Friday, April 28, 2006

The Joy of Law Libraries

MyShingle.com posted a list of eight excellent (am I biased??) reasons for a solo practitioner to remember to use the law library: http://www.myshingle.com/my_shingle/2006/04/more_on_the_joy.html .

Tuesday, April 25, 2006

Naked Conversations

Got your attention with that heading didn’t I! It’s the book I’ve been reading by Robert Scoble and Shel Israel about everything blog. A few things I learned:

  • Blogs can be public or private – available on the web for one and all to read or used internally as a collaborative work tool behind the protection of a firewall
  • For a small business, blogs are the best opportunity to talk and listen with people you would not otherwise meet
  • Blogs are conversations – so even if you read more than “talk” (or post), you’ll benefit
  • Blogs have made it a smaller, faster world – now there is only a 4 hour window to respond to a major news story whereas previously, there was a week
  • Blogging is thinking out loud – which leads to humility and a greater humanization of communication

Success tips for blogging:

Talk, don’t sell because people visit blogs to see what others care about and know.
Post often and be interesting even if the post is only a link to another blog in the category in which you are trying to establish your own authority.
Write on issues you know and care about and your blog will be passionate and show authority.
Blogging saves money but costs time, so make an investment of time and your company will benefit from blog coverage in a way that other public relations tactics cannot attain.
You get smarter by listening to what others tell you because your readers (customers) are collectively smarter than you.

The authors’ one simple rule: Be real. Keep your conversations naked; let people know who you are and where you are coming from.

Blogs the authors love (because they are doing it right):
http://designsponge.blogspot.com
http://www.englishcut.com
http://www.buzzmachine.com
http://www.misbehaving.net/

My blog experience this morning: I visited Ernie the Attorney’s blog www.ernietheattorney.net and happened to scan his post about the ABA Tech Show in Chicago which led me to a link to I Heart Tech blog http://ihearttech.typepad.com/ . A post about changing the size of rows and columns in Outlook to ease eye strain caught my attention. Simple, practical ideas are one of the reasons I like blogs.

Google Search Tips

Do you use Google to search the Internet? If so, you might find this handout helpful. The Google Librarian Center has put together a poster containing search tips for Google. We often use these techniques when searching Google (with happy results). Some of these techniques transfer to other search engines as well (using quotes, excluding words, boolean search term "OR").

Happy searching! And, as always, let us know if you have any questions.

http://www.google.com/librariancenter/librarian_download.html

Monday, April 24, 2006

New Email Addresses

Friends and Colleagues,

The email addresses for the Wyoming State Law Library and staff have changed. We ask you to please update your favorites, address books and directories.

Wyoming State Law Library: library@courts.state.wy.us
Kathy Carlson: kcarlson@courts.state.wy.us
Meg Martin: mmartin@courts.state.wy.us
Katie Jones: kjones@courts.state.wy.us
Amber Bell: abell@courts.state.wy.us

Please let us know if you have any questions. Thank you!

Katie Jones
Electronic Services Librarian
Wyoming State Law Library
2301 Capitol Avenue
Cheyenne, WY 82002
307-777-6487 / Fax: 307-777-7240
kjones@courts.state.wy.us
http://statelawlibrary.state.wy.us/

Thursday, April 20, 2006

Summary 2006 WY 52

Summary of Decision issued April 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. 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: Rawlinson v. Wallerich

Citation: 2006 WY 52

Docket Number: 05-166

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

Representing Appellant (Plaintiff): Bernard Q. Phelan, Phelan Law Offices, Cheyenne, Wyoming.

Representing Appellees (Defendants): Blair J. Trautwein, Wick, Bramer, Ukasick & Trautwein, LLC, Ft. Collins, Colorado.

Date of Decision: April 20, 2006

Issue: Whether Ms. Rawlinson’s action to compel arbitration is barred by the doctrine of res judicata.

Holding: The appeal involves a dispute that arose from Appellant’s purchase of a house from Appellees in 1994. Appellant noticed water in her crawl space and subsequently that the property flooded every spring. Appellant filed suit in 1998 against Appellees and other named defendants. Appellees moved to compel binding arbitration in accordance with the terms of the sales contract. The parties sought a voluntary dismissal of the claims against Appellees by filing a stipulation. The district court entered an Order of Dismissal of Defendants Wallerich on April 14, 2000. It contained language purporting to dismiss the claims with prejudice. After the conclusion of the litigation against the remaining defendants, Appellant filed a motion to compel arbitration in the original action against Appellees. The district court denied the motion based upon the Order of Dismissal previously entered. Appellant next filed a Complaint for Arbitration against Appellees. The district court found the matter was barred pursuant to res judicata.
This appeal involves the interpretation and application of W.R.C.P. 41(a)(1) which presents a question of law the Court reviews de novo. The Court looked at the procedural history of the case. The character of the dismissal is important because a dismissal with prejudice operates as an adjudication on the merits and precludes subsequent action. There was a discrepancy between the stipulation entered into by Appellees and Appellant and the order of dismissal. Stipulations take effect when filed and do not require an order of the court. In the instant case, the parties requested that an order be entered, but only to the extent that it approved their stipulation. There was no request that the court retain jurisdiction, therefore the Court concluded that the order was superfluous because it was entered after Appellees were dismissed from the action by the filing of the stipulation. The Court then looked to the terms of the stipulation to answer whether the dismissal was with or without prejudice. The stipulation was silent in this regard and as a result, the rule requires the dismissal be without prejudice. Appellant’s claim for arbitration has never been adjudicated.

The Court reversed and remanded the case.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/mj7g2 .

Open Source Software

What could you do with an extra few hundred dollars? What if you didn’t have to buy or upgrade to a new expensive software package or networking system? Consider using open source software and you can use your extra money to take your favorite law librarian out to lunch—or go golfing, whichever comes first!

