*1 correct; ters, presumed appel- an they Livestock, Fuss, are Farms and v. Inc. supra. late not disturb them they court will unless We see no error. great erroneous or clearly against The judge’s judgment district that weight of the evidence. The review stan- expense moving the fence off the giv- dard that deference must be recognizes deed line back to the old fence line was not en to the of the court to opportunity trial A appealed appellees. non-appealing witnesses,
judge credibility of the may not party judgment. attack a Wyo reviewing that a will not aside the court set State ming Treasurer v. of Casper, findings court’s it merely might because (1976). Appellees P.2d 687 do not have a different The pre- reached result. express any disagreement with the trial sumption of correctness can be overcome if judge regard. the reviewing court on the entire evidence is left with a definite and firm conviction IV that a is mistaken. v. Lind- finding Shores Nonpayment of taxes on adversely sey, We are supra. unconvinced land, possessed consideration, while a does judge’s findings trial are mistaken. His not in itself destroy possession adverse conclusions of law are in accord Livestock, claim. Rutar Farms and Inc. v. announced, law exception heretofore so the Fuss, Ellis, supra; Meyer Wyo., 411 P.2d to the invali- rule of which would of taxes Nonpayment by the date findings, upon if based miscon- claimant is where usually case use to a law, ception apply. of the would not Shores fence rather than line pri line deed is the supra. v. Lindsey, pointed basis of the mary claim. As out in movement of the fences such Meyer our does Wyoming statute not re period for a short of time the old fence quire of taxes in order to payment establish place was down and the new fence possession adverse as do some states. All on the deed line did not defeat the adverse the other facts and circumstances possession ground posses claim on the any question case now before us override sion was of filing not continuous time taxes. There was no error in that regard. This court in Bruch v. complaint. Affirmed. Benedict, approved that a the rule not of an temporary interruption, break duration, destroy does
unreasonable posses of the adverse claimant’s
continuity
sion, the inten depending upon somewhat
tion shown possessor of the adverse as
the circumstances of the case. KESLAR, Appellant Matthew was, surrounding There as one of the (Petitioner), circumstances, only about a month between completion the time fence and new COMMISSION, CIVIL POLICE SERVICE filing of an action. The other facts and SPRINGS, Wyoming; CITY OF ROCK circumstances here show no intention to Thomas L. Tufford and Lawrence Lev give up possession their adverse claim. itt, individually and officers of the adequately This was demonstrated Department, Appel appellees, remonstrances of their at- (Respondents). lees tempts negotiate They a settlement. No. 5846. litigation as a within a entered in last resort very kept short time. claimants their Supreme Wyoming. Court of waving.” “flags Rutar Farms Live- June Fuss, stock, supra; Inc. v. Bruch Bene- dict, Appellees upon do not depend
tacking predecessors is use their —that title. see Rutar tacking, For a definition
Police Civil Service Commission the suspen- sion was reduced days from four to two days. police The then sought officer appeal the action of the Commission to the district court. The Springs Commission filed a motion to appeal. dismiss the The district court held it did not jurisdiction have to review Commission, action and the ap- peal district court was dismissed. disagree conclusion the dis- court, reverse, trict and we holding shall in this instance district court did have jurisdiction to review the action of the Rock Springs Police Civil Service Commis- sion.
In this case the parties agree could not upon articulation of the issues. Appel- lant, Keslar, disciplined Matthew police officer, states the in his brief in issues way:
“I. In cases in City’s which the person- nel provide rules appeal to the Commission, is the action of the Commission reviewable Courts? 15-5-113, W.S.1977,
“II. Does Section deprive jurisdiction the Court of over dis- ciplinary involving action police officers following cases: “(a) cases in which constitutional is- process sues of due of law and violation rights alleged of civil are and shown? Werner, Robert H. of Johnson Johnson & “(b) In cases in arbitrary which actions appellant. Rock Springs, for findings and by the Civil Service Commis- unsupported sion evidence, substantial Schalow, Jeffrey A. Atty., Rock alleged and shown? Springs, for appellees. “(c) In cases in is alleged which it and ROONEY, C.J., RAPER,* City’s Before evidence shows the own person- nel rules were THOMAS, BROWN, imposition not followed ROSE JJ. discipline?” THOMAS, Justice. Appellee, the Rock Civil Ser- only vice its statement making is wheth- appeal, er the issues involved in this sets jurisdiction district court has to re- them forth as follows: the disciplinary suspension view of a officer of the of Rock Springs. “First Issue. Does there exist in Wyo- period officer was for a of four suspended any specific ming statutory upon basis days without and after a pay, may seek granted by which was statutory of this matter or are there * partici- pursuant Retired June but continued to to order of the entered court June pate in the decision of the court in this case preclude ju-
common law nary corrections to his subordinate officers. dicial involving review of a matter a two- Commander Levitt further stated that he day disciplinary suspension had discussed the matter with Lieutenant of a officer? Tufford he had concurred with the “Second Issue. Has there been in this lieutenant’s findings and his planned disci- *3 matter an impairment of or constitution- plinary action. Commander Levitt conclud- ally impermissable interference "with [sic] that, ed his letter after reviewing the appellant’s rights or even a show- gathered data the during investigation a ing by appellant of a failure to comply time, second he remained in concurrence with guarantees basic constitutional taken, with the action and he stated that he which would allow him to seek “therefore, did ratify and confirm the ac- two-day disciplinary suspen- his tion taken by Lieutenant Tufford in this sions?” matter.” The essence of the dispute is the statutory 30, 1982, July On the Rock Springs Police justification for review of administrative Department Civil Service Commission proceedings Wyoming. granted appellant’s the request ap- for an For of this the purposes appeal operative and peal, the matter was set for on hearing facts are not complicated. night On the 10,1982. August IV, In Chapter Section 10, 1982, July appellant the was a driving Regulations Rules and of Rock vehicle, owned the of Rock Springs Department Police Springs, Wyoming, patrol. con- While Commission, it provided hearing pro- a ducting spotlight routine check of a ware- cedures shall abide by the Administrative house in Rock he ran Springs into one of specific Procedure Act with reference to four posts fixed which were implanted to 9-4-115, 9-4-101 (Cum. §§ W.S.1977 protect a fire in the hydrant vicinity of the Supp.1982), and specifically 9-4-107. § warehouse. Considerable damage resulted These have now been readopted investigation vehicle. An was con- and renumbered as 16-3-101 through §§ ducted, appellant’s immediate supervi- 16-3-115, (Oct. Rev.), W.S.1977 sor, Tufford, Lieutenant approval with the 16-3-107 now contains the procedures for ranking officer in the Springs the contested cases alluded to in the Rules Levitt,1 Police Department, Commander is- and Regulations Springs of the Rock sued a letter reprimanding appellant Department Civil Commission. Service and ordering suspended him to be for four effect of regulations these rules and was ten-hour days. work This letter was issued the hearing expressly required was on July and it stated that “The be conducted under the contested-case pro- conclusion of investigation showed me cedures in the Wyoming Adminis- situation, that you negligent were Act, trative Procedure and the hearing, and the situation should hap- never have held, when was so Upon conducted. pened.” Appellant appealed the four-day motion of the a continuance appellant, was Springs the Rock Police De- granted, hearing and the rescheduled for partment July Civil Service Commission on August 1982. 26, 1982, and he requested hearing on the matter. was lengthy, and the evi- presented ranging. dence was free It was
Commander Levitt was informed that the concerned with the contentions largely appellant suspension, intended to his 29, 1982, appellant disparity that there existed a July and on he wrote a letter to against actions taken other appellant disciplinary which stated that he had dele- accidents, gated authority discipli- police to administer officers involved in traffic vacancy 1. On the date in there was a anee of the duties of the Chief in his absence. in the office of the chief in the Rules and of the Rock Po- Levitt, Springs. Commander as Senior lice Chapter Civil Commander, charged perform- 1(a). was Section which was imposed upon and that him. Tufford. Lieutenant clearly Tufford was testimony concerning department There was other not a head. Commander Levitt facts and circumstances surrounding testified that he was not the department specific appellant incident in which the head either. Yet the Personnel Policies and involved, Procedures, investigation the results of the of Rock Springs, provide the accident which suspension only by department was conducted head. department, procedure ultimately IX, 9-5, Article Personnel Section Policies appellant’s led to suspension, past Procedures, acci- of Rock Springs, May dents which the was involved. appellant It appears from the record that the Rock 15, 1982, September On Springs Police Civil Service Commission filed Petition for Review of the order of even examined the scene of the accident request attorney themselves at the Service Commission in the district court in *4 the of Rock Springs.
for 12.03, accordance with Rule W.R.A.P. On affirming After the a final order 8, 1982, October a Motion to Dismiss Peti- suspension the appellant, modify- but tion for Review for Lack of Jurisdiction ing the was entered part, by presented was on behalf of the Commission. 18, August the Commission on In After briefs had been submitted on that that order the Commission concluded that: by parties, issue the the district court en- negligently operated
“Officer Keslar his tered its dismissing order Petition the for 10, assigned 15, Police 27 on July Unit # Review on November 1980. That order contrary pro- 1982 in violation of or to pertinent part as follows: moting the service the efficiency and “THE COURT HEREBY that the FINDS police department of Rock' Petitioner, Keslar, Matthew petitioned Springs.” the Court review of a ‘Final on Order Appeal Hearing Suspension’ on made It and significant that this para- conclusion 18,1982, August entered on by the Police phrased language III, the in Chapter Sec- Service Commission the tion of the Rules the and Police Department. He Rock Springs Civil Ser- sought review by the Court of that order vice Commission which set forth the upheld which his suspension duty from grounds for discharge department from the pay because of alleged negli- or a reduction in rank compensation. or gence driving a police car while on The order the Commission did reduce 10,1982; but, duty July which reduced period for appellant was to be sus- days four 10 hour to pended from four ten-hour work to days days; two 10 hour two such also days. found appellant that suspended by Command- “THE COURT FURTHER that FINDS Levitt, er acting who was head of the de- there was no from service nor partment. reduction in rank or the Petition- er;
Because the district court concluded it “THE COURT FURTHER that FINDS jurisdiction review, had no the merits of 9-4-114(a) virtue of Sections and 15- this proceeding are not before the court. 5-113, as the Wyoming amended of Stat- note simply passing finding that (1977 Edition), utes Republished Dis- that was suspended by Command- trict Courts are limited in their review of supported by er Levitt is not substantial proceedings before adminstrative evidence, [sic] and in fact contrary to the respective Civil Service Commissions testimony of both Levitt and Commander involving discharge to those matters Lieutenant Tufford. Instead evidence pay; reduction in rank or testimony introduced the hear- during ing consistently lead to that the conclusion “THE COURT FURTHER FINDS appellant was suspended by juris- Lieutenant this Court is without matter Council, ming Quality the within matter for the Environmental
diction
hear
limiting
points
following
quoted
exists a statute
He
language
reason
there
taken
Civil Ser-
this
Klein
Employ-
actions
court from
v. Fair
a dis-
involving
vice Commission to eases
ment
Ill.App.3d
Practices
charge
pay;
or a
in rank or
3.70,
(1975),
reduction
N.E.2d
as follows:
“
and,
case,
involving
a dis-
must be
exam
carefully
‘Each statute
charge or
in rank or
is not
pay,
reduction
legislature’s intent to
ined
to discover
this Court.
reviewable
review of administrative
restrict
“IT
ORDERED that
IS THEREFORE
(Heikkila
v. Barber
action.
be,
filed
the Petition for Review
herein
972.)
97 L.Ed.
73 S.Ct.
and it is
dismissed.”
hereby
barring
consti
While it is often said
can
legislature
impediments
tutional
in this
their
By
arguments
(See
Mount St.
preclude judicial
of views as to
parties present
dichotomy
Mary’s
v. Catherwood
Hosp.
jurisdiction
appropriate policy
511, 518-519,
N.Y.S.2d
N.Y.2d
availability
respect
with
(Fuld, C.J.,
Concur
260 N.E.2d
review of administrative decisions.
specifi
must be made
ring)),
intent
such
Civil Ser-
manifest,
persuasive
reason
cally
upon
relies
the case of
vice Commission
legisla
must
to believe
was the
exist
Wyo., 459 P.2d
Bowen v.
(Abbott
15-5-113,
tive
Laboratories
purpose.
upon
It also relies
*5
U.S.
S.Ct.
W.S.1977,
Gardner
provides:
which
1507, 18
681.)
a show
Only upon
L.Ed.2d
discharg-
“The
of the commission
decision
evidence of
ing
convincing
clear and
of
in rank or
ing
reducing any person
or
the
legislative intent
should
contrary
the district court
may
by
be reviewed
to
review.
judicial
access
courts restrict
the Wyoming
to Rule 12 of
pursuant
(1962), 369
82 S.Ct.
Rusk v. Cort
U.S.
of
Procedure.”
Appellate
Rules
809.’” United States
7 L.Ed.2d
is that
the
argument
The Commission’s
Wyoming
v.
Environ
Corporation
Steel
Sheridan,
thrust of
v.
of
Bowen
Council,
supra, at
Quality
mental
15-5-113, W.S.1977,
of
is that
light
in the
§
n
provi-
the
by
of the
to
virtue of
circumscription
right
urges
is a
Keslar
there
W.S.1977,
of
16-3-114(a),
right
a
limits that
to
sions of
judicial
right
review which
§
is
action
of administrative
judicial
of
civil service commissions
review
decisions
16-3-114(a),
Wyoming.
or
him in
in
Section
person
which
a
reduce
W.S.1977,
follows:
argues
provides
or pay.
rank
The Commission
court
has determined
previously
this
that admin-
requirement
the
“Subject to
to
review of administra-
right
the
in
be
remedies
exhausted
istrative
statutory.
entirely
decisions is
Walker
tive
or common-
any statutory
of
the absence
Commissioners, Albany
of County
v. Board
judi-
limiting
precluding or
provision
law
(1982);
P.2d 772
United
County, Wyo., 644
or ad-
review,
person aggrieved
any
cial
Wyoming
v.
Envi-
Corporation
States Steel
by
decision
in fact
a final
affected
versely
Council,
P.2d
Wyo., 575
Quality
ronmental
case,
by
or
a contested
of
in
agency
an
of
absence
a statute
In the
inaction,
any
or
action or
agency
other
discipli-
review of
authorizing
specifically
adopted
in fact
a rule
affected
person
argues
the Commission
nary suspensions,
re-
is entitled to
agency,
an
the
can
the intention of
that we
discern
county
the
court for
view in the district
judicial re-
right
to
of
legislature
limit the
in-
action or
in -which the
exclusively
orders
of its
to
view
decisions
real
taken,
inor
action was
reducing police officers
discharging or
by the administrative
property affected
pay.
or
rank
located,
no real
or if
action or inaction
involved,
court
in the district
property is
Keslar, however,
draws comfort from
also
ag-
party
which the
county in
for the
Corporation Wyo-
States
United
Steel
grieved or
the
adversely
affected
ad- Administrative Procedure
‘generous
Act’s
ministrative action
provisions’
or inaction resides or
must be
a
given
‘hospita-
has its
of
principal place
interpretation.”
