*1 ASSOCIATION, PROTECTIVE POLICE Association, Unincorporated Callas, Jimmy Danny Overy, Zie
Robert Kesslar, Korbelas, Ken gler, Matt Neal Zollinger, Springs, T. Rock Thomas Weimer, Tripp and Robert Orman appellants. (Plaintiffs), Green, Appellants Atty. City Murray, Rock Jerry M. v. appellee. Springs, for SPRINGS, Wyoming OF ROCK CITY Laramie, Smith, filed amicus Thomas S. Corporation, Appellee Municipal curiae brief Association of (Defendant). Municipalities. 5351. No. ROSE, J.,** MeCLINTOCK,*** Before C. Wyoming. Supreme Court RAPER,**** ROONEY, THOMAS JJ. April30,1981. ROSE, Justice. Chief appeal in this is wheth- The central issue Springs may repeal its Rock er gov- decision that it be 40-year-old election police department by the state erned may, hold that but statutes. We was not free we further hold that or "merit" a new civil service to establish through of an ordi- the enactment adopt applicable nance which did not provisions of the statutes. background of this case is
Much opinion published year. in an reviewed last City of Rock v. Police Protective Association, Wyo., P.2d 975 In 1979, Police Chief March of Larry Levitt as "Com- hired Russell Hawk It was police department. mander" of the that Rock undisputed in the 1980 case depart- "police Springs had established within the commission" ment civil service (§§ Title 15 15-5- meaning of Art. Ch. 155-122, W.8.1977, now through 15-5-121, through W.8.1977 15-5-101 §§ pamphlet)). Article 1 contem- (July, 1980 within the force and plates promotion from procedural requirements imposes various Levitt of an officer. appointment a member of the previously been had not to order the court entered case pursuant March 1981. ** 1981. Justice since January Chief **** argument. oral at time of Chief Justice *** 1981, but continued Retired March participate of the court in this in the decision *2 434 appointment
force. His
City
offended several
"The
Council
establish in each
incorporated
police civil
cities and towns in
members of the
service commis-
Wyoming, maintaining
State of
sion,
a
as well as the Police Protective Associ-
paid
Department
having
Police
and
a
(PPA),
unincorporated
ation
an
association
population
(4,000)
of over four thousand
Springs policemen.
parties
of Rock
These
according to the latest United States
successfully sued in the district
an
court for
Census, a
which shall
commission
be
injunction against
appointment
we
and
known
Department
as the Police
Civil
affirmed.
Commission; provided
Service
that when
decision,
apparent
response
In
to our
such commission shall have been estab-
City
Springs passed
of Rock
an ordinance in
lished,
provided,
as hereinafter
it shall
repealed
City's
1979 which
1989
except by majority
not be abolished
a
providing
ordinance
for the establishment
vote
qualified
City
electors of the
police
of a
civil service commission.
or Town where the same is established."
employed
patrolman
Levitt was then
as a
In 1949 a district court reserved to us the
encouraged
posi-
to take a test for the
issue of whether
the above statute
inwas
along
pa-
tion of "Commander"
with other
3,
conflict with
Wyoming
Art.
37 of the
trolmen;
and,
highest
he
attained
score
Constitution.1 We
passed
held that
the act
City's
sys-
in accord with the
new "merit"
except
constitutional muster
provi
tem, was hired as "Commander."
sion that
the civil service commission could
except by popular
not be abolished
vote.