Open source software (OSS) refers to software that has been made available not only for (most often free) use, but with its source code—the actual computer code written by the programmers—fully intact, enabling anyone with the knowledge and desire to study, change and improve the design (http://en.wikipedia.org/wiki/Open-source_software). There are hundreds of software options provided as open source software (see this list of open source software packages provided by Wikipedia for some ideas: http://en.wikipedia.org/wiki/List_of_open_source_software_packages). I would like to point you to a couple of particularly popular programs for this post.

Before we get to that point, though, let me dispense with one of the myths involving OSS. There are often arguments against OSS with regard to customer support, security and reliability. In actuality, OSS programs are frequently more robust and reliable than proprietary software. If you run into a quandary, sometimes you can contact a developer directly through email. And even if one of the main developers is unavailable, many of these projects have large communities providing real-world feedback, revised code, and advice for users. As pointed out by one developer, “having such access is extremely valuable, especially if it means bypassing the "user support" droid in Bangalore who knows less than I do about the product and is reading from a script” (http://www.neilgunton.com/open_source_pros_cons/).

So, how can OSS help you? Well, the knowledge that you don’t have to be an ├╝ber-geek to use most of this software is a good thing. Plus, software that has been around for a while and gained a large following is usually compatible with Windows, Macs or Linux, older and newer. OpenOffice.org (http://www.openoffice.org/) is one such program. This office suite contains a free set of products that are compatible with many other office suites, including Microsoft Office: Writer (word processor), Calc (spreadsheets), Impress (presentations), Draw (graphics), and Base (database).

If you already have an office suite, you can consider another helpful OSS tool to create PDF files—PDFCreator (http://sourceforge.net/projects/pdfcreator/). PDFCreator works like a printer and creates PDFs from any Windows program.

Another very popular software program is the browser created by Mozilla called Firefox (http://www.mozilla.com/firefox/). I suggest retaining Internet Explorer as there are always sites that will view better in one browser or another, especially if they haven’t been coded to standards. Still, Firefox has become so popular that even the new Internet Explorer 7 browser (currently in beta-testing - http://www.microsoft.com/windows/ie/ie7/ie7betaredirect.mspx) has included many of the options now in Firefox (tabbed browsing, built-in search tools, integrated RSS capabilities, better printing options and more).

The above description of OSS and software suggestions are just a microscopic speck of the magnificent world of OSS. If you would like some further resources or have any questions, please feel free to contact Katie Jones (kjones2@state.wy.us – (307) 777-7509).

Summary 2006 WY 51

Summary of Decision issued April 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. 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. Jo Ann Fulton

Citation: 2006 WY 51

Docket Number: D-06-3

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 March 17, 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 should be approved, confirmed and adopted by the Court; and that the Respondent Jo Ann Fulton should be suspended from the practice of law for a period of three years.

C.J. Hill.

Link to the order: http://tinyurl.com/lc3hd .
The full record with attachments will be available in the database at a later date.

Summary 2006 WY 50

Summary of Decision issued April 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. 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: Payne v. Payne

Citation: 2006 WY 50

Docket Number: 05-181

Appeals from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge.

Representing Appellant (Defendant): Carol Serelson, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Bert T. Ahlstrom, Jr., Cheyenne, Wyoming.

Date of Decision: April 20, 2006

Issue: Mother takes issue with the district court’s determination that she waived her claim for reimbursement by not submitting the medical bills to Father in a timely manner.

Holding: The Paynes were married in 1981 and produced two children. They divorced in 1998 and the decree awarded Mother primary custody. Father was ordered to pay, among other things, one-half of any uninsured medical, dental and eye care expenses incurred by the children. Mother petitioned the court to order Father to pay.
The Court reviewed the record. The district court found that Mother had waived her claim to reimbursement by not submitting the medical bills in a timely manner. The district court also found that she failed to present sufficient evidence during the hearing to support the amount she claimed was due. Because the denial of Mother’s claim is supported on other grounds, reversal of the district court’s waiver ruling would have no effect on the outcome of the appeal. The Court also noted that even if Mother had appealed the district court’s sufficiency of the evidence ruling, she failed to provide the Court with an adequate record to permit rational review.

The Court affirmed.

J. Golden delivered the opinion for the court.

Link to the case: http://tinyurl.com/rv3v6 .

Summary 2006 WY 49

Summary of Decision issued April 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. 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 the Adoption of: ADA and SSA, CJ v. SA

Citation: 2006 WY 49

Docket Number: C-05-12

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

Representing Appellant (Petitioner): Ronald G. Pretty, Cheyenne, Wyoming.

Representing Appellee (Respondent): No appearance.

Date of Decision: April 20, 2006

Issue: Whether the court erred when it did not terminate the Respondent’s parental rights. Whether the court erred when it did not take judicial notice of the previous court’s findings.

Holding: The children’s mother and father divorced in 2001 and the divorce decree awarded custody of the children to mother and ordered father to pay support. Mother married stepfather in 2003 and he assumed responsibility for supporting the children. Father did not comply with the child support order and in 2004 stepfather filed a petition to adopt the children without Father’s consent.
The Court reviews the district court’s decision on a petition to adopt by applying the abuse of discretion standard. A petition for adoption without parental consent may be granted if the elements in Wyo. Stat. Ann § 1-22-110 are satisfied. The right to associate with one’s own children is a fundamental right protected by the Wyoming and United States Constitutions and is therefore strictly construed. The party requesting the adoption bears the burden of proving the existence of at least of one of the statutory factors by clear and convincing evidence. The Court focused on the willfulness element and not on the amount of support that father did or did not pay because the district court’s dispositive finding did not involve a mathematical calculation. The willfulness requirement must be satisfied in order to grant an adoption under either subsection (ix) or (iv). Stepfather argued that under the principle of res judicata, father was precluded from claiming his failure to pay was not willful because he had previously been found in contempt and incarcerated for failing to comply. The argument does not include legal analysis or citation to legal authority and the record does not include the contempt orders so the Court refused to consider whether father was precluded by the earlier contempt orders from arguing his conduct was not willful. In TLC, the Court stated that “incarceration, standing alone, does not provide the direct intent necessary to constitute willful failure to pay.” The focus must remain on intent and ability to pay. The determination of whether father’s failure to pay child support was willful involves disputed factual issues and was therefore within the district court’s province. The Court reviewed the record and found it was sufficient to support the district court’s ultimate conclusion that stepfather had not proven by clear and convincing evidence that father’s failure to pay was willful.

