Summary 2011 WY 92

Summary of Decision June 8, 2011


[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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: Willoughby v. State of Wyoming

Citation: 2011 WY 92

Docket Number: S-10-0161

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462638

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender, and Tina N. Olson, Appellate Counsel, Wyoming Public Defender Program. Argument by Ms. Olson.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General. Argument by Ms. Pojman.

Date of Decision: June 8, 2011

Facts: The appellant was convicted of a 1984 murder in January, 2010. At some point during a party in 1984, the appellant sold drugs to the victim. The victim left the party, saying she would get the payment from her vehicle, and the appellant followed. The victim left in her car, and the appellant chased after the victim in his car. The appellant’s wife and a companion were also present. The appellant eventually caught up with the victim, pulled over in a turnout. The appellant dragged the victim from her vehicle, punched her in the face, and shot her twice. Later, the companion in the appellant’s vehicle made an anonymous call to law enforcement saying the appellant had killed the victim. At the time of the murder, however, insufficient evidence was developed with which to charge the appellant.

During the trial, several witnesses implicated the appellant in the victim’s murder. Much of the factual scenario came from the testimony of Appellant’s wife and companion, the eye witnesses, and from a fellow inmate with whom the appellant had discussed many aspects of the crime. In addition, another witness testified that during a hunting trip in 1984, the appellant had described how the victim was murdered, and that the appellant’s account scared the witness to the point that he eventually reported it to authorities.

The appellant’s trial defense was that of alibi. He claimed to have been at work at the time of the murder. The State presented expert testimony, corroborated by the hunting trip witness, that indicated forgery on the appellant’s work log. Beyond that, the appellant’s defense focused upon inconsistencies in the details of the testimony of the State’s witnesses. The jury found the defendant guilty of first-degree murder, and the appellant’s post-trial motion for a new trial was deemed denied when it was not determined by the district court within the time constraints of W.R.Cr.P. 33. The appellant appealed his conviction and the denial without a hearing of his motion for a new trial.

Issues: 1) Whether the district court abused its discretion by failing to grant the appellant’s motion for a new trial. 2) Whether the prosecutor committed misconduct by violating discovery orders, by violating a pre-trial order regarding uncharged misconduct evidence, and by eliciting testimony from a law enforcement officer that the officer believed a witness had lied during an interview?

Holdings: The judgment and sentence of the district court was affirmed.

In his motion for a new trial, the appellant raised eight issues. The first issue was whether the State had violated two court orders—one regarding uncharged misconduct evidence and one requiring the State to set forth the proposed testimony of witnesses—by eliciting testimony from the hunting trip witness that had not been revealed to defense counsel, specifically, that the appellant threatened to kill the witness if he ever talked again to the police. The Court found that in the context of the overwhelming evidence of the appellant’s guilt, and the district court’s detailed curative instruction, the appellant had not met his burden of showing that he was prejudiced in respect to the stricken testimony.

The second and third issues related to the testimony of two investigating officers, one from the sheriff’s office who had asked questions of the appellant’s companion regarding his anonymous telephone call to the police, and the other officer from the Wyoming Division of Criminal Investigation, who had spoken with the sheriff’s investigator about the call and later also questioned the companion about the call. The Court found that even if defense counsel was unaware before trial that the investigators had asked the companion about the telephone call, defense counsel knew about the alleged anonymous telephone call, who had placed the call, and that it had implicated the appellant. The Court could not conclude that such affected the outcome of the trial.

