*1 BRENNER, Appellant Lynnanne
(Appellant/Defendant), CASPER, Appellee
CITY OF
(Appellee/Plaintiff).
No. 85-267. Court of
July
Robert A. Monteith and Donald J. Rissler Associates, of Monteith and Casper, for appellant. Peek, Casper,
Richard H. appellee. THOMAS, C.J., BROWN, Before CARDINE, MACY, URBIGKIT and JJ. *2 MACY, Justice. “III. WAS THE EVIDENCE PRESENTED AT THE TRIAL HEREIN Appellant in municipal was convicted SUFFICIENT TO ESTABLISH THAT driving court of while under the influence APPELLANT, THE LYNNANN[E] (DWUI), of alcohol a violation of 24-27 of § BRENNER, WAS OPERATING A MO- (as Casper city July the code amended VEHICLE, TOR OR IN ACTUAL PHYS- 24-84). No. Upon Ordinance en- SAME, ICAL CONTROL OF THE tering guilty, appellant plea of not de- WHILE UNDER THE INFLUENCE OF manded a trial. The court denied the ALCOHOL TO A THAT [DEGREE] demand, and the case was tried to the RENDERED HER INCAPABLE OF August court. On the en- SAFELY A DRIVING MOTOR VE- finding guilty imposed tered its HICLE?” 30-day jail fine Ap- $750 sentence. We must determine ap whether pellant appealed her conviction to the dis- pellant was entitled to a trial at the appeals trict court. She now to this Court necessary part court level. As a affirming from the district court’s order of our inquiry, we must also determine her conviction. 5-6-207, W.S.1977, whether constitutes We reverse. infringement on the constitutional Appellant following raises the issues: by jury.1 to trial “I. DID THE MUNICIPAL COURT OF This is not the first time this Court has THE CITY OF CASPER ERR IN RE- question addressed the of whether one THE FUSING TO GRANT APPEL- charged city under a ordinance is entitled LANT, BRENNER, LYNNANNE A Lapp In BY TRIAL JURY OF THE AND FACTS Worland, EVIDENCE AGAINST HER? (1980), we held that a defendant who was “II. IS THE MUNICIPAL COURT[’]S charged city with DWUI under a REFUSAL THE TO GRANT [DEMAND authorizing jail sentence was entitled to a APPELLANT, LYNNANNE BREN- OF] court, in municipal regardless NER, ARBITRARY AND THEREBY ultimately whether a sentence was THE VIOLATING APPELLANT’S posed. the manner in which we EQUAL RIGHT TO PROTECTION UN- arrived at that result has created uncer- I, DER ARTICLE AND SECTION AR- and, fact, tainty in this area of the law I, TICLE OF THE SECTION WYO- may part appeal have led now MING CONSTITUTION AND THE Lapp acknowledged before us. 14TH AMENDMENT OF THE UNITED provides existence of STATES CONSTITUTION? follows: conviction, affirming appellant’s validity appeal, ground only
1. In its order
but is
the district court refused to consider the consti-
appro-
such action as the district court deems
* * *
tutionality
ap-
for the reason
§of
5-6-207
priate, including but not limited to
re-
pellant
copy
upon
failed to serve a
of her brief
offending party’s
to consider the
conten-
fusal
* *
5.07,
attorney general
required by
(Emphasis
tions
*.”
Appellee
appellant’s
W.R.A.P.C.L.J.
claims
rule,
clearly
Under this
it is
within the district
jurisdictional
prevented
failure is a
defect which
court’s discretion to decide whether
not to
considering
the district court from
the constitu-
question
consider a constitutional
raised in an
tionality
prevents
5-6-207 and now
appellate
upon
brief which has not been served
considering
question.
attorney general.
matter,
preliminary
As a
we note that
importantly,
More
this Court’s consideration
attorney gener-
serve a brief
failure to
entirely
of a constitutional
unaffect-
jurisdictional
preventing
al is not a
defect
disposition
ed
the district court’s
of the mat-
considering
district court from
question.
a constitutional
liberty
upon any
ter. We are at
to decide a case
1.02, W.R.A.P.C.L.J.,
opinion
point which in our
the ends of
part:
require, particularly
point
on a
so fundamental
timely filing
"The
of a notice of
cognizance
that we must take
of it. White v.
jurisdictional.
comply
failure
Fisher,
* * *
P.2d 102
other
these rules
does not
affect
* * *”
police
in the
court for violations
Lapp
Worland,
“Cases
v. City
ordinances shall be tried and de-
P.2d
at
police justice
without
termined
opinion,
a later
Justice Raper
jury,
intervention
trial of
further clarification of
decision:
police justice
cases before such
*
“Lapp
Worland
honors
respects,
shall be conducted
all
the discretion of
*3
for,
provided
otherwise
in
herein
like
by jury upon
there
trial
be
demand as a
justices
as criminal cases before
manner
right
only
substantive
but
as a matter of
peace.”
of the
procedure recognized
right
the
of this
language
statute,
the
the
Despite
clear
by
place
rule
jury
court to
the
trial in the
Wyo-
held that under Art.
9 of the
we
§
belongs
trial court where it
than
rather
5(d),
ming Constitution and Rule
W.R.Cr.P.
in
district
sitting
appel-
the
as
* * * ”
J.C.,
to
jury
the defendant was entitled
State,
late court.