(appel-
PPA and several
individuals
Sheridan,
City
Fristam
Wyo.
v.
case) challenged
City's
lants in this
abo-
lation of or to the depart- ABOLITION OF THE POLICE DEPART- latest United census a States fire ment civil service commission. MENT CIVIL SERVICE COMMISSION "(b) governing body may, in each Pertaining Law to Police Civil incorporated municipality maintaining Service Commissions paid police department having pop- Springs adopted In 1989 Rock an ordi- (4,000) ulation of four thousand or more providing for a nance civil service according to the latest United cen- States pursuant commission Ch. police department sus establish a civil Wyoming. provided: The section S.L. service commission." 1. trust, otherwise, This section or or provides: levy taxes, to per- any municipal form functions whatever." delegate "The shall not to any commissioner, or special private corporation insignificant 2. There are differences between association, or make, power supervise wordings § 15-5-102, and the supra, interfere with any municipal improvements, 1965 session law. effects, whether held in moneys, amendment, the section makes effective date of this It be noted that shall should superseded civil service mandatory by gen- a fire remain in effect until specified municipali- for certain eral law and such law shall commission be municipalities to charter ordinance." provides that these ties but police department "may" establish Appellants contend that the 1989 Rock service commission. establishing ordinance *3 Wyoming the From our examination of department civil service commission is a relating to civil ser- law law, "law" under our case and that there- commissions, reason why vice we see no the City may fore the not abolish this "law." free of Rock is not to with- plaintiffs-appellants prevail, For the to to have draw its earlier election we would have to conclude that the amend spec- civil commission as city ment per intended that a ordinance by Both the state- ified the state statutes. taining topics to service or other could Fristam, supra, in and the use of the ment only repealed by legislature. be the The 15-5-102(b), supra, sup- "may" word in § rejected argument district court for a port this conclusion. reasons, number of two of which we find sufficient for our discussion.3 1(a)(iii), Wyoming Article § First, phrase the word "law" in the "ex Constitution isting 1(a)(iii) laws" of would have to be § 1(a)(iii), Appellants urge that Art. § interpreted to mean "ordinance." How Constitution, deprives ever, 1(a), unambigu in the word "law" is § authority repeal to its ordi- ously legis utilized to denote an act of the establishing police department the nance 1(b) lature while in the word "ordinance" § pro- civil service commission. This section municipal legislation.4 is used to refer vides: Second, popularly 1 of Art. 13 is "(a) legislature provide gen- known by The shall 1(d) as the home-rule law, amendment. Section applicable all eral cities and provides: towns,
% # #k # [*] [*] "(d) The powers authority granted towns, section, pursuant cities and to this "(ii) procedures by For the which cities liberally pur- shall be construed for the may merged, and towns be consolidated pose giving largest of the measure of dissolved; provided laws or self-government to cities and towns." subjects pertaining on such and laws service, retirement, interpretation collective bar- 'civil The strained for which the taxes, excises, gaining, levying appellants of would contend not be consistent fees, charges, interpretation powers other whether or not with a liberal applicable authority granted to all cities and towns on to cities and towns. "(b) hereby empow- All cities and towns are 3. The district also concluded 1(a)(iii) beginning of of Art. 13 ered to determine their local affairs portion * * *" government merely established ordinance phrase, "provided by savings subject governing Am.Jur.2d, clause as described 16 passed by body, (1979): legisla- Law 385-386 referendum when Constitutional pp. prescribed by ture, and further to statutes uni- only established, "When a new constitution it is and towns, to all cities formly applicable to insert customary provision, commonly prescribing to statutes limits of indebtedness. savings clause, known as a that all statutes levying taxes, excises, fees, of or any with the new force and not inconsistent charges leg- other shall be prescribed by constitution shall continue until amended or islature. not establish repealed by legislature, although gen- it is (4) more than four classes of cities and recognized laws such remain erally governed towns. Each and town shall be city force without to that express provision statutes, * * *" all other as it may exempt by except (Footnotes omitted.) effect. itself charter ordinance as hereinafter by pro- vided." 