Appellant also challenged the pathologist’s testimony. The pathologist who performed the autopsy in 1984 was no longer physically able to testify. In his stead, the State called a forensic pathologist who had reviewed the original autopsy report and related materials. On appeal, Appellant objected to several aspects of the pathologist’s testimony, repeating his objections at trial: (1) the relative lateness of the report and the amended report; (2) the report’s contradiction of the original autopsy report; (3) The pathologist’s testimony as to the order of the wounds, which defense counsel characterized as “crime scene reconstruction”; and (4) that the testimony exceeded the scope of the pathologist’s expert designation. The appellant contends that this was a prejudicial discovery violation that left him without notice of what the pathologist’s testimony would be. The Court found that the district court had made extensive inquiry into the discovery process as it related to the pathologist’s report, amended report, and testimony. Eventually, while it did not grant the appellant’s motion to strike the expert’s testimony, the district court did limit the State to asking one additional question after the objection was interposed—that question being whether the chest wound or the head wound was the last wound. The appellant had not shown that he was unfairly prejudiced by the district court’s rulings.

The appellant further objected to the testimony of one of the detectives assigned to the re-opened investigation. Specifically, Appellant contended (1) that an officer of the law lied; and (2) that the State elicited the lie. The Court found nothing of such nature having occurred in regard to the detective’s testimony in this case, and further noted there was not one iota of evidence that the prosecutor committed any act of misconduct in this regard. The Court observed that defense counsel was allowed repeatedly to bring to the jury’s attention the appellant’s theory that the appellant’s companion had lied to obtain immunity.

Appellant also alleged the State’s failure to preserve two “sketches” apparently drawn during interviews of appellant’s wife and companion, both in 2008. The Court concluded that the State may have been negligent in not retaining the sketches, but that was not sufficient to show that the State acted in bad faith. The appellant had not shown that his right to the due process of law was violated, or supported the accusations made in his new trial motion.

During the trial, a transcriptionist discovered an audiotape of an interview with Appellant’s wife on the disk of a videotape interview of the wife. Upon learning of the existence of the audiotape, the prosecutors immediately provided a copy to defense counsel. The appellant motioned that the wife not be allowed to testify, as a sanction for the late disclosure. The district court took the motion under advisement, and later denied. In denying the motion, the district court noted that nothing appeared different on the audiotape from the videotape, but allowed the appellant to utilize it for cross-examination. Here the Court found that appellant failed, either before the district court, or in his appellate brief, to substantiate his allegations of a Brady violation.

Delineated as a separate issue, the appellant also contended that the State’s failure to comply with a discovery order in regards to the above issues might generally be recognized as prosecutorial misconduct. The Court found it had not been shown that the appellant was prejudiced by any of the prosecutor’s conduct described above, no less prejudiced to the substantial extent that would require reversal.

On the issue of whether the prosecutor committed misconduct by violating a pre-trial order regarding uncharged misconduct evidence, the Court found the witness’ comment at issue to be very general and relatively innocuous and not so unfairly prejudicial as to require a new trial. The Court observed that the district court granted defense counsel’s objection and struck the answer, and that the issue did not require further analysis.

On the issue as to whether the prosecutor committed misconduct by eliciting testimony from a law enforcement officer that the officer believed a witness was lying during an interview, the Court stated that no objection was interposed at trial, and so review was limited to review for plain error. In reviewing the factors for plain error, the Court noted that while there a clear and unequivocal rule of law forbids one witness to testify as to the credibility of another witness, here the violation of the rule when placed in context, was not so clear. The Court found this not to be a situation where the witness invaded the province of the jury by opining that another witness was lying, rather the witness merely commented upon something that the other witness had already admitted. The Court found it was not misconduct for the prosecutor to ask the witness about the other witness interview, as set forth above.

Affirmed. The appellant failed to show that the district court abused its discretion by failing to grant the appellant’s new trial motion, or that the prosecutor committed reversible misconduct.

J. Voigt delivered the opinion for the court.

Summary 2011 WY 91

Summary of Decision June 6, 2011


[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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: Hageman v. Goshen County School District No. 1

Citation: 2011 WY 91

Docket Numbers: S-10-0009

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462428

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

Representing Appellants: Kara Brighton and Harriet M. Hageman, Hageman & Brighton, PC, Cheyenne, Wyoming. Argument by Ms. Hageman.