Goodman v.
in
provides
trial. Article
relevant
§
(1982)
P.2d
(Raper,
part:
Justice, concurring).
right
by jury
“The
of trial
shall remain Thus,
gave
effect to Rule W.R.Cr.
**
in
inviolate
criminal cases
P.J.C.,
provided
5-6-207 was
§
superseded by Wyoming
Rules Crim-
decided,
5(d),
Lapp was
When
Rule W.R.Cr.
inal Procedure for Justice Courts.
P.J.C., provided:
characterizing
“Jury municipal
in
our determination to
court.—There shall
right
right
jury
move the
to
jury
no
to
in
trial from district
be
demand a
trial
proce-
court to
purely
court as
courts unless
sentence
and, therefore,
conviction;
authority,
dural
within our
imposed upon
to
but in all
we avoided
critical
us—
respects,
before
except
pro-
other
as otherwise
right
statute
vided,
whether a
which denies the
to
the trial
shall be conducted
like
trial
viola-
for
manner as criminal cases
tried before
are
ordinance,
regardless
tion of a
of se-
justices
peace.”2
of the
verity, is constitutional.
Although we did not discuss the inconsist-
ency
Art.
It is well established
between
9 and
that the
may pass any acts
provisions
expressly
address
which are
conflicting
we did
necessary implication
5(d)
by
by
contained in Rule
inhibited
and the statute. We
W.S.1977,
Wyoming
Budge
Constitution.
Board
noted
authorizes
Wyo.
Com’rs
Lincoln
procedural,
establish
but not
(1922). Although
While the
of
has
structured
district court was
W.S.1977),
argument
attempt
an artful
in an
to demon-
and in
v.
State District Court
proposition
jury
supra,
strate the
that a
trial in
Sheridan
this court held
of
by
provided
foreclosed
this statute
a substantive
5-6-207,
provisions
W.S.1977,
right
jury
of
to
such
a
trial in
a case.
City’s position
light
stand in the
cannot
of
Later an
amendment
legislation
the history
pertinent
of
and the
of the
Wyoming
State of
and a new statu
legislation by
construction of that
this
tory provision authorized this court
to
disposed
court.
be
This case can
of with- promulgate
procedure
rules of
out addressing
constitutionality
of the
peace
of the
and
courts. Pursu
appropriate
and that is
resolu-
5(d)
ant to
authority,
this
Rule
of W.R.Cr.
tion.
adopted,
language
P.J.C. was
and the
W.S.1977,
5-6-207,
has
su-
been
that rule clearly provides
jury
for a
29,
perseded
W.R.Cr.PJ.C.,
by Rule
which municipal
Lapp
Wor
5-130,
specifically
W.S.1957,
refers to
land,
supra,
at 612
we said
P.2d 873:
the same statute as
W.S.1977.
legislature’s right
“We do not
disturb
apprehension
must confess some
with
require
jury
to
a
trial in misdemeanor
respect
by
to a conclusion
this court to
prosecutions
cases in municipal
for ordi-
constitutionality
address the
of a statute
nance violations. We
move the trial
which at one time the court believed it
by jury proeedurally from the district
supersede
procedural
could
a
rule.
find,
court to the
court. We
Some might
that the
conclude
court was
case,
purposes
for the
that the
authority
adopt pro-
confident of its
to
give
to
an
intended
individual
cedural rules.
jury
trial for violation of a
jurisprudential
There is no
or
We
ordinance.
consider it a
history in
Wyoming
sug-
the state
person,
substantive
a
5(d), W.R.Cr.P.J.C.,
discourage
in have done little
We held that
this habit.
recognition
of the
substantive
Even the Warren
did not
make it as
trial, simply provided
for a
try
majority
difficult to
an accused as the
a
sentence was to
when
in this court has.
rule
imposed. Subsequently,
was
Neither the United States Constitution
trial when
amended to
“a
constitution,
requiring
nor the
upon
sentence is
cases,
apply
trials in
petty
criminal
light
jurisprudential
conviction.”
offenses. The United States
history leading up
to the decision
explicitly
said so
Frank v.
Worland,
supra, there is no basis
States,
395 U.S.
89 S.Ct.
United
argue against
City Casper
for the
prevail justice. legislature pro- If the over Wyoming, Plaintiff, The STATE of pay vided for a convicted defendant cost his enthusiasm for a jury, of a ZESPY, Robin Defendant. trial would diminish. Oft times DWUI jail sentence a salutary No. 85-165. cases a short most successful effect. The sentence posed judge district was one hour in Aug. county driving after a drunk convic- tion. law did common offenses. petty Duncan v. Loui
siana, supra. Wyoming’s Constitution was
adopted background, Wyo since
ming expressly adopted the common law as by judicial
modified decisions. McClellan
v. Tottenhoff, v. Epperley, Wyo., Choman W.S.1977
(Aug. Replacement), reads: England
“The common law of as mod- decisions, by judicial
ified so far as the
same is of nature and not
inapplicable, declaratory and all or reme- of,
dial acts or statutes made in aid or to
supply the defects of the common law
prior year to the fourth James (Excepting
First the second section of Elizabeth, chapter forty-third
the sixth eighth chapter of thirteenth Eliza- chapter thirty-seventh
beth and ninth gener-
Henry Eighth) and which are aof England,
al not local to nature and are in this when rule of decision state thereof,
inconsistent with laws as of full until re- considered force
pealed authority.” *7 opinion well written and however, illogical; poli- it establishes
cy required by Wyoming Constitu-
tion. I affirm would the trial court.