1(b) 4. Section provides: issue, issue, was not "This if it is an statutory-construction counter these To Pleadings not ad- and was raised in the Diefenderfer appellants cite arguments, Further, Brief. in Plaintiff's dressed Chicago, Bank of First Nat. ex rel. v. State authority supplied nor did was not Court (1906), 83 P. Wyo. Ill. cogent ar- have the benefit the Court we said: wherein gument. "* * * subject, upon the The ordinance given police officer "I if a would assume legisla- pursuant to adopted having been did, fact, interest and have a vested 'law' within authority, was a tive interfered with interest was that vested provision. meaning the constitutional ordinance], repealing he virtue [the munici- that a generally held been It has damages." his would have recourse 'law,' the mean- within is a pal ordinance dispute In their to us brief declaring ing the federal Constitution depriva- conclusion district court's impairing any law pass that no state shall * * *" process due "property without tion obligation contracts. *4 presented to properly not law" issue was inconsistency between this find no We Appellants cite their district court. the reasoning. court's and the district statement supporting Affi- well as the "pleadings, as merely states statement The Diefenderfer police the officers from davits on issue exercising municipality, obvious: A the involved." state, the not it power delegated to Injunction Declar- Complaint for the forbids federal Constitution do what the appellants Judgment by the con- atory filed does not create Diefenderfer states to do. fleeting mention of the above tains this neces- the word "law" Wyoming rule that a issues: constitutional "ordinances." sarily embraces alleges promo- the "13. Plaintiff that every present po- opportunities of tional AND IMPAIRMENT RIGHTS VESTED Springs, City of Rock employee lice OF CONTRACT every plaintiff association member though the argue that even Appellants of defend- jeopardized by the actions usually implies ant, an ordinance power implementation to enact in that controlling it, repeal there is Po- power to Rules of the Rock 'Personnel repeal would affect without exception Department' lice when obligations. laws would contractual to the civil service rights or reference vested property of their effectively deny constitutional them the federal Appellants cite Diefenderfer, process of law." without due above in provision discussed I, Con- United States supra. Article court brief makes no Appellants' district brief, appel- in the Elsewhere stitution. issue concern- any constitutional mention of repeal of the civil argue lants that deprivation ing impairment contract or deprivation constitutes service ordinance Appellants' supplemental property. process. due property without court also makes brief filed in the district constitutional is- mention of the federal no opinion the district memorandum In his sues. said: court briefs, filed these two appellants After suggested in oral for Plaintiff "Counsel joint pretrial court ordered a the district had police officers argument that certain responded with a Appellants statement. police civil service in the vested interest in which their Memorandum" "Pre-Trial prior system it existed impossi- had been represents that it counsel in- repealing and that ordinance] [the opposing counsel on a with the ble work interest. vested valid because Appellants' counsel states joint statement. vested inter- what is uncertain Court memorandum: in this vested interest Is it a est is claimed. declaratory relief retention, salary, retirement "Plaintiff's claims promotion, injunctive premised are relief and for or otherwise? Wyo- attempted legis 79-21 Defendant has 1l(a)(iii) upon Article [although late in the area of civil service ming Constitution." they system] a merit which in call in the memorandum points At two other powers of the usurps effect State legal up issues. attempts lay counsel Legislature. Again, this issue was not three treatments In none of these Pleadings nor has properly raised in the memorandum pretrial legal issue in any showing there to the Court that been consti- mention the appellants' counsel does adopted own civil ser Defendant has its of contract impairment tutional issues of system." (Bracketed material vice process without due deprivation original.) memoran- pretrial Filed with the of law. appeal urge On from Rock affidavits dum were various concluding wrong in district court was alleging that the re- officers system was their attack of the new "merit" adopting peal of the ordinance properly presented to the district court. commission had de- department civil property. prived them of Again, we must examine the record to conclusions. test the district court's abundantly clear think it We impairment-of-con- to mention failure existing police The abolishment of the deprivation-of-property or the tract issue