Law Library Letter

Summary 2009 WY 147

2009-12-03T10:21:00.002-07:00

Summary of Decision issued December 3, 2009

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

Case Name: Motley c. Platte County, WY

Citation: 2009 WY 147

Docket Number: S-08-0171

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

Representing Appellant Motley: H. Michael Bennett of H. Michael Bennet, PC, Cheyenne, Wyoming.

Representing Appellee Platte County: Bruce A. Salzburg, Wyoming Attorney General; Thomas W. Rumpke, Senior Assistant Attorney General; Richard Rideout, Law Offices of Richard Rideout, PC, Cheyenne, Wyoming.

Facts/Discussion: Motley worked for the Platte County Sheriff’s Department as a deputy sheriff. In 2006, he filed a complaint against the county, the Sheriff’s Department and Sheriff Steve Keigley alleging he was suspended and later terminated without cause and without notice and opportunity for a hearing in violation of § 18-3-611.
In Beaulieu II, the Court held that the failure of the complaint in a governmental claims action to allege compliance with both the statutory filing requirements of § 1-39-113 and the constitutional signature and certification requirements of Art. 16, § 7 precludes the district court from acquiring subject matter jurisdiction over the claim. The Court noted it had regularly upheld the strictness of the rule over the intervening years and stated that stare decisis dictated adherence to the rule in the instant case.

Conclusion: Because Motley’s complaint failed to allege the requisite constitutional compliance under Beaulieu II, the district court never acquired subject matter jurisdiction over the action. Since the Court was also without jurisdiction, the appeal was dismissed.

Dismissed.

J. Golden delivered the decision.

C.J. Voigt concurred: W.R.C.P. 8(a)(1) requires a civil complaint to contain a short and plain statement of the grounds upon which the court’s jurisdiction depends. The district court’s jurisdiction over a governmental claim depends upon the plaintiff’s compliance with Art. 16, § 7 of the Wyoming Constitution and with the Wyoming Governmental Claims Act (WGCA).
J. Burke joined by J. Kite dissented: The Justices dissented for the same reasons they identified in the dissent in the July 2009 McCann decision. The Justices disagreed with the application of stare decisis in the instant case. They noted that McCann was the first case in which a litigant lost the right to have a case determined on the merits solely on the basis that the complaint failed to meet the judicially created pleading requirements announced in Beaulieu II. Left unanswered in McCann and Beaulieu II are questions relating to the applicability of the Wyoming Rules of Civil Procedure to governmental claims litigation. The judicially created pleading rules relating to governmental claims should either be eliminated or applied in accordance with the W.R.C.P. As they are being applied now, they conflict with the W.G.C.A. and constitute an over-reaching by the judicial branch.

Link: http://tinyurl.com/yc8hpm7 .

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

Summary 2009 WY 146

2009-12-01T10:39:00.001-07:00

Summary of Decision issued December 1, 2009

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

Case Name: Forbes v. State

Citation: 2009 WY 146

Docket Number: S-08-0278

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

Representing Appellant Forbes: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Alan Johnson, Director, Prosecution Assistance Program; Justin A. Daraie, Student Intern; Christopher J. King, Student Intern.

Facts/Discussion: Forbes pled guilty to two counts of third-degree sexual abuse of a minor. The district court imposed concurrent sentences of six to eight years, but suspended those sentences and placed Forbes on supervised probation. Subsequently, the State moved to revoke the probation. The district court, after a hearing, revoked probation and imposed the underlying sentence.

Probation revocation proceedings are governed by W.R.Cr.P. 39. A probation violation will not justify revocation unless the violation was willful. The Court reviewed the district court’s finding that Forbes willfully violated a condition of his probation by having a woman and her minor son in his hotel room (his home.) As a condition of his probation, Forbes was ordered not to “initiate, maintain or establish contact” with any minor child. Although it was unclear how contact with the minor was initiated, the district court found Forbes did not terminate contact as required. According to testimony, Forbes was instructed that having the child in the room was a violation. Despite that, the mother and child were again in the room when the probation officer returned with law enforcement.
Forbes contended his actions were justified because they were necessary to prevent the woman and child from spending the night on the street. The Court stated it was unclear whether the defense of necessity was available to defend a violation of probation. In the instant case, there was insufficient evidence to establish the defense. The record showed the district court considered the circumstances of the incident in determining the consequences for the violation.
The Court considered whether the trial court committed reversible error when it did not permit Forbes to allocate at the probation revocation hearing. Although Wyoming has long recognized the right of a defendant to speak in mitigation at sentencing, it has not faced the question of whether a probationer has a right to allocute at a probation revocation hearing. W.R.Cr.P. 39 is silent regarding a defendant’s right to allocute. Forbes cited Anderson to support his claim that the allocution provision of W.R.Cr.P. 32(c)(1)(C) should apply in probation revocation proceedings. In Anderson, the defendant was not sentenced until her probation was revoked; in the instant case, Forbes was challenging a probation revocation proceeding governed by W.R.Cr.P. 39. The Court noted the split of authority on the issue and recommended the Advisory Committee for the Wyoming Rules of Criminal Procedure address the question.

Conclusion: In the instant case and in light of W.R.Cr.P. 39’s silence, the Court could not find that the district court erred in failing to offer allocution to Forbes.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/yjejypd .

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

Summary 2009 WY 145

2009-11-24T15:47:00.001-07:00

Summary of Order issued November 24, 2009

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

Case Name: Eaton v. State

Citation: 2009 WY 145

Docket Number: S-08-0235

Order Lifting Stay of Execution and Order Closing Case

The matter came before the Court upon a “Petitioner’s Status Report” which was e-filed November 16, 2009, pursuant to the terms of the Court’s November 14, 2008 “Order Granting Petition for Writ of Review, Order Vacating Warrant of Execution, Order Setting Date of Execution and Order Staying Execution.” In the Status Report, Mr. Eaton’s counsel informed the Court that the state district court denied the petition for post-conviction relief. In the Court’s docket S-09-0220, Mr. Eaton filed a petition seeking review of the district court’s denial of post-conviction relief. Today, the Court denied that petition and remanded the matter to the district court for issuance of a new warrant of execution. Given the Court’s disposition of the petition Mr. Eaton filed in S-09-0220, the Court found it was no longer appropriate for the Court to continue the stay of execution of Mr. Eaton’s sentence. Instead the Court found that any request for a stay should first be directed to the district court, or any tribunal that Mr. Eaton deems appropriate.

The Court ordered the stay of execution of sentence under the Court’s order of November 14, 2008 was lifted and the captioned case was closed.

C.J. Voigt delivered the order for the court.