Representing Appellees: Tracy J. Copenhaver, Copenhaver, Kath, Kitchen & Kolpitcke, LLC, Powell, Wyoming.

Date of Decision: June 6, 2011

Facts: In an effort to address a perceived drug and alcohol problem among its students, Goshen County School District No. 1 adopted a policy requiring all students who participate in extracurricular activities to consent to random testing for alcohol and drugs. Appellants initiated litigation, claiming that the Policy is unconstitutional. The district court granted summary judgment in favor of the School District. Appellants challenge that decision in this appeal.

Issues: These issues were raised by the Appellants and adopted by the Appellees: Whether the district court erred in refusing to declare that the District’s “Mandatory Drug Testing for Students Involved in Extracurricular Activities” violates [the prohibition against unreasonable searches and seizures of] Article 1, § 4 of the Wyoming Constitution. Whether the district court erred in refusing to declare that the District’s Drug Testing Policy violates Article 1, §§ 2 and 3 of the Wyoming Constitution, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Whether the district court erred in refusing to declare that the District’s Drug Testing Policy violates Article 1, § 6 of the Wyoming Constitution, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Whether the district court erred in refusing to enjoin the District from implementing the Drug Testing Policy. Whether the district court erred in granting the District’s Motion for Summary Judgment.

Holdings: The Court acknowledged that Article 1, § 4 of the Wyoming Constitution protects public school students from unreasonable searches and seizures. In considering whether the testing mandated by the School District’s Policy is reasonable under all of the circumstances, the Court recognized that students, particularly those who participate in extracurricular activities, are already subject to more stringent rules and regulations than adults, and so have limited expectations of privacy in the school setting. The Court found that the School District’s Policy adequately preserves the students’ personal privacy rights, and appropriately limits the degree of invasion into those rights. The Court concluded that the School District has a compelling interest in providing for the safety and welfare of its students, and that it therefore has a legitimate interest in deterring drug and alcohol use among students. On the closest question of all, the Court determined that the School District showed that its Policy requiring random, suspicionless drug and alcohol testing for all students who participate in extracurricular activities is rationally related to furthering its interest in deterring drug and alcohol use among students.

The Court further concluded that the Coalition did not demonstrate that the School District’s Policy subjects students to searches that are unreasonable under all of the circumstances. Accordingly, the Court held that the School District’s Policy does not violate Article 1, § 4 of the Wyoming Constitution.

The equal protection argument, as presented by the Coalition, can succeed only if the Coalition also succeeds on its search and seizure claim. The Court’s conclusion that the School District’s Policy does not subject students to unreasonable searches and seizures is, therefore, determinative of the Coalition’s equal protection claim as well.

The Court did not need to agree or disagree with the district court’s conclusion, because they found a more fundamental flaw in the Coalition’s due process claim. As stated above, a party claiming an infringement of his due process rights must demonstrate both a protected interest and an impermissible infringement on that interest. The Coalition has not demonstrated any infringement because it did not show, or even allege, that any of its members had sought and been denied judicial review of any decision made by the Superintendent pursuant to the Policy. The Coalition’s speculation that judicial review might be denied in the future is insufficient to support a due process claim now. Until this Court is presented with a case in which judicial review has been denied, it is premature to consider the Coalition’s claim that the Policy violates due process. The district court did not err in granting summary judgment against the Coalition on this claim.

Because the Coalition has failed to prove that the School District’s Policy is unconstitutional, there is no basis for their claim that they are entitled to a permanent injunction against implementation of the Policy, or for their claim that the district court erred in granting the School District’s motion for summary judgment. In conclusion, the Court agreed with the observation of Justice Breyer of the United States Supreme Court: “I cannot know whether the school’s drug testing program will work. But, in my view, the Constitution does not prohibit the effort.” The Court affirmed the grant of summary judgment in the School District’s favor.

Justice Burke delivered the opinion for the court.

Summary 2011 WY 90

Summary of Decision June 6, 2011


[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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: Christiansen v. Christiansen

Citation: 2011 WY 90

Docket Number: S-10-0252

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462423

Appeal from the District Court of Niobrara County, Honorable Keith Kautz, Judge

Representing Appellant (Plaintiff): Tracy L. Zubrod of Zubrod Law Office, Cheyenne, Wyoming; Mary Elizabeth Galvan of Galvan & Fritzen, Laramie, Wyoming

Representing Appellee (Defendant): No brief filed.

Date of Decision: June 6, 2011

Facts: Appellant and Appellee Christiansen are both residents of Wyoming. They were legally married in Canada in 2008. Appellant filed an action for divorce in Wyoming in February 2010. The district court determined it did not have subject-matter jurisdiction to entertain an action to dissolve a same-sex marriage. Accordingly, the district court dismissed the action.

Issues:  Whether a WYoming district court has subject-matter jurisdiction to entertian a divorce action to dissolve a same-sex marriage lawfully performed in Canada.
Holdings: District courts are endowed with broad subject-matter jurisdiction. District courts in Wyoming are courts of superior and general jurisdiction. They derive their judicial powers from the Wyoming Constitution art. 5, § 1 which states “The judicial power of the state shall be vested in the senate, sitting as a court of impeachment, in a supreme court, district courts, and such subordinate courts as the legislature may, by general law, establish and ordain from time to time.” Wyo. Stat. 20-2-104 (2009) expressly places subject-matter jurisdiction to entertain divorce proceedings with the district courts. The pivotal question is whether the fact that this is a same-sex couple strips the district court of the subject-matter jurisdiction it would otherwise enjoy to entertain a divorce proceeding.

The district court found dispositive Wyo. Stat. 20-1-101, defining marriage as a contract between a man and a woman. Since a same-sex couple is incapable of entering into a marriage as defined by § 20-1-101, the district court reasoned there was no marriage to dissolve. However, Wyo. Stat. 20-1-111 (2009) provides that “[a]ll marriage contracts which are valid by the laws of the country in which contracted are valid in this state.” The district court’s ruling thus creates a conflict between Wyo. Stat, 20-1-101 and 20-1-111.

Such a conflict does not exist in the context of a divorce proceeding. Wyo. Stat. 20-1-101 and 20-1-111, both relating to the creation of marriage, can coexist in harmony in the context of the instant divorce proceeding. Section 20-1-101 prevents a same-sex couple from entering into a marital contract in Wyoming. It does not speak to recognition of a same-sex marriage validly entered into in Canada. Section 20-1-111, on the other hand, expressly allows for the recognition of a valid Canadian marriage in Wyoming. On their face, the two sections treat different situations and as such do not conflict.

It is recognized that the rule set out in § 20-1-111 is not absolute. Under common law, this rule of validation is subject to certain recognized exceptions, namely, marriages which are deemed contrary to the law of nature as generally recognized in Christian countries, such as polygamous and incestuous marriages, and those which the legislature of the state has declared shall not be allowed any validity, because contrary to the policy of its laws. However, the policy exception is necessarily narrow, lest it swallow the rule. It is not enough that a marriage would not be valid if solemnized in Wyoming. Common law marriages provide a good example. Common law marriages entered into in this state are invalid. Yet, the validity of common law marriages entered into in foreign jurisdictions has been recognized for limited purposes. Likewise, recognizing a valid foreign same-sex marriage for the limited purpose of entertaining a divorce proceeding does not lessen the law or policy in Wyoming against allowing the creation of same-sex marriages. A divorce proceeding does not involve recognition of a marriage as an ongoing relationship. Indeed, accepting that a valid marriage exists plays no role except as a condition precedent to granting a divorce. After the condition precedent is met, the laws regarding divorce apply. Laws regarding marriage play no role.

Specifically, the parties are not seeking to live in Wyoming as a married couple. They are not seeking to enforce any right incident to the status of being married. In fact, it is quite the opposite. They are seeking to dissolve a legal relationship entered into under the laws of Canada. Respecting the law of Canada, as allowed by § 20-1-111, for the limited purpose of accepting the existence of a condition precedent to granting a divorce, is not tantamount to state recognition of an ongoing same-sex marriage. Thus, the policy of this state against the creation of same-sex marriages is not violated.

Two Wyoming residents are seeking a legal remedy to dissolve a legal relationship created under the laws of Canada. Nothing in Wyoming statutes or policy closes the doors of the district courts to them. The district court has subject-matter jurisdiction to entertain their petition for divorce.

Reversed and remanded for further proceedings consistent with this opinion.

The court made it clear that its analysis was expressly limited to the issue before it. Nothing in this opinion should be taken as applying to the recognition of same-sex marriages legally solemnized in a foreign jurisdiction in any context other than divorce. The question of recognition of such same-sex marriages for any other reason, being not properly before the court, is left for another day

J. Golden delivered the opinion for the court.

Summary 2011 WY 89

Summary of Decision June 1, 2011

[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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter 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:  Bd. of Prof'l Responsibility, Wyo. State Bar v. Jenkins

Citation:  2011 WY 89

Docket Number: D-11-0003

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462419

Date of Decision: June 1, 2011

Facts:  Respondent attempted to utilize a third person to communicate information to and/or obtain information from a person who was represented by counsel in a child custody matter.  The attempted contact was not successful, and Respondent obtained no information thereby.  Respondent agreed with the Board of Professional Responsibility that his conduct violated Rule 4.2 of the Rules of Professional Conduct for Attorneys at Law, and agreed to a public censure in the matter.

Holdings:  The Court found that the Board’s Report and Recommendation should be approved, confirmed and adopted by the Court, and that Respondent should be publicly censured in the manner set forth in the Report and Recommendation. 

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

Summary 2011 WY 88

Summary of Decision June 1, 2011

[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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter 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:  Bd. of Prof'l Responsibility, Wyo. State Bar v. Anderson

Citation:  2011 WY 88

Docket Number: D-11-0001

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462418

Date of Decision: June 1, 2011

Facts:  Respondent had been licensed to practice law in the State of Wyoming since 1977, and had recently retired from the practice of law.  Other than the instant proceeding, Respondent had not been the subject of any professional discipline.  The Board found that Respondent had breached his amended diversion contract, and that Respondent’s conduct also constituted a breach of Rules 1.1, 1.3, 1.4, 1.5 and 8.4 of the Rules of Professional Conduct for Attorneys at Law.   Because Respondent had retired from the practice of law, he did not desire to contest the formal charge.  Respondent stipulated to a one year suspension of his license to practice law in the State of Wyoming.

Holdings:  The Court found that the Board’s Report and Recommendation for Suspension should be approved, confirmed and adopted by the Court; and that the Respondent should be suspended from the practice of law for a period of one year.

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

Summary 2011 WY 87 (Order)

Summary of Order June 1, 2011


[SPECIAL NOTE: This order uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the order, with a P.3d parallel citation. You will also note when you look at the order that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: Pendleton v. State

Citation: 2011 WY 87

Docket Number: S-11-0011

URL: http://www.blogger.com/goog_1983955202

Date of Order: June 1, 2011

ORDER AFFIRMING THE JUDGMENT AND SENTENCE OF THE DISTRICT COURT

This matter came before the Court upon its own motion following notification that appellant has not filed a pro se brief within the time allotted by this Court. Appellant pled guilty to one count of sexual abuse of a minor in the second degree. He filed this appeal to challenge that conviction. On March 4, 2011, Appellant’s court-appointed appellate counsel filed a “Motion to Withdraw as Counsel,” pursuant to Anders v. California, 386 U.S. 738 (1967). Following a careful review of the record and the “Anders brief” submitted by counsel, this Court, on March 29, 2010, entered its “Order Granting Permission for Court Appointed Counsel to Withdraw.” That Order notified Appellant that the District Court’s November 16, 2010, “Judgment and Sentence” would be affirmed unless, on or before May 16, 2011, Appellant filed a brief that persuaded this Court that the captioned appeal is not wholly frivolous. Taking note that Appellant has not filed a brief or other pleading within the time allotted, the Court finds that the district court’s “Judgment and Sentence” should be affirmed.

.

Summary 2011 WY 86

Summary of Decision June 1, 2011


[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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: Town of Evansville Police Department v. Porter

Citation: 2011 WY 86

Docket Number: S-09-0178, S-10-0133

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462416

Appeal from the District Court of Natrona County, Honorable W. Tomas Sullins, Judge

Representing Appellant (Defendant): Judith A. Studer of Schwartz, Bon, Walker & Studer, Casper, Wyoming

Representing Appellee (Plaintiff): Keith R. Nachbar of Keith R. Nachbar, Casper, Wyoming

Date of Decision: June 1, 2011

Facts: In these two consolidated appeals, Appellant appeals the district court’s order of reversal for agency inaction (No. S-09-0178) and the district court’s order denying motion for relief from an order (No. S-10-0133). The appeals arise from the Appellant’s effort to terminate the employment of Appellee.

Issues: NO. S-09-0178: Whether Appellee effectively appealed his termination of employment by timely serving his request for hearing on the mayor and the attorney for the Town and the Police Department. NO. S-10-0133: Whether the district court committed an error of law in denying the Appellant’s W.R.C.P. Rule 60(b) motion.

Holdings: The pre-termination procedural due process requirements of the Appellant’s personnel manual are quite clear. There must be a written notice of termination delivered to the employee. That written notice must state: 1. the specific details of the infractions; 2. earlier disciplinary action taken for other, similar infractions, if appropriate; 3. reasons for the termination action; 4. the effective date of the termination; 5. notice of the employee’s right to request an informal hearing before the appointing authority prior to the effective date of termination. When the employee receives this written notice of termination before the effective date of termination, the employee may then request an informal hearing before the appointing authority “for purposes of determining whether there is reasonable cause for termination Importantly, “[a] tape recorded record of the informal hearing shall be maintained.”

Appellant failed to comply with any of these pre-termination procedural due process requirements. The purpose of the requirements of written notice of the specific charges and having the subject employee request a pre-termination hearing is to allow that employee to marshal his case against the terminating actor. Absent suitable written notice, as required by the departmental procedural safeguards in place here, the opportunity for Appellee to marshal his case and be meaningfully heard before termination was a charade. Although the briefs state that at the meeting called by the police chief, several allegations against Appellee were identified, it is clear that the police chief’s termination letter expanded considerably the breadth of reasons for taking termination action. Had the Department (police chief) delivered that letter to Appellee at the outset so that he could marshal his response to the contents of that letter and then request the pre-termination hearing to which he was entitled, perhaps this case would be in a different posture.

It will not do for the Appellant to assert that Appellee could have cured the Department’s violation of his pre-termination procedural due process rights had he but correctly and timely met the requirements of the post-termination procedures prescribed in the personnel manual and submitted his notice of appeal to the police chief as the appointing authority. Where an employee is fired in violation of his due process rights, the availability of post-termination grievance procedures will not ordinarily cure the earlier violation. Thus, even where a discharged employee receives a post-termination hearing to review adverse personnel action, the pre-termination hearing still needs to be extensive enough to guard against mistaken decisions, and accordingly, the employee is entitled to notice, an explanation of the employer’s evidence, and an opportunity to present his side of the story.

Appellant’s termination of Appellee’s employment as a police officer violated his pre-termination procedural due process rights and the action is remanded to the district court with directions that it issue its order ordering the Appellant to immediately reinstate Appellee to that employment.

J. Golden delivered the opinion for the court.