The Court affirmed.

J. Kite delivered the opinion for the court.

Link to the case: http://tinyurl.com/ok83b .

Wednesday, April 19, 2006

Summary 2006 WY 48

Summary of Decision issued April 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. 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: Breitenstine v. Breitenstine

Citation: 2006 WY 48

Docket Number: 05-186

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

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

Representing Appellee (Plaintiff): W. Keith Goody of Alpine, Wyoming.

Date of Decision: April 19, 2006

Issue: Whether the district court had the authority, pursuant to Wyo. Stat. Ann. § 20-2-111, to award Appellee attorney’s fees and costs in the instant case. Whether Appellant has established that the district court has abused its discretion in finding such fees and costs were reasonable.

Holding: The parties were divorced in February 1999. The district court entered findings of fact, conclusions of law and a judgment. Appellant has not complied with the judgment and the Court was aware of other fraudulent behavior as well. Appellant’s behavior led to Appellee’s efforts to enforce the district court’s judgment which incurred the fees and costs in question.
The Court reviews a question of law de novo. The Court has interpreted the language of Wyo. Stat. Ann. § 20-2-111 “as authorizing reimbursement of a party’s attorney’s fees in proceedings to modify or enforce divorce decrees, as well as in original actions for divorce.” The Court stated that the record included accounting and itemized legal bills that were submitted to the district court that Appellee incurred while attempting to enforce the judgment against Appellant. The Court concluded that the above statute as previously interpreted or applied, authorized the district court to award Appellee fees and costs for this purpose. The Court reiterated that the determination of reasonableness is within the exercised discretion of the trial court. The burden was on Appellant to establish an abuse of discretion, and whether the court could reasonably conclude as it did. Appellant did not substantively analyze the factors listed in Wyo. Stat. Ann § 1-14-126 nor did he present a sufficiently cogent appellate argument to establish abuse of discretion.

The decree of the district court was affirmed.

J. Voigt delivered the opinion for the court.

Link to the case: http://tinyurl.com/jl45h .

Summary 2006 WY 47

Summary of Decision issued April 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. 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: Follett v. State

Citation: 2006 WY 47

Docket Number: 04-133, 05-63

Appeals from the District Court of Sweetwater County, the Honorable Nena James, Judge.

Representing Appellant (Defendant): Mike Cornia, Evanston, Wyoming.

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

Date of Decision: April 19, 2006

Issues: Whether the court properly accepted appellant’s guilty plea and whether it abused its discretion in denying appellant’s subsequent motion to withdraw the plea after sentencing.

Holdings: Appellant appeals his sentence as a result of pleading guilty in violation of Wyo. Stat. Ann. §§ 6-2-304(a)(i) and 6-2-306(a)(iii). He is also appealing his motion to withdraw his guilty plea which was denied by the district court.
Competency Procedures: Appellant was charged with one count of third degree sexual assault. He filed a motion for a mental evaluation and stay of the proceedings. The circuit court granted the defense motion. A mental health professional evaluated Appellant and indicated in her report that she had no concerns about Appellant standing trial. The report also concluded Appellant did not meet the criteria for a defense of not guilty on the basis of mental defect because he admitted he knew what he was doing was wrong when he committed the offense. Wyo. Stat. Ann. § 7-11-301 et. seq. sets forth the requirements for determining whether a criminal defendant is competent to stand trial. The content of the standard of competency is a question of law which the Court reviews de novo. The substantial evidence standard of review governs the determination of a defendant’s competency as fairly supported by the record.
At his arraignment, Appellant entered pleas of not guilty, not guilty by reason of mental illness and not triable by reason of mental deficiency. Appellant and the State did not object to the report by the mental health professional nor did they request a second evaluation. Thus, the results of the first evaluation did not trigger additional obligations. The clear language of Wyo. Stat. Ann § 7-11-304(d) allowed the court to rely on the initial examination, so long as it did not deem another examination was necessary. It is good practice to make an express finding of competency but it is not erroneous to fail to do so. The Court stated that because Appellant underwent a mental evaluation and there was no indication his mental health changed after the evaluation, the case was substantively different from deShazer. The Court concluded the district court complied with the mental examination requirements set out in the statutes and Appellant’s due process rights were not violated.
Motion to Withdraw Guilty Plea: W.R.Cr.P. 32(d) sets out the standards for withdrawal of a guilty plea. The standard for withdrawing a plea of guilty after sentencing requires the defendant to show “manifest injustice.” The party seeking to withdraw his plea bears the burden. The district court has discretion in determining whether a party has proved manifest injustice. As the United States Supreme Court decided in Godinez, the knowing and voluntary requirement for a guilty plea is distinct from a finding the defendant is competent. W.R.Cr.P. 11 sets forth the requirements which must be met to ensure a defendant’s guilty plea is voluntary and knowing and the district court must follow the dictates. The Court stated, after a review of the record, that the district court complied with the requirements of Rule 11. Therefore, Appellant’s contention was unfounded and the district court did not abuse its discretion when it denied his motion to withdraw his guilty plea.

The Court affirmed in both appeals.

J. Kite delivered the opinion for the court.

Link to the case: http://tinyurl.com/jv7y8 .

Summary 2006 WY 46

Summary of Decision issued April 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: Finley v. State of Wyoming, ex. rel., Wyoming Workers’ Safety and Compensation Division

Citation: 2006 WY 46

Docket Number: 05-101

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

Representing Appellant (Petitioner/Employee-Claimant): Dion J. Custis, Cheyenne, Wyoming

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

Date of Decision: April 18, 2006

Issues: Whether the district court erred as a matter of law in determining that Mr. Finley was not eligible for permanent partial disability benefits, and past and future medical expenses pursuant to § 27-14-405 and § 27-14-401, because he has not met his burden of proof to show that treatment was the result of his work-related injury.


Holdings: An employee-claimant in a worker’s compensation case has the burden to prove all the statutory elements which comprise a compensable injury by a preponderance of the evidence. This includes establishing the cause of the condition for which compensation is claimed and proving that the injury arose out of and in the course of employment. An injury arises “out of the employment” when a causal connection exists between the injury and the conditions under which the work is required to be performed. An injury is not compensable if it cannot fairly be traced to the employment as a contributing cause and if it comes from a hazard that the employee would have been equally exposed to outside of the employment. In the present action, Appellant’s case that he suffered a compensable injury rests entirely upon the fact that the injury occurred while he was at work. Presence on an employer’s premises is insufficient by itself to establish the requisite nexus between the injury and employment. A causal nexus between an employee’s injury and his employment should not be conclusively established based solely upon the fact that the injury occurred on the employer’s premises. The sum total of Appellant’s evidence is that he was at work, suffered some sort of seizure or blackout, and fell striking his head on the ground. He makes no argument, and a review of the record discloses no evidence, that any condition of his employment was the cause of his injury. In the absence of such evidence, Appellant has failed to establish that his injury “arose out of” his employment. Accordingly, the hearing examiner correctly concluded that Appellant had failed to carry his burden and establish that he suffered a compensable injury.

The district court order affirming the hearing examiner’s denial of benefits is affirmed.


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

Friday, April 14, 2006

Citation to Unpublished Opinions

The Supreme Court on Wednesday adopted a historic rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year. The new rule takes effect unless Congress countermands it before Dec. 1. See the article from Law.com at: http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1144845716431 .

Thursday, April 13, 2006

Summary 2006 WY 45

Summary of Decision issued April 13, 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 from this, or any future opinion 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 County Commissioners of Teton County, WY v. Crow; Moeller and Southpac Trust Int’l; and Overton

Citation: 2006 WY 45

Docket Number: 05-111 & 05-112

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

Representing Appellant (Plaintiff): James L. Radda, Deputy County Attorney, Jackson, Wyoming.

Representing Appellees (Defendants): Bradford S. Mead and Katherine L. Mead of Mead & Mead, Jackson, Wyoming, and Tim Newcomb of Grant & Newcomb, Laramie, Wyoming. Argument by Ms. Mead.

Date of Decision: April 13, 2006

Issues: Teton County: Whether the Court erred in not ordering abatement as requested by the County in an enforcement action brought pursuant to Wyo. Stat. Ann. § 18-5-205. Whether the district court abused its limited discretion in not ordering the abatement requested by the County in an enforcement action brought pursuant to the above statute. Whether the district court’s findings that the parties had agreed and stipulated that the applicable period for the imposition of any fines was from 2/15/199 to 9/15/1999 inclusive, clearly erroneous. Whether the district court erred in both the original Judgment and the Corrected and Amended Judgment in not imposing a fine against Crow for each day’s continuation of his violation of Section 2450.
Crow: Whether the Court should divest the district court in this and every other abatement case of its traditional prerogative in fashioning and enforcing an equitable remedy. Whether the Court should substitute its judgment for that of the district court. Whether the Court should substitute its judgment for the district court about an appropriate fine for a violation of County regulations.

Holding: Crow appeared through counsel at a meeting of the Teton County Board of County Commissioners to request permission to construct a house with 12,000 square feet of habitable space. He was advised to get a Plan Amendment or Variance. The record does not show that Crow sought a plan amendment or variance. Crow obtained a building permit to construct a house of 8,000 habitable square feet. Shortly after construction and final inspection and approval by Teton County, Crow appears to have added 3,000 square feet of living space. The remodeling work was done without a building permit.
The issues in the instant case are governed by statutes that were applied by the district court including: Wyo. Stat. Ann § 18-5-204, Wyo. Stat. Ann. § 18-5-205 and Wyo. Stat. Ann. § 18-5-206. The Court’s objective with respect to enforcement of the abatement statute was to ascertain whether the district court abused its discretion by its failure to require abatement. Judicial discretion means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.
Abatement: Teton County is authorized to enforce applicable regulations. They sought to enforce its (Land Development Regulations) LDRs by means of abatement of all additions in violation of the LDRs. The district court was correct when it determined that it had the authority to order abatement however Teton County need not have made a showing of irreparable injury. The district court is required to make specific findings balancing the equities. Then the district court may ascertain if its equitable power to deny an injunction or any other enforcement mechanism is appropriate under the totality of the circumstances.
Fines: The district court imposed a fine on Crow for 242 days and it is evident that his violation of that regulation continued for a longer time than 242 days. Wyo. Stat. Ann. §§ 18-5-204 and 18-5-206 make imposition of a fine mandatory for each day a violation continues.

The Judgment of the district court was reversed and remanded.

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

Link to the case: http://tinyurl.com/g22qe .

Wednesday, April 12, 2006

Summary 2006 WY 44

Summary of Decision issued April 12, 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 a 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 assistance.]

