Summary 2006 WY 5

Summary of Decision issued January 10, 2006

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

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

Case Name: Monroe v. State

Citation: 2006 WY 5

Docket Number: 04-105

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

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

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

Date of Decision: January 10, 2006

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

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

The district court's judgment is affirmed.

J. Burke delivered the opinion for the court.

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

Summary 2006 WY 4

Summary of Decision issued January 10, 2006

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

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

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

Citation: 2006 WY 4

Docket Number: 05-57

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

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

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

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

Date of Decision: January 10, 2006

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

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

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

The decree of the district court was affirmed.

J. Voigt delivered the opinion for the court.

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

Summary 2006 WY 3

Summary of Decision issued January 6, 2006

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

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

Case Name: Plymale v. Donnelly

Citation: 2006 WY 3

Docket Number: 05-1

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

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

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

Date of Decision: January 6, 2006

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

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

J. Golden delivered the opinion for the court.

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

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

Summary 2006 WY 2

Summary of Decision issued January 5, 2006

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

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

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

Citation: 2006 WY 2

Docket Number: 04-254

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

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

Representing Appellee (Plaintiff): No appearance.

Date of Decision: January 5, 2006

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

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

The decree of the district court was affirmed.

J. Voigt delivered the opinion for the court.

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

Summary 2006 WY 1

Summary of Decision issued January 4, 2006

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

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

Case Name: Dunham v. Dunham

Citation: 2006 WY 1

Docket Number: 05-59

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

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

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

Date of Decision: January 1, 2006

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

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

The decree of the district court was affirmed.

J. Voigt delivered the opinion for the court.

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

Law Library Relocation

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

If you have any questions, please feel free to contact us.

Summary 2005 WY 165

Summary of Decision issued December 29, 2005

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

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

Case Name: State v. McAuliffe

Citation: 2005 WY 165

Docket Number: 04-65

Petition for Writ of Review/Certiorari

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

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

Date of Decision: December 29, 2005

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

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

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

J. Golden delivered the opinion for the court.

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

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

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