of the so- civil service and the substitution three memoranda any of counsel's issue system "merit" were so intertwined called supports the district to the district completely the record as to in fact and in were not that these issues court's conclusion allegation propriety refute presented to him. properly *5 the "merit" was establishment of appellee lacked properly in issue or that not court will that this The law is well settled notice of it. not issues consider constitutional court; g., complaint alleges part: e. Nickel presented the lower 904, 907 Wyo., 607 P.2d People, son v. meeting regular "7. That at a of the July of Rock Council repealing No. 79-21 Or- Ordinance THE NEW ROCK OF ESTABLISHMENT was read for the third dinance No. 8-101 "MERIT" SYSTEM SPRINGS time, a vote thereon was had and final passed was a roll and the ordinance Springs repealed its ear After Rock (8) (5) vote of five votes for and three call adopting lier ordinance opposed. commission, City, according the civil service regular meeting of contentions, "8. That at the same adopted a new appellants' Council, Springs City the Rock According appel the system. "merit" ap- was offered and a resolution arguments, the "merit" district court lants' Rules of the proved, adopting 'Personnel which the actually a sham under system Department,' Police City of Rock effectively ap City Council mayor and the §prings hereto and copy of which is attached choosing to available point persons of their 'C.' incorporated herein as Exhibit However, appeal appel the on positions. lants make the argument so long # [*] % [*] L [*] City purports employ a "merit" or abolishing Civil "0. the ordinance That hiring, it must type system of civil service and the resolution Service aforesaid statutes, 15-5-101, seq. et follow the state Rules of the Rock adopting the 'Personnel guidelines po for a (which provide definite Department' Police were enacted . service) lice purport of the faith and that bad issue was not He said in his memorandum The district court "Plaintiff mental Brief that suggests properly presented to by virtue of Ordinance held that in it's opinion: [sic] the above Supple him. action in combination essence of a civil service avoiding No. 8206 of % # this injunction entered in Civil Court. [*] was to retain the % system while [*] L Act, 15- W.S. §§ Civil Service as a matter alleges that Plaintiff "12. 15-5-122, repub. ed. through 5-101 a civil service law, readoption of following any mer- immediately by plaintiff It is contended system merit promo- and appointment nullifies and civil service abolition repealing civil officers, supervi- ordinance under void the makes tion of commission, city in a service. sion of a board or to, promo- 4,000 must conform population, alleges over "13. Plaintiff with, on present po- state statutes every opportunities of and be consistent tional Springs, Rock subject." employee of lee plaintiff association every member memorandum, they set forth as one In such defend- by the actions jeopardized the issues: implementation ant, in that attempt to create a merit any "Whether Springs Po- 'Personnel Rules employees govern civil service board to without Department' lice general laws of to the must conform would service laws the civil reference state?" their deny them of effectively listed the same appeal, this On law." process of due without appeal as issues on as one of the issue pray- in the following were included follows: complaint: er municipality attempt of a "Whether judgment de- enter the Court "2. That gover- merit board to create a governs Act Civil Service claring that (police) civil servants must its nance of promo- appointment employment, Wyoming Police Civil Ser- to the conform De- Springs Police the Rock within tions vice Act?" partment. enjoin Six were devoted to pages brief permanently of their the Court "3. That argu- addressed in oral and it was issue legislating on the from defendant ment. inconsistent in a manner of civil Act of the Civil Service mandate was with- appellee cannot be said It Article XIII Wyoming Constitution ap- The fact the issue. out notice of 1(a)." *6 § it is not determi- response to pellee had no should of notice. Nor of the fact for native support of its motion in In its brief again present to be forced recognized appellee
summary judgment, * * "* action, the course appeal. issue on appellants' purposes [IJn of the one "* * * will not be al- govern- appeals enjoin orderly procedure, permanently * * Ap- except *." 5B C.J.S. operating by piecemeal City from lowed body of the ing Wyo- p. 197. and the peal Act and Error § Civil Service under Police * * appellants' *." In ming Constitution requires a of this case disposition Proper court, 15 the district brief to memorandum issue. of this determination arguing proposi- devoted to pages were a municipality may not create that "a tion LAW WITH STATE COMPLIANCE with inconsistent system civil service Act." Service Wyoming Civil 15-5-101, supra, pertain seq., et Section civil service. department police and fire memorandum, appellants pretrial In their provides that: 15-5-102(b), supra, Section purposes following among the included may, in each body "(b) governing The action: of their maintaining a municipality sought by incorporated declaratory relief "Alternative having pop- and a paid police is a declaration plaintiff (4,000) or more of four thousand ulation appointment of rules and adoption of cen- United States the latest according to supervise commission police sus establish conform Department must Springs Police service commission." provisions respects to the in all The ments once the commission is fications of such as: pointment, positions from its regardless violation of the layoffs, adoption of emption of others than the merit the Rock cers, aminations, conflict with the et ment, nated, are even rules, as, These seq., supra, examinations following classification of onee a civil service system merit removal provisions i. composition provided Composition requirements and vacancies application, e., personnel of the name cause and method of method of system, commissioners, here contested 5--are in direct sections set provisions provisions number Police demotion, etc. Criminal rules, positions, salaries, employment method of 15-5-122, promotions, Personnel Rules for must be rules, system adopted, commission, Department-the etc. which it is of the Act. commission, filling grades of § chief of forth respects, requirements recruitment established, is discharge, supra, 15-5-101, penalties complied require- employ of offi- placing desig- quali- such ex- ap- ex for reversed and the case is remanded for con- plicable upon its tions of Art. tinued opinion. See "Laramie Citizens for Good Govern ment" v. main in "(III) pertaining towns on the effective al amendment eral towns, "(a) whether (1980), et law and such # district court's bracketed material The proceedings seq. law, applicable by Art. * * * motion for to charter effect until or not are not reh. [*] to civil [December provided that 1.§ denied,6 applicable Laramie, # in accordance with this 1.§ repealed ordinance." service, summary judgment judgment Provisions of superseded shall to all cities and L 12, 1972], regarding limita added.) laws shall not be provide by Wyo., to all cities and retirement, date of * * * # made (Emphasis by gener- 617 P.2d appellee shall re- 15-5- inap # laws gen- * * many responsibilities duties and of the com police,
mission in the chief of
ete. Such
THOMAS, Justice, dissenting.
illegal.
conflict
I must dissent from the conclusions of the
Article
1 of the
Constitu
majority of the court
in this
My
instance.
tion, giving
towns,
"home rule" to cities and
only
aspect
concern is with that
exempts
uniformly applicable
"statutes
majority opinion which concludes that
all cities and towns" from the authorization
summary judgment must be reversed be-
given to cities and towns to "determine
adoption
cause the
of a new "merit"
their
government."
(Em
local affairs and
applicable
contravenes
state statutes.
phasis added.)
15-5-101,
seq.
Section
et
The conclusion that
does
well be
exempt
are statutes which are
from this
correct,
reaching
but
that conclusion I
provision.
They apply
all
cities and
*7
am satisfied that
the court has rendered an
having
population
4,000.
towns
of over
advisory opinion contrary to well estab-
18, 1(b) recognizes
Article
authority
of
precedent
lished
in this court.
classify
to
cities and towns
into not more than four classes. Reasona
I would affirm the action of the district
long
ble classification of such has
been rec
refusing
in
to consider this issue on
ognized.
Laramie,
May
City
Wyo.
v.
of
58
ground
appellants sought (and
240,
(1942).
Additionally, provides Art. ion. I they in would hold that not do have pertinent part: standing pursue aspect to this of case. 5. Such was concerning standing 17, adopted 1979-the same 6. A discussion of an organization party as a real in interest date that civil service was bringing an abolished-by City Council, is ex- of suit purpose also contained in "Laramie Citizens for v. hibit to the complaint. Good Government" of City Laramie, supra.
440 non-promotions, "Regarding the five judgment declaratory cases
This court
furnishing
shows that
rejected the
in the record
Gabal-
uniformly
evidence
has
County
Washakie
School
advisory opinions.
right
promoted
to be
protected
lah had no
Herschler, Wyo.,
v.
One
Promotion
Downey Merit
Pro
District Number
under
have a
Asso
(1980); Police Protective
Gaballah
gram. No
does
tended that he had he was en- which he asserted
opportunities pro- merit in accordance
titled to Ad- Downey Veterans program
motion said at Hospital. The court
ministration F.2d 1202: