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The Wyoming State Constitution, 2nd Edition by Keiter, Robert B (13th July 2017)

Part Two The Wyoming Constitution and Commentary, Art.I Declaration of Rights

From: The Wyoming State Constitution (2nd Edition)

Robert B. Keiter

(p. 45) Article I  Declaration of Rights

The Wyoming Constitution’s Declaration of Rights, in contrast to the ten federal Bill of Rights amendments, contains thirty-nine separate provisions that enumerate an array of individual rights, several of which are without counterpart in the U.S. Constitution. By placing these extensive individual rights provisions in the first article, the Wyoming framers plainly expressed their belief that liberty, freedom, and equality represented important constitutional values meriting legal protection for the new state’s citizens. In 1890, despite the addition of the Fourteenth Amendment to the U.S. Constitution in 1868, the U.S. Supreme Court still adhered to the view that the federal Bill of Rights was not generally applicable to the states, but rather only constrained the federal government in its relationship with the nation’s citizens. If Wyoming’s citizenry were to enjoy individual constitutional rights at the time of statehood, then those rights must be elaborated in the state constitution and enforced by the state’s courts.

Of course, much has changed since then. Most of the U.S. Constitution’s Bill of Rights provisions now apply to the states through the U.S. Supreme Court’s Fourteenth Amendment incorporation doctrine. And during the 1960s, the U.S. Supreme Court rendered a series of decisions that took an expansive view of the Bill of Rights, extending various rights to criminal defendants to deter aggressive police practices, while also expanding the First Amendment and the Fourteenth Amendment’s due process and equal protection provisions. Although the U.S. Supreme Court has since then taken a more circumscribed view of several Bill of (p. 46) Rights protections, particularly those granting rights to criminal defendants, this federal retrenchment has opened the door for state courts to re-examine and independently interpret their own state constitution’s individual rights provisions. The principal question has been whether these state constitutional rights merely parallel similar federal provisions or whether they grant more protection to citizens. The result has been an extraordinary resurgent interest in state constitutional law, enabling citizens across the country to look both to the U.S. Constitution and state constitutions for protection against government overreaching.

As the courts have sought to harmonize what amount to separate sources of individual rights, two important principles have emerged from this “new judicial federalism.”1 First, the U.S. Constitution sets a floor but not a ceiling on the scope of individual rights; the federal provisions represent the minimum level of protection for individual rights, but the states can exceed that level of protection by construing their state provisions more broadly. In several instances, drawing upon unique language in the Wyoming Declaration of Rights, the Wyoming Supreme Court has reached precisely that conclusion, for example, in the case of its Article 1, section 4 search and seizure jurisprudence and its Article 1, section 14 bail provision rulings.2 Second, invoking the adequate and independent state ground for decision doctrine, the U.S. Supreme Court has ruled that state courts can insulate state constitutional decisions from review by the nation’s highest court by simply indicating through a plain statement that the decision is based on state—not federal—constitutional law (Michigan v. Long, 1983). Acknowledging this principle and its desire to develop its own independent state constitutional doctrine, the Wyoming Supreme Court has stated that when arguments based on parallel federal and state constitutional provisions are presented, it will first examine the state provision to see if it is determinative before turning to the counterpart federal provision (Vasquez v. State, 1999).3

Having signaled its interest in developing Wyoming’s own constitutional jurisprudence, the Wyoming Supreme Court has been at pains to instruct advocates how to frame state constitutional arguments distinct from federal doctrine and precedent. In fact, the court has opined: “The Wyoming Supreme Court continues to be willing to independently interpret the provisions of the Wyoming Constitution. But it is imperative that Wyoming lawyers properly brief this court on relevant state constitutional questions.”4 To that end, the court has (p. 47) offered guidance for asserting a state constitutional argument: “Recourse to the Wyoming Constitution as an independent source for recognizing and protecting the individual rights of our citizens must spring from a process that is articulable, reasonable, and reasoned.”5 Advocates must therefore do more than make “a passing reference to the protections that might be afforded by our state constitution”;6 rather, they must support their contentions “with appropriate constitutional analysis, legal authority, or cogent argument.”7 The concurring opinion in Saldana v. State (1993) provides a roadmap for framing a state constitutional argument, highlighting the following factors: “(1) the textual language; (2) the differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern.”8 Employing these principles, the Wyoming Supreme Court has interpreted several of the Wyoming Constitution’s individual rights provisions to provide greater protection than is available at the federal level. In short, as reflected in the analysis that follows for Article 1, the court is beginning to methodically develop an independent state constitutional jurisprudence.

Section 1  Power inherent in the people.

All power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety and happiness; for the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish the government in such manner as they may think proper.

This section reconfirms the preamble’s assertion that Wyoming state government derives its authority from the people. It also recognizes that the people retain a right to “alter, reform or abolish” state government. The Wyoming Supreme Court, however, has ruled that this right to “alter, reform, or abolish” state government can only be exercised through the prescribed constitutional amendment process, as set forth in Article 20, and not through the constitution’s Article 3, section 53 initiative process (Cathcart v. Meyer, 2004; Maxfield v. State, 2013). To support this conclusion, