Courts & Law Enforcement

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Casper’s city clerk acted “arbitrarily and capriciously” when he rejected signatures on an anti-smoking petition a year ago, District County Judge Daniel Forgey ruled Tuesday.

The judge stopped short of ordering that the signatures be counted, which would trigger a special election on the referendum. Still, it was a big win for former Casper city councilwoman Kim Holloway and her attorney, Mary Ann Budenske, and it left Casper City Attorney Bill Luden scurrying to his law books to see what the city might do next.

Budenske said the city could decide to do nothing, in which case Holloway would bring the issue back to court. “It’s nothing personal against the city clerk (V.H. McDonald),” the plaintiff said. “We just want him to do his job properly. I’m glad the judge decided that the voters who signed our petition shouldn’t have been disenfranchised.”

Casper’s City Council passed an ordinance in 2012 banning smoking in all restaurants, bars, taverns, lounges and private clubs within the city limits. Holloway was one of the council members who supported the ordinance by a 7-2 vote.

Several business owners who wanted to allow customers to smoke protested the move, and in the November 2012 election enough new council members who agreed were elected and brought the issue up again.

In June 2013, the council amended the ordinance to allow bars in the city to decide whether smoking would be permitted in their establishments. All but a half-dozen bars in the city kept the smoking ban in effect.

Holloway then helped organize Keep Casper Smoke Free, which launched a petition drive to get the required 2,454 signatures of registered voters to put the issue on the ballot. The city clerk reviewed the petitions and announced the effort fell 61 votes short. The clerk said 685 signatures were invalid for various reasons.

The group did its own review and discovered there were several inconsistencies in how the city clerk’s staff determined if a signer was a registered voter. The clerk’s office threw out any signatures of voters whose address didn’t match exactly what was on the city’s list of registered voters. It also rejected all signatures that weren’t exactly as recorded on the voting rolls, including middle names or initials that were different or omitted.

Forgey ruled that McDonald should not have rejected the signatures of voters who had moved since they registered but still lived in the city. He said at least 67 signatures were incorrectly declared invalid for this reason. If they had been counted, the issue would have gone to the public to decide at a special election.
Luben described it as a difficult case to decide, since there is little legal precedence on petitions in municipal elections. Each municipality now decides on its own how petition signatures will be validated.

Forgey decided the city of Casper should meet the same standards for review that the Wyoming Secretary of State’s office does. “The city clerk excluded signers on an incorrect legal basis,” the judge said in court Tuesday morning.

Luben said he will have to review the decision, which he did not yet have a copy of, and sort out the city’s legal options for other officials. One alternative would be to appeal the judge’s decision, he said.

Budenske said Forgey’s summary judgment in favor of her client could have significant implications on how petition signatures are collected and validated in municipalities throughout the state. “A lot of voters and organizations around the state are watching this case,” the lawyer said, including a group seeking a statewide referendum on legalizing medical marijuana. “It’s making the municipalities and city clerks nervous.”

The judge said people circulating petitions could be required to get more information from potential signers, such as whether they have moved since the last election, to help city officials determine if they really are registered voters. He said more information could also be obtained from county clerks to help the validation process.

That could make the petition process more difficult for groups, but it could also result in a higher percentage of signatures being validated by city clerks, Budenske said.
Casper City Councilman Keith Goodenough, who is running as an independent for the Natrona County Commission, was in the courtroom to hear the ruling. He recalled that the council began debating the smoking issue three years ago, and experienced much turmoil all along the way.

“I had hoped it would be over and done with,” said Goodenough, who added he supports property rights and voted to amend the ordinance so bar owners could decide whether to allow smoking. “I thought we had reached a good compromise, because non-smokers had places they could go and smokers had places they could go, too. I think it’s been working well.”

Budenske compared the smoking ban issue to a divorce case in which both sides keep fighting over property, child custody, etc.

“It’s never over,” the attorney said.

Holloway served on the city council from 2008 to 2012, when she left to run as a Democrat for state Senate District 28. She lost that election to Republican Jim Anderson.
She’s trying to get her old seat back on the city council. Holloway finished second in the city’s Ward 1 primary, and will face Robin Mundell in the Nov. 4 general election.
Holloway, who had a big smile on her face after the judge read his ruling, said she doesn’t know if her lawsuit against the city will have any impact on her city council race.

But “the woman who ran against city hall — and won” is certainly a campaign slogan with a nice ring to it.

 

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Given the state of Wyoming’s historic lack of public disclosure on many issues, it shouldn’t surprise anyone to learn the state is one of only 14 in the nation where the public can’t obtain sales information — including appraisals — of houses and commercial and agricultural properties.

Rep. Mike Madden (R-Buffalo), co-chairman of the Joint Revenue Interim Committee, thought he’d give changing the law a try. He led a discussion of the pros and cons of making Wyoming a full disclosure state when the committee met in his hometown Monday.

If you already know this procedural stuff, you can skip the next few paragraphs and jump ahead to see what the committee did. But if you don’t, here’s what you need to know about the issue (please try to stay awake, because you’ll absorb the information better and you won’t have to come back here later and read it again):

Currently, there is only a short window of time for owners to see the reasons why the county has set the value of their property at a certain level for tax purposes.

Beginning in 1985, “Statements of Consideration” were required to accompany documents recorded in the county clerk’s office that transfer equitable title. There was no disclosure at all until 1996, when the Legislature allowed any property owners that appeal the county’s tax assessment access to statements that were used to determine the fair market value of their property. But it is available for only 30 days, and if they reveal it to anyone else, it’s a misdemeanor punishable by a $750 fine.

In 2009, the Legislature changed the law to allow property owners to review statements of consideration of “like use (i.e, the same type) and geographic area,” even if the assessor did not use them in the appraisal of their property.

“My problem is it seems like we’re talking out of both sides of our mouth,” Madden said. “We’re saying this is private but we’re going to give this [information] to you, but you’ve got to give it back to us in 30 days. It’s kind of silly. If it really, really wasn’t disclosable, instead of being partially disclosable, I wouldn’t see the paradox here.”

What makes the issue controversial is the fact some of the major stakeholders can’t decide whether to support public disclosure or not, while others have views that are polar opposites. Laurie Urbigkit of the Wyoming Realtors Association told the panel her organization is equally divided about whether sales information should be public or private.

Appraisers, she said, favor making it public, while the agricultural community — which Urbigkit explained is very protective of its privacy — is adamantly opposed to any change because it may include their industry under any new law.

So far that’s one group in favor, one against, and the other leaning equally to one side or the other. Thirty-six states have full disclosure laws, but Wyoming and 13 others don’t. Can you see where this is headed?

Brenda Arnold, administrator of the Wyoming Department of Revenue’s Property Tax Division, said she’s never seen a district attorney or county attorney prosecute someone for the misdemeanor of giving anyone else confidential sales information on file with the county.

“One of the other things that comes into play here is that every time the house next door goes on the market, and you get a flyer in the mail that says here’s what the property next door sold for, I know assessors get those phone calls that say, ‘Wait a minute. I thought that sales information is private, confidential information,'” Arnold explained. “[They’re] not recognizing that when you list your property with a Realtor, you are providing that Realtor with the authority to disclose that information within their own business community.”

Arnold said she thinks whether a public disclosure law would include agricultural or other commercial properties in addition to the current residential property “is really a philosophical question the legislative body needs to address. Because if it’s opened up, it’s all properties. While agricultural land’s value is [constitutionally] based on its ability to produce, if I’m trying to figure out what pasture land is selling for in my county, I would want access to those sales in my deliberation process.”

“I love this issue,” said Urbigkit, who recalled that when the law was passed in 1985, the Realtors Association was “hugely opposed” to it.
“They did not believe the sales price of private real estate should be disclosed to anybody, including the assessor,” she said. “But they went along with it begrudgingly because [the assessor] has to have the information.”

Attitudes about public disclosure have changed in recent years within the real estate industry, Urbigkit said. A survey she conducted about six years ago found members of her association equally divided on the issue, and she is planning to survey the members again at their annual meeting in September. She said those who support public disclosure “are being more vocal about it.”

In many ways what position people take seems to based on where they live. “There are pockets that say, ‘Absolutely do not let them open it up, it’s nobody’s business. This is a privacy issue.’ Then there are other areas that say, ‘Who cares, everybody knows what everyone’s houses have sold for anyway,'” she related.

“In Teton County, you’re going to have fun up there,” Urbigkit predicted. “Because that board [of county commissioners] is actually pretty equally split. … A lot of the larger sales, the owners don’t want people to know what they paid for their property.”

Park County Assessor Pat Meyer argued for full public disclosure. He said if it was left up to him, there would be a book filled with sales information on each county assessor’s counter.

“It’s more truth in taxation,” he said. “Right now, it’s almost like we’re hiding something.”

After hearing testimony from people for nearly an hour, the committee began its own discussion. It didn’t last more than a few minutes.

Madden asked if any of the members were interested in sponsoring a committee bill. Only a couple of legislators raised their hands, seemingly reluctant to take on an issue where wasn’t any consensus, even if some people don’t like the lack of transparency in the current law.

Rep. Mark Semlek (R-Moorcroft) said, “I’m just not sure full disclosure will remedy the situation for the taxpayer. … On the sales side of it, I just don ‘t know that it’s our business to help them determine what the sales price is on property. I think that’s for the [real estate] industry and the private owner to do that.”

Given the lack of members’ interest, the committee decided to do nothing about the issue this year. Sen. Fred Emerich (R-Cheyenne) said he opposed sponsoring a full disclosure bill, but it wasn’t because of any public policy concerns.

“I would suggest we don’t do it. I really would not to like disclosure [because it] would show what a dummy I was when I bought my house,” he said, to much laughter. “It’s a matter or pride.”

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How much should the state of Wyoming compensate someone for wrongfully imprisoning them?

Senate File 30, sponsored by the Joint Judiciary Interim Committee, would pay people exonerated by DNA evidence $100 per day of imprisonment, up to a maximum of $500,000. The payments could not exceed $50,000 per year, up to 10 years.

Rep. Bob Nicholas (R-Laramie) thinks the amount in SF 30 is too high, and he proposed an amendment during Tuesday’s second reading of the bill to limit the total to $250,000. He said the amount shouldn’t be greater than the compensation for negligently taking someone’s life under the Governmental Claims Act.

“If a person negligently runs you off the road and kills you and your entire family, you’re entitled to $250,000, and everyone in the car who passes away is entitled up to $500,000, however, that’s apportioned among the people,” Nicholas said.

Nicholas added, “We’re talking about the complete taking of a life. So what we’re asking ourselves here today is if this mistake of the judicial process” is worth more.

“It’s a tough policy decision for us to say that the taking of a life or the causing of a death is of less value than being wrongfully imprisoned,” he reasoned. “Now, being wrongfully imprisoned is a tragedy. It’s an awful thing to take an innocent person and put them in jail, but it pales by comparison to the complete loss of life.”

Minority Floor Leader Mary Throne (D-Cheyenne) said she agreed that $250,000 under the Governmental Claims Act is too low in the case of loss of life.

“But I submit to you that that is not a policy we should look to for guidance in this instance,” she said. “In a case of actual innocence, it’s not about [the actions] of a truck driver or snowplow driver. It’s a total systemic failure which the public as a whole is responsible for.”

Throne said the breakdown of the judicial system “is much bigger than negligence.”

“It doesn’t happen very often,” she said. “But when it does, we ought to give folks enough of a start to be able to regain their place in society that they shouldn’t have lost in the first place.”

Rep. John Freeman (D-Green River) noted that technology has changed greatly over the years, and can put a person who has been wrongfully locked up at an extreme disadvantage when they are released.

“If we put a person in jail unjustly, when they come out and look at society now, I think their jaw will drop,” Freeman said. “They won’t know where to start. They won’t have any financial resources to go forward.”

He called $500,000 “a reasonable compromise” in the debate over what is a fair amount of compensation.

Rep. Mark Baker (R-Rock Springs) said SF 30 is the product of a lot of work by the interim committee, and noted that such cases of injustice “are few and far between,” and won’t affect Wyoming’s state budget.

The full House defeated Nicholas’ amendment on a voice vote. The third and final reading of the bill is scheduled Wednesday.

As written, the bill would allow for compensation to 63-year-old Andrew Johnson of Cheyenne, who DNA evidence showed last year was wrongfully convicted of the rape of a woman. He spent nearly 24 years in prison before a judge signed an order exonerating him of the crime.

Johnson would have up to two years from the date of the order to file a claim under the bill if it is approved and signed into law by Gov. Matt Mead. He attended a meeting of the House Judiciary Committee last Thursday but did not testify on the bill.

Wyoming would become the 30th state that compensates exonerated people. The amounts vary greatly in other states, ranging from $25,000 plus attorney’s fees in Wisconsin to no caps at all in New York and Texas.

The Legislature debated a similar bill in 2008 but didn’t pass it. The case of Johnson provides a real-life example of the harm the state has done to a man it wrongfully convicted. Throne is right – the breakdown of the justice system in such incidents can’t be compared to negligence that is compensated for under the Governmental Claims Act, even if death is involved.

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Here’s how deep the paranoia about government control runs in the Wyoming House: A bill that will increase the safety of children getting on and off school buses barely passed final reading Monday because some lawmakers viewed it as Big Brother taking over.

House Bill 5 is aimed at preventing tragedies like the one that happened in Crowheart in December 2011, when 11-year-old Makayla Marie Strahle was killed by a truck after she stepped off her school bus – which had flashing red lights – and started to cross a highway near her home in Crowheart.

In this case, the Wyoming Highway Patrol caught the driver responsible, who was barreling down the road at 57 mph in foggy conditions when he hit the victim. But in most “fly-bys” where drivers ignore signals to stop while school buses are loading and unloading, the reckless motorists can’t be identified. Bus drivers are trained to watch the students when they stop, not other vehicles.

About 300 of the 1,200 school buses in Wyoming have installed video cameras inside and outside the vehicle to help capture images of license plates and drivers as evidence, so the offenders can be prosecuted. HB 5 appropriates up to $5 million to outfit the rest of the state’s school bus fleet with cameras.

House Education Committee Chairman Matt Teeters (R-Lingle) said hundreds of fly-bys occur every day, putting students at risk. In districts that have installed the video equipment, it serves both as a deterrent that has lowered the number of violations and as a tool for prosecutors.

A driver convicted of illegally passing a bus that has its “stop” arm activated and flashing red lights is fined $420 for each offense.

HB5 narrowly passed, 32-27, and now heads to the Senate. It’s clearly a safety measure that’s needed, but House opponents tried to characterize it as an expensive, totalitarian invasion of privacy that is against everything Wyoming and America stand for.

“I’m troubled by the largesse of our government, and its ability to have surveillance over our daily lives. … It’s rolling surveillance in every neighborhood in our state,” said House Speaker Tom Lubnau (R-Gillette), who argued that prosecutors could use the tapes to watch and charge other people with crimes allegedly caught on tape besides just the fly-bys.

“I’m amazed by all the Orwellian comparisons that are being made to this bill,” Teeters said, adding that the bus video cameras have a specific target and will not create a treasure trove of other information for prosecutors.

Rep. Hans Hunt (R-Newcastle) said the school district he represents had a major problem with fly-bys, but they solved it without installing cameras by identifying problem areas and removing some bus stops.

“Local control works,” Hunt maintained.

Other Republican legislators agreed, and suggested that any school district that wants to could install the video equipment without being mandated to do so.

Rep. Matt Greene (R-Laramie), one of the most vehement opponents of the bill, said that “every day the NSA spies on more people,” and that shouldn’t be
extended to surveillance by the state of Wyoming.

“We’re videotaping our own people,” he said. “Mandating [the video cameras] is the state saying we will spy on our own citizens.”

Rep. Patrick Goggles, D-Ethete, who represents the school district where the Crowheart student was killed, supported the bill and said the victim’s family would like to see it passed so others do not lose their children to tragedies that could have been prevented.

Lubnau withdrew an amendment that would have killed the bill. He said he wasn’t necessarily asking anyone else to oppose it, but he wanted to register his objections and announce that he was voting no.

The speaker’s opposition must have had some impact, though, because HB5 got 51 votes for introduction and only 32 votes for passage.

I don’t know how anyone could mistake this safety measure for a spying effort. The Education Committee’s bill is a good solution to a major problem, and the idea that it could be turned into a vehicle for legislators to complain about government spying is unbelievable. I hope the Senate doesn’t get bogged down in the same ridiculous debate.

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A DNA bill that couldn’t pass the Wyoming House last year showed Thursday morning that it’s still not ready for prime time.

The Senate Travel, Recreation and Wildlife Committee, picking up some bills that would normally have been assigned to the overloaded Judiciary Committee, heard testimony about “Katie’s Law,” Senate File 47, sponsored by Sen. Leslie Nutting (R-Cheyenne).

Katie’s Law, which has been passed by 22 states, is named after Katie Sepich, who was brutally attacked outside her New Mexico home in August 2003. She was raped, strangled, set on fire and abandoned at an old dump site.

The attacker’s skin and blood were found under the victim’s fingernails. Authorities used a DNA profile to match the evidence with the killer, who was in a New Mexico prison serving a sentence for burglary.

Wyoming already takes DNA profiles of inmates convicted of felonies, but SF 47 would go a step further and allow the state to take DNA samples from individuals arrested for, charged or indicted for felonies, including murder, manslaughter, sexual assault, kidnapping and abduction.

Nutting explained that for states that have passed the law, grants from the federal government have been made available to pay for any extra cost of the DNA testing. She said she doesn’t think it would amount to much additional spending.

But Chairman Bruce Burns (R-Sheridan) said if the Legislature passes the bill and it does not obtain a federal grant, it would amount to an unfunded mandate for the state, and that troubles him.

Some panel members expressed concern that SF 47 contains a list of felonies covered under the bill, which could restrict some other crimes in which testing of suspects charged should occur. But Nutting and her co-sponsor, Rep. Ken Esquibel, D-Cheyenne, told the commitee it was the lack of such a list that led to the defeat of a similar measure in the House last year.

Steve Klein of the Wyoming Liberty Group opposed the bill. The Cheyenne attorney said while SF 47 would allow a suspect who has been found to not have committed a crime should not have to apply to have his or her DNA expunged from the state’s files. He said the process in cases of innocence should be automatic.

“It’s a sad thing to say, but we need to be reminded in our criminal justice system that it’s better for 10 guilty men to go free than to send one innocent man to prison,” Klein said. “People have heard, especially in sexual assault crimes, that DNA is 100 percent accurate. It is accurate as a science, but it is not dispositive in a case. Many remain cases of ‘he said, she said,’ and there are a lot of reasons why an innocent person would not want their DNA collected.”

He said the nation has a “CSI culture” that emphasizes DNA infallibility. “They say, ‘We’ve got your DNA, we’ve gotcha.’ It’s just not true,” Klein said. “People may have had sex, but the DNA doesn’t prove there was an assault.”

Burns said he wants to hear from a Wyoming prosector before taking a vote on the bill. He said the committee will meet again next Tuesday to hopefully get some more information about SF 47