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

Case Name: Thunder Basin Coal Co. v. Campbell County, WY, Assessor

Citation: 2006 WY 44

Docket Number: 05-117, 05-118 and 05-119

Appeal from the District Court of Campbell County, The Honorable Dan R. Price, II, Judge (05-117) and The Honorable John R. Perry, Judge (05-118 and 05-119)

Representing Appellant (Petitioner): Lawrence J. Wolfe of Holland & Hart, LLP, Cheyenne, Wyoming.

Representing Appellee (Respondent): Carol Seeger, Deputy Campbell County Attorney, Gillette, Wyoming.

Date of Decision: April 12, 2006

Issue: Tax cases are complex therefore I have included the issues and only the briefest summary. Please read the full decision at the link provided below.

In Case No. 05-117, Thunder Basin presented the following issues for review: In determining the value of personal property and improvements to real property, the County Assessor is required by Department of Revenue rules to account for all three forms of depreciation: physical depreciation, functional obsolescence and economic obsolescence. Campbell County’s Assessor completely ignored economic obsolescence in arriving at the value of the property of the Black Thunder Mine for tax year 2001. The State Board’s decision affirming the County Board and Assessor is erroneous and must be reversed. Campbell County’s Appraiser treated all property at both mines as new on June 1, 1998, the date Arch acquired TBCC from ARCO. This ignored the physical depreciation of the property and is not in accordance with generally accepted appraisal techniques. The State Board decision failed to correct this appraisal defect, which constitutes appropriate grounds to reverse the State Board’s ruling. The State Board and County Board decisions are fatally flawed as they do not contain sufficiently detailed findings of fact and conclusions of law to adequately explain their decision regarding economic obsolescence.
The County Assessor articulated the issue in Case No. 05-117 as follows: Whether the decision of the Board affirming the 2001 assessed value of petitioner’s personal property established by the Campbell County Assessor was (a) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (b) contrary to constitutional right, power, privilege or immunity; (c) in excess of statutory jurisdiction or authority; (d) without observance of procedures required by law; or (e) unsupported by substantial evidence.
In Case No. 05-118, Thunder Basin posed the following issues on appeal: Is the Campbell County Board of Equalization’s decision fatally flawed because it failed to set forth the rationale for its decision? Did the State Board of Equalization exceed its authority when it acted as an expert appraiser, thereby poisoning further review by the Campbell County Board of Equalization? Are the Campbell County Board of Equalization’s findings of fact regarding the life of the facility contrary to substantial evidence? Is the Campbell County Assessor’s determination of physical depreciation, which has the effect of treating the property as new in 1998, contrary to appraisal practice and the Department of Revenue’s instructions? Whether the appraisal judgments of the Campbell County Board of Equalization and State Board of Equalization, particularly as to economic obsolescence, are wrong, contrary to substantial evidence and arbitrary and capricious? Whether the decisions of the Campbell County Board of Equalization and State Board of Equalization violate Wyoming Constitution Article 15, § 11 because the fair market value of the property was not determined using a rational method, equally applied, that results in essential fairness?
In Case No. 05-119, Thunder Basin’s issues are similar to those in Case No. 05-118: A.) Is the Campbell County Board of Equalization’s decision fatally flawed because it failed to set forth the rationale for its decision? B.) Is the Campbell County Assessor’s determination of physical depreciation, which has the effect of treating the property as new in 1998, contrary to appraisal practice and the Department of Revenue’s instructions? C.) Whether the appraisal judgments of the Campbell County Board of Equalization and State Board of Equalization, particularly as to economic obsolescence, are wrong, contrary to substantial evidence and arbitrary and capricious? D.) Whether the decisions of the Campbell County Board of Equalization and State Board of Equalization violate Wyoming Constitution Article 15, § 11 because the FMV of the property was not determined using a rational method, equally applied, that results in essential fairness?
The County Assessor does not provide a separate statement of the issues in either Case No. 05-118 or Case No. 05-119.

Facts: Case No. 05-117 – Black Thunder and Coal Creek Mines – Tax Year 2001: For the tax year 2001, the Campbell County Assessor contracted with Pickett to appraise the personal property located at the mines. Pickett used the cost based approach to appraise the personal property at the mines based upon the information it had received from Thunder Basin. Thunder Basin disagreed with the valuation and employed Ernst who arrived at different valuations. The disparity resulted from differences in their respective calculations of physical depreciation and economic obsolescence. The County Board held a hearing on June 20, 2001 and issued findings of fact and conclusions of law upholding the County Assessor’s determinations.
Case Nos. 05-118 & 05-119 – Black Thunder and Coal Creek Mines – Tax Year 2002: In 2002, Campbell County contracted with Pickett to appraise property at Black Thunder and Coal Creek Mines. The County Assessor issued property tax valuations based on the Pickett appraisals. Thunder Basin disagreed with the valuations and again hired Ernst to conduct an individual appraisal at both mines. Thunder Basin appealed the Black Thunder valuation and the County Board upheld the County Assessor’s valuation. Thunder Basin appealed to the SBOE who ultimately concluded that the County Assessor’s valuation did not comply with the law. SBOE ordered the decision affirming the valuation be remanded. Thunder Basin filed a petition for review with the district court who affirmed the SBOE’s decision. Thunder Basin then brought this appeal to the Supreme Court. Thunder Basin also appealed the Coal Creek Mine 2002 assessment. The County Board concluded the County Assessor’s valuations complied with law and affirmed the valuations. The SBOE also affirmed. The district court affirmed as well, leading to the appeal to the Supreme Court.

Holdings: Case No. 005-117 – Black Thunder and Coal Creek Mines – Tax Year 2001: The standard for appellate review of agency decisions is found in Wyo. Stat. Ann. § 16-3-114(c). The Court examines the entire record to determine if the agency’s findings are supported by substantial evidence. If so, the Court will not substitute their judgment for that of the agency and will uphold the factual findings on appeal. The petitioner has the initial burden to present sufficient credible evidence to overcome the presumption. If successful, then the Board is required to equally weigh the evidence of all parties and measure it against the appropriate burden of proof. Once overcome, the burden of going forward shifts to the DOR to defend its valuation. The County Assessor’s choice of appraisal methods is reviewed under the substantial evidence standard. The Court reviews an agency’s conclusions of law de novo.
1998 Values: Wyo. Stat. Ann § 39-13-103(b)(ii) states that all property must be valued at its fair market value for property tax purposes. The rules and regulations of the DOR provide three methods of appraisal and the County Assessor and Thunder Basin agreed to the cost approach method. The County Assessor used the acquisition cost of the property as the starting place. Nothing in the statutes, regulations or guidelines prohibits the use of the acquisition cost of used personal property as the starting place for the cost method of appraisal. The County Board concluded that the County Assessor’s method was in accordance with the law and was a “rational method of appraisal, equally applied to all property.”
The Court concluded the record supported the County Board’s conclusion. The taxpayer bears the burden of providing accurate information to the assessor for preparation of a valuation of its properties. Thunder Basin failed to carry its burden to overcome the presumption that the County Assessor’s reliance on the 25% residual value limit was proper.
Economic Obsolescence: The County Board concluded Thunder Basin did not meet its burden of showing the County Assessor’s appraisal was flawed or did not comply with generally accepted appraisal practices. As to the issue of the economic obsolescence calculation for Coal Creek Mine, Thunder Basin failed to carry its burden with regard to overcoming the presumption of correctness enjoyed by the County Assessor’s valuation in this regard.
Adequacy of County Board’s Findings and Conclusions: The Court held that the County Board’s order was adequate to conduct their review because the evidence upon which the County Assessor relied in concluding an economic obsolescence deduction was not appropriate was not contested.
Case No. 05-118 – Black Thunder Mine – Tax Case No. 05-118 – Black Thunder Mine – Tax Year 2002: The Court dismissed Thunder Basin’s appeal for a lack of jurisdiction. In accordance with SBOE’s order, the matter remains remanded to the County Board for further proceedings.
Case No. 05-119 – Coal Creek Mine – Tax Year 2002: The County Assessor used the same procedures for his 2002 assessment as he did in 2001 and consequently, the Court’s analysis of those issues remained applicable in 2002.
Physical Depreciation – 1998 Values: The Court reviewed the Price Waterhouse appraisal and found nothing that would have prevented the County Board from relying upon the information submitted to it by Thunder Basin as the book value of the property at issue. The Court found there was substantial evidence to support the appraiser’s approach and consequently found no basis upon which to reverse the County Board’s decision.
Economic Obsolescence: The Court reviewed the record and noted that the two methods used to determine economic obsolescence were “differences of opinion” and not a sufficient basis on which to reverse the decision of the County Board.
Adequacy of County Board’s Findings and Conclusions: The County Board concluded after explaining both parties used acceptable appraisal methods, the differences were primarily the result of differing professional opinions. Thunder Basin failed to overcome the presumption the value assigned by the County Assessor was valid and correct. The Court concluded that the Board’s findings and conclusions adequately explained their decision.

The Court affirmed the decisions in Cases No. 05-117 and 05-119. The Court concluded that Case No. 05-118 was not properly before the Court and dismissed it for lack of jurisdiction.

J. Kite delivered the opinion for the court.

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

Summary 2006 WY 43

Summary of Decision issued April 12, 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 from this, or any future opinion 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: Valle v. State

Citation: 2006 WY 43

Docket Number: 05-31

Appeal from the District Court of Park County, Honorable Hunter Patrick, 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; Matthew D. Obrecht, Student Intern..

Date of Decision: April 12, 2006

Issue: Whether the district court erred in denying Appellant’s motion to withdraw his guilty plea without a hearing.

Holding: Appellant filed a motion to withdraw his guilty plea after judgment and sentence had been entered. The Court’s standard of review for a post-sentence withdrawal of guilty plea can be found in Deloge: if a motion to withdraw a plea is made after sentencing, a plea may be set aside only to correct manifest injustice. Whether a district court is required to hold an evidentiary hearing prior to deciding a motion to withdraw a guilty plea is governed by the test the Court adopted in Coleman: If the defendant alleges facts which, if true, would entitle him to relief, the trial court must hold a hearing. To prevent a possible deluge of unnecessary court hearings, the second element of the test allows a trial court to deny a hearing if the defendant’s allegations are contradicted by the record, are inherently unreliable or are merely conclusions rather than statements of fact.
The Court’s review was limited to the allegations contained in the motion and the materials before district court at the time the motion was denied. Nothing contained in the motion suggests that Appellant was seeking a withdrawal of his plea due to affirmative misadvice. In his motion, Appellant alleged failure to advise him of immigration consequences of a plea to a lesser charge. Appellant made no allegation of affirmative misadvice in his motion or any allegation that he was ever offered the opportunity to plead to the lesser offense referenced in his motion. Appellant’s motion failed to allege a fundamental defect in the proceedings that would rise to the level of manifest injustice. His motion offered no plausible basis for withdrawal of the plea and accordingly, the Court found no abuse of discretion in the denial of Appellant’s motion to withdraw his guilty plea without a hearing.

The decree of the district court was affirmed.

J. Burke delivered the opinion for the court.

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

Monday, April 10, 2006

Summary 2006 WY 42

Summary of Decision issued April 7, 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: Killian and Oakley v. Caza Drilling, Inc. and Long

Citation: 2006 WY 42

Docket Number: 05-37

Appeals from the District Court of Teton County, The Honorable Nancy Guthrie, Judge.

Representing Appellants (Plaintiffs): Robert N. Williams of Meyer and Williams, Jackson, Wyoming and James K. Lubing of James K. Lubing Law Office, Jackson, Wyoming. Argument by Mr. Williams.

Representing Appellees (Defendants): George Santini of Ross, Ross & Santini, LLC, Cheyenne, Wyoming, and Robert C. Jarosh of Hirst & Applegate, PC, Cheyenne, Wyoming for Appellee Caza Drilling, Inc. Gary R. Scott and Robert C. Jarosh of Hirst & Applegate, PC, Cheyenne, Wyoming for Appellee Orvil Long. Argument by Messrs. Santini and Jarosh.

Date of Decision: April 7, 2006

Issues: Appellants: Whether a duty to the motoring public arises where an employee became intoxicated on company premises with the corroboration and knowledge of his supervisor and in violation of a company policy expressly adopted to protect the public. Whether the Wyoming Dram Shop Act is applicable to the facts of this case. Whether court ordered counseling is one of the express exceptions to a privilege under Wyo. Stat. Ann. § 33-38-103.
Caza: Whether the Court should create a duty on the part of employers which have adopted policies prohibiting worksite possession or consumption of alcohol greater than those recognized under the Wyoming Dram Shop Act. Whether an employer can be held vicariously liable for off duty, off premises torts committed by employees or ex-employees. Whether there was a legally recognizable duty owed by Caza Drilling to the Appellant. Assuming such a duty exists, was the death of Jeffrey Pool so far attenuated and disconnected from the breach of the duty to the extent that any such breach as a matter of law could not be a proximate cause.
Long responds: Whether Wyo. Stat. Ann. § 12-8-301 immunized Orvil Long from liability for damages resulting from the accident that caused Jeffrey Pool’s death. If Wyo. Stat. Ann. § 12-8-301 does not immunize Orvil Long from liability for damages resulting from the accident that caused Jeffrey Pool’s death, does Wyoming law impose a duty upon Long, under the circumstances of this case, to protect against the harm caused to Pool. Whether the trial court abused its discretion in ordering that information regarding Orvil Long’s alcohol counseling, which was court-ordered in an unrelated case, was confidential pursuant to Wyo. Stat. Ann. § 33-38-113.

Holdings: Summary judgment is appropriate when no genuine issue exists of any material fact and the moving party is entitled to judgment as a matter of law. The Court examines the record in the light most favorable to the party who opposed the motion for summary judgment, and give that party all the favorable inferences that may fairly be drawn from the record. Through the application of the doctrine of respondeat superior, an employer is only liable for the negligence of an employee who is acting within the scope of his employment. Appellants asked the Court to expand the recognized circumstances in which an employer is liable for the negligence of its employees by imposing a duty directly upon the employer when it has adopted a safety policy with the intent to benefit the public.
The Court rejected Appellant’s use of Peal by Peal v. Smith from the North Carolina Court of Appeals. Next, the Court considered the factors set out in Gates v. Richardson as they applied to the instant case: the foreseeability of harm to the plaintiff; the closeness of the connection between the defendant’s conduct and the injury suffered; degree of certainty that the plaintiff suffered injury; the moral blame attached to the defendant’s conduct; the policy of preventing future harm; the extent of burden on the defendant; and the consequences to the community and the court system; and the availability, cost and prevalence of insurance for the risk involved. The law generally recognizes only two situations in which an employer is held liable for the negligent acts of his employees: when the employee is acting within the scope of his employment pursuant to the doctrine of respondeat superior, and when the employee is acting outside the scope of his employment but is on the employer’s premises or is using the chattel of the employer and the employer knows or has reason to know that it has the ability and opportunity to control the employee pursuant to Restatement (Second) of Torts § 317. The Court stated that the expansion of the duty to include the circumstances in the instant case might result in an employer forgoing the adoption of any safety rules to avoid the risk of liability. Under the circumstances of the instant case, the Gates factors do not favor imposing a duty on the defendant. The Court declined to expand the scope of an employer’s liability for the negligent acts of their employees beyond that already established under the law. Neither situation of the duties imposed under § 317 of the Restatement (Second) is applicable to the facts of this case, so there was no duty owed under the section. Appellants’ third party beneficiary theory was not supported by a cogent analysis with citation to appropriate legal authority so the Court declined to consider it.
Special concurrence: The Court took into account Appellant’s second issue regarding whether the Dram Shop Act is applicable. The Court found no duty, so there was no need for a defense, making this part of the argument moot. The argument that the Dram Shop Act creates a statutory duty was raised for the first time on appeal and the Court will not address such issues.

The Court affirmed.

C.J. Hill delivered the opinion for the court; with J. Golden specially concurring.

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

Thursday, April 06, 2006

Summary 2006 WY 41

Summary of Decision issued April 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: In the Matter of: JJF v. State and In the Matter of: CNS v. State

Citation: 2006 WY 41

Docket Number: 05-91, C-05-10

Appeals from the District Court of Natrona County, The Honorable Scott W. Skavdahl (05-91) and The Honorable W. Thomas Sullins (C-05-10), Judges.

Representing Appellants (Defendants): Tom Sedar and Kimberly A. Corey of Law Office of Tom Sedar, PC, Casper, Wyoming. Argument by Mr. Sedar.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and H. Michael Bennett, Assistant Attorney General. Argument by Mr. Bennett.

Date of Decision: April 6, 2006

Issues: Whether the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution and Article 1, §§ 2,6 and 7 of the Wyoming Constitution require the standard of proof at a risk-of-reoffense hearing to be clear and convincing evidence. Whether there was sufficient evidence in No. C-05-10 for the district court to determine that Appellant CNS posed a moderate threat of reoffense.

Holdings: (The cases were treated as confidential in the Court because the statutes provide for different levels of notice to the public for different risk assessments.) The Wyoming Sex Offender Registration Act is found at Wyo. Stat. Ann. § 7-19-301. The Act provides for registration and a risk-of-reoffense hearing process. The question of whether due process of law requires the standard of clear and convincing evidence is a question of law and was reviewed de novo by the Court. The two standards of proof at issue are preponderance of the evidence and clear and convincing evidence.
The Court considered the arguments proposed and stated that Wyoming’s statutes, like others nationwide, are regulatory rather than punitive in purpose. The statutory scheme provides the offender with notice and a right to be heard, with both sides participating in the evidentiary hearing. They exist to protect the public from repeat sexual offenders. It is the Court’s opinion that the exercise of the police power directly to protect the citizenry in this fashion is a reasonable exercise of fundamental governmental authority. The possible injury to a sexual offender from an erroneous classification is not significantly greater than any possible harm to the state. The “possible injury” is that he will be classified at a higher risk than what he actually is, but the “possible harm” to the State is a new sexual assault victim. The sexual offender does not stand on equal footing with the unconvicted as far as his right to be left alone by the government is concerned.
Sufficiency of the Evidence in Case No. C-05-10: The Court’s standard for reviewing the sufficiency of the evidence in the same context as in the instant case can be found at In re Avery. The district court in the CNS case clearly applied the statutory factors. The Court reviewed the record of the CNS case and stated that as long as sufficient evidence was presented that supports the district court’s findings and conclusions, the Court would not re-weigh the evidence or second guess the district court. All that is necessary for a finding of a moderate risk is that the State produce enough evidence to distinguish a particular offender from those considered to be low risk.

The Court affirmed in both cases.

J. Voigt delivered the opinion for the court.

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

Summary 2006 WY 40

Summary of Decision issued April 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: Jones v. State

Citation: 2006 WY 40

Docket Number: 04-35

Appeal from the District Court of Natrona County, The Honorable David B. Park, Judge

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

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Dee Morgan, Senior Assistant Attorney General. Argument by Ms. Morgan.

Date of Decision: April 6, 2006

Issues: Whether W.S. § 7-18-112 is unconstitutional because it is facially vague. Whether W.S. § 7-18-112 is unconstitutional as applied in Appellant’s case. Whether the evidence was sufficient to convict Appellant of escape, when the State did not prove beyond a reasonable doubt Appellant failed to remain within the extended limits of her confinement. Whether Appellant’s Sixth and Fourteenth Amendments’ right to counsel was violated when she was not appointed counsel at a critical stage of the criminal proceedings, the preliminary hearing.

Holdings: Constitutionality of § 7-18-112: Appellant waived this issue by not filing a motion to dismiss nor did she in any other manner challenge the constitutionality of the statute before the district court. Appellant’s brief presented no arguments to the Court as to why they should invoke either of the available exceptions of jurisdiction or a right so fundamental in nature that the court must take cognizance of it. The Court reviewed the record and saw no reason not to hold Appellant to her waiver of the issue.
Sufficiency of the Evidence: The Court’s duty is to determine whether a quorum of reasonable and rational individuals would, or even could, come to the same result as the jury actually did. The Court discussed this argument in Leyo and did not address it further here. Appellant was in official detention. What remained to be determined was the exact nature of the extended limits of confinement beyond which Appellant could not go without authorization. An adult community correctional facility must manage conduct and provide twenty-four hour supervision of residents while at the same time allowing the residents to enter the community for specific purposes intended to facilitate their reintroduction into society. The elements instruction given to the jury did not contain alternative theories upon which a conviction for escape should be based. The instruction followed the statutory language and such language contained all that was essential to constitute the crime. The Court stated that her conviction would stand if the record contained sufficient evidence that Appellant escaped by failing to remain within the extended limits of her confinement, without proper authorization at any time between the dates listed on the jury instruction.
Preliminary Hearing: The alleged error of Appellant being denied the right to counsel at the preliminary hearing is subject to harmless error analysis. Appellant presented no argument that any substantial right was affected by the alleged denial of counsel at the preliminary hearing. The Court stated it was nonsensical to allege, after conviction, that prejudicial error affecting defendant’s substantial rights occurred in the preliminary hearing.

The decree of the district court was affirmed.

J. Golden delivered the opinion for the court. J. Voigt filed a dissenting opinion in which J. Burke joined.

Dissent: The alleged crimes in the case were improperly charged and the jury was improperly instructed and as a result, the Court did not know what alleged conduct, on what date, formed the basis for the conviction. The instant case is not like Huff v. State which the majority relied upon. Nor was it like Bush v. State relied upon by Appellant. Bush involved a criminal statute that could be violated in multiple ways and the instant case involves allegations of multiple violations of a single statute. The mischarged Information and the general verdict form in the instant case violated the doctrine of charging duplicity described in McInturff v. State. To determine if an indictment is duplicitous, the court must determine whether only one violation can be found in each count. The Dissent would have reversed the conviction.

Link to the case: http://tinyurl.com/mv34g .

Tuesday, April 04, 2006

Word Processing Confidentiality

Every word processing document that is created, modified, viewed and forwarded is replete with metadata (background information such as your name, initials, name of your computer, name of the network server or hard disk where you saved the document, and more) that may be more than you want others to know. There are some tools provided by Microsoft to decrease this hidden data (see http://office.microsoft.com/en-us/assistance/HA010776461033.aspx and http://office.microsoft.com/en-us/assistance/HA010777371033.aspx).

Here is another option to remove metadata when converting a Word document to PDF format, posted by Cindy L. Chick to the LawLibTech blog. The National Security Agency has provided instructions to further reduce metadata: Document on Redaction.

Monday, April 03, 2006

National Library Week

Good morning -
This week we celebrate National Library Week..please join us for a little fun. I created a crossword puzzle to "test" your knowledge of the law library and if you are in town, stop by for a little treat. We look forward to seeing you!

Check out our tags in a cloud (from Wordle)!