business. The
ble’
The Court then held
procedure to be
proceed-
followed
the
at
construed. view This is consistent with language as policy
So far considerations are con- that was adopted by this court United cerned, it our view that the interests of Steel Corporation Wyoming States Envi- Wyoming Council, State best served Quality ronmental con- policy which leads reviewability in most to be language clusion drawn that 15-5-113, W.S.1977, instances. Association of Data Process- specifically making § ing Organizations, Camp, reviewable, Inc. 397 some acts does not exclude re- S.Ct. L.Ed.2d 184 might dispose view other acts well Supreme jurisdiction Court United to review quoted following States from language language case. do not find in the Report House on Federal Administra- v. City Bowen supra, which tive Procedure Act: actually dealt arising with an issue under “ * * * 15-5-112(b), W.S.1977, an articulation To preclude judicial review under specific intent statute, part legisla-
this bill a not specific if in with- preclude judicial ture to review, instances holding must upon its face *6 involving a lesser sanction than give convincing clear and of evidence an any person or reduction of in rank or pay. intent to withhold it. The mere failure provide to specially statute for judicial There is to particular case, more this no certainly evidence of intent v. City Sheridan, however. Bowen of su- to withhold review.” pra, can be support proposition said to Collins, 159, Then in Barlow v. 397 90 appellant U.S. was not entitled to a 832, 837-838, S.Ct. L.Ed.2d suspension review of his the Supreme Court States of United
expounded on concept this language: Commission because of the “ * * * 15-5-112(b), W.S.1977. Bowen v. of As we in Data Processing said Sheridan, held that supra, two-day disci- Service, preclusion judicial of review of plinary of police officer was adjudicating pri-
administrative
action
not a discharge
or reduction in
within
rights
vate
is not lightly to be inferred.
meaning
and intent of that statute.
Indeed,
judicial
[Citations.]
Sheridan,
v. City
however,
Bowen
rule,
such administrative action is the
did not involve an issue as to
whether
nonreviewability
exception
an
”
* * *
action
a commission in affirming must be demonstrated.
disciplinary
police
officer
In
Gardner,
Abbott Laboratories v.
387 U.S.
would be
to
review.
136,
1507, 18
S.Ct.
L.Ed.2d 681
Supreme Court of the United
was
States
It seems to
the position
us
confronted with argument that
parallels
appellant
analogous
of the peti-
argument here. The
Seaton,
535,
Court concluded that
tioner in
Vitarelli
359 U.S.
in accordance
with
prior
(1959).
its
“the
holdings
(1957)], was
regulations
bound
ceedings were followed in this case.
which he himself
promulgated
had
dealing
cases,
with such
even though
All this leads to an ineluctable conclusion
without such regulations he could have
that a statutory right of review was availa
discharged petitioner summarily.” Vitar
ble to Keslar
in this case. The Rock
Seaton,
elli v.
supra, 79
at
S.Ct.
973. Springs
Commission, in the
discretion,
exercise of its
In this case we must consider the Rules
adopted
had
the procedure provided in the
of the Rock Springs Police
Wyoming Administrative Procedure Act.
Department Civil Service Commission and
First National
Thermopolis
Bank of
v. Bon
the Personnel Policies and Procedures of
ham,
Wyo.,
(1977).
559 P.2d
Having
Springs making
a deter-
made the choice to
afford the
mination as to the appellant’s right of re-
right
review,
the Commis
view by the Commission. See Board of
sion
agreed
also
to extend to the appellant
County Commissioners of
County
Teton
panoply
protection
full
provided in
Services,
Teton County
Inc.,
Youth
the Wyoming Administrative Procedure
IX,
945
judicial
proper.
majori-
“the absence of
sons
review is
as a
for review
prerequisite
that “the interests of the
ty states
State
provision pre
or common-law
any statutory
are
served
a
Wyoming
by policy
best
it. The common-law
cluding
limiting”
or
reviewability
most instances.”
leads
from the deci
appeals
rule is not to allow
strongly disagree
This is where I
boards, civil service de
statutory
sions of
policy
such a
is unwise.
majority;
agencies.
or
partments,
Depart
Town Windsor v. Windsor Police
discipli-
dictates that some minor
Reason
Association,
Inc., 154
Employees
ment
matters need not be
to review.
nary
530,
(1967);
regular if can best be ways.
corrected in other Proc- Due
ess Clause Fourteenth Amendment guarantee against
is not a incorrect or