claims against them. The parties entered into an Assignment of Rights and Claims in which Johnson and Amende confessed judgment in favor of Lawrence in an aggregate amount of $750,000 and Lawrence agreed to not execute on those judgments except against State Farm. The district court entered a partial summary judgment in favor of State Farm and denied Lawrence’s motion for partial summary judgment.
When the Court reviews a summary judgment, they review the same materials as did the district court and follow the same standards which applied to the proceedings below. The propriety of granting a motion for summary judgment depends upon the correctness of the dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. In Matlack, the Court stated that the insurer is obligated to afford a defense as long as the alleged claim rationally falls within the policy coverage. The Court reviewed the language of the policy in question. Next, they examined the complaint to ascertain if any claim alleged was potentially covered under the policy. The Court stated that the negligent act, if any, was Johnson giving her daughter gas money so that she could operate the motor vehicle in question. Hence, Johnson’s acts were inextricably related to the operation of the motor vehicle and within an exception to the insurance coverage at issue. Neither the Court nor the Appellant could cite a case that could be viewed as pertinent authority that supported Appellant’s argument. At oral argument, Appellant cited Oliver and Sarp but the court was not persuaded that they supported Appellant’s position because the use of the car was an essential element in the theory of liability.

The Court held that the district court did not err in granting summary judgment in favor of State Farm. The Court affirmed.

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

Link to the case: http://tinyurl.com/mfmn8 .

Thursday, May 04, 2006

Summary 2006 WY 55

Summary of Decision issued May 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. Please 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 using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Wyoming Downs Rodeo Events, LLC and Wyoming Horseracing Inc. v. State; and Jon R. Forwood, District Attorney, First Judicial District, State of Wyoming

Citation: 2006 WY 55

Docket Number: 05-201

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

Representing Appellants (Plaintiffs): Bruce A. Salzburg of Freudenthal, Salzburg & Bonds, PC, Cheyenne, Wyoming.

Representing Appellees (Defendants): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Senior Assistant Attorney General. Argument by Mr. Armitage.

Date of Decision: May 4, 2006

Issue: Whether “Instant Racing” electronic gambling devices are expressly authorized by Wyoming statutes. Whether “Instant Racing” electronic gambling devices are prohibited by Wyoming law.

Holding: Wyoming Downs filed an action for declaratory judgment, seeking the court’s declaration that Instant Racing is lawful in Wyoming. Wyoming Downs sought a preliminary injunction and a permanent injunction. The district court denied injunctive relief in both instances. Wyoming statutes provide that both “gambling” and “professional gambling” are crimes. Wyo. Stat. Ann. § 6-7-102. Gambling is defined by Wyo. Stat. Ann. § 6-7-101(a)(iii) and “gambling device” is defined by Wyo. Stat. Ann. § 6-7-101(a)(iv). “Professional gambling” is defined by Wyo. Stat. Ann. § 6-7-101(viii). The Court reviewed the district court’s record and their findings and followed the same standards which applied to the proceedings. Granting a motion for summary judgment depends on the correctness of the dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. The Court reviews the record from the vantage point most favorable to the party who opposed the motion, affording to that party the benefit of all favorable inferences that fairly may be drawn from the record. Questions of law are reviewed de novo. Based upon the same reasoning that the Court employed in the Fraternal Order of Eagles case, they concluded that the district court correctly construed and applied the applicable statutes and that it did not err as a matter of law in applying the statutes as it did. The description of the Instant Racing gaming device found in the patent documents makes it unmistakable that it is a “gambling device” as defined by Wyoming law. The description provided by the Wyoming Down’s affidavit and the photographs depicting the gaming device which were put into evidence, corroborate the inescapable conclusion that the terminals were gambling devices that the Wyoming State Pari-mutuel Commission could not authorize via the statutory powers granted to it. An agency may not rewrite a statute through its rulemaking power.

The Court affirmed.

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

Link to the case: http://tinyurl.com/q7b4q .

Summary 2006 WY 54

Summary of Decision issued May 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. Please 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 using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: In the Matter of Worker’s Compensation Claim of Bobby Joe Pickens: State, ex rel, Workers’ Safety and Compensation Division v. Pickens

Citation: 2006 WY 54

Docket Number: 05-162

Appeal from the District Court of Big Horn County, the Honorable H. Hunter Patrick, Judge.

Representing Appellant (Respondent): Patrick J. Crank, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; and Kristi M. Radosevich, Assistant Attorney General.

Representing Appellee (Petitioner): Edward G. Luhm of Scott, Shelledy and Luhm, PC, Worland, Wyoming.

Date of Decision: May 4, 2006

Issue: Whether the Medical Commission erred when it found that the claimant did not qualify for permanent total disability benefits under the odd lot doctrine.

Holding: In September 1990, claimant was injured at work when a loader he was operating slid down a ramp and collided with a pile of material at the base of the ramp. He did not report the injury to the Division. In September 1991, claimant was injured when another employee struck him from behind hard enough “to be knocked off balance”. This injury was reported. He was assigned a 9% permanent whole body impairment based on loss of motion as well as a 36% loss of earnings award. From 1992 until claimant filed the instant claim, he was examined by a variety of doctors and rehab specialists who attributed his symptoms to various disorders. The claimant’s application for permanent total disability was denied by the Division on July 3, 2002. Claimant later argued before the Commission that he qualified for permanent total disability under the odd lot doctrine and was denied.
The Court reviews administrative action as if the appeal had come directly from the administrative agency. The claimant in a workers’ compensation case bears the burden of proving each element of the claim by a preponderance of the evidence. When both parties admit evidence, the Court applies the substantial evidence test. Further, the Court applies the arbitrary and capricious standard of review as a “safety net” to catch agency actions that violate the Wyoming Administrative Procedures Act. Conclusions of law are reviewed de novo.
Under the odd lot doctrine, a claimant who is not actually permanently totally disabled is able to receive permanent total disability benefits because the claimant’s disability and other factors make the claimant de facto unemployable. The doctrine shifts the burden such that the claimant is required to make a prima facie showing that (1) he is no longer capable of working at the job in which he was employed at the time of the injury and (2) the degree of obvious physical impairment, coupled with other facts, such as mental capacity, education, training or age qualify him for odd lot treatment. The Court had to determine whether substantial evidence supported the Commission’s finding that subsequent injuries, medical and mental conditions caused the claimant’s inability to work or whether his current disability is work-related. Then, considering those facts, the question is whether the claimant is eligible for odd lot treatment as a matter of law. The Court reviewed the record and found that the Commission’s findings of fact were supported by substantial evidence. The Court agreed with the Division that the Commission correctly applied the odd lot doctrine and the district court erred in reversing the Commission’s denial of benefits. The district court combined the claimant’s two burdens and found that the claimant had proven he was unable to perform his previous employment through his original workplace injury and his unrelated other injuries and medical conditions. The Court stated this was error. The Court noted that adopting the district court’s reasoning would impermissibly expand permanent total disability benefit awards under the Worker’s Compensation Act. In the context of the odd lot doctrine, a causal connection must exist between the compensable workplace injury and the claimant’s inability to work at the job in which he was employed at the time of injury. The Commission found that the claimant’s current inability to work in his previous employment is a consequence of non-work-related injuries and ailments. Because the claimant failed to meet his initial burden of proving that his work-related injury disabled him from continuing in his previous employment, his claim for benefits under the odd lot doctrine was properly denied by the Commission. The claimant failed to prove his work-related injury barred him from working in his previous employment. As a result, the Commission correctly found that he was not eligible for permanent total disability benefits under the odd lots doctrine and the district court’s reversal of the Commission was error.

The Court reversed and reinstated the Order of the Commission denying benefits.

J. Voigt delivered the opinion for the court.

Link to the case: http://tinyurl.com/nvzp9 .

Wednesday, May 03, 2006

Summary 2006 WY 53

Summary of Decision issued May 3, 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. Please 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 using the Universal Citation form, please contact the Wyoming State Law Library and we will provide assistance.]

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

Case Name: Board of Professional Responsibility, WY State Bar v. Timothy John Blatt

Citation: 2006 WY 53

Docket Number: D-06-1

Order Suspending Attorney From the Practice of Law

The matter came before the Court upon a “Report and Recommendation for Reciprocal Discipline,” filed on February 3, 2006, by the Board of Professional Responsibility for the Wyoming State Bar. After a careful review of the record the Court found that the Report and Recommendation for Reciprocal Discipline should be approved, confirmed and adopted by the Court; and that the Respondent Timothy John Blatt should be suspended from the practice of law for a period of thirty (30) days.

C.J. Hill.

Link to the order: http://tinyurl.com/jv7sl .

The full record with attachments will be available in the database at a later date.

Legislative Histories Online

Rick McKinney, Assistant Law Librarian for the Federal Reserve Board Law Library announced last week that the Law Librarians' Society of Washington, DC, Inc. has made available a new site on its Legislative Source Book entitled "Legislative Histories of Selected U.S. Laws in Electronic Format"(http://www.llsdc.org/sourcebook/leg-hist.htm). The selected laws are organized in alphabetical and public law number order and primarily come from (and are linked to) the Department of Commerce (DoC) Law Library online catalog (pin is any characters you choose). The site also contains many explanatory notes while each law contains links to related bill information on the Library of Congress (LoC) THOMAS site, to a current related U.S. Code site, and to a current related C.F.R. site. The public law legislative histories include Antidumping Act of 1921, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, theCopyright Law Revision of 1976, the Export Administration acts of 1965,1972 and 1979, the Government in the Sunshine Act of 1976, and other laws. In the future it is hoped that other agencies and firms will add to this collection.

Monday, May 01, 2006

Passwords

It's Monday morning and you've barely managed to type in your network password while trying to wake up with hot coffee that just burned your tongue. And when you think you've managed to not mispell the password (the imaginative password of "princess5" in honor of your bulldog), a window pops up telling you that it's time again to change your password. You dutifully type in "princess6" and try to get on with your Monday.

According to David Utter of SecurityProNews.com, the days of needing to change passwords frequently should be over. In his article, Password Change Myth Discounted (http://www.securitypronews.com/insiderreports/insider/spn-49-20060424PasswordChangeMythDiscounted.html), he states that it's better policy now to create one secure password (i.e., not your high school nickname) and stick with it.

So, armed with this suggestion, here is a article from Sarah Scalet at CSOonline.com on how to create that unguessable password (or code) and still be able to remember it: http://csoonline.com/read/120105/ht_passwords.html. It may take a little more thought now, but just think how much more secure personalized gibberish is than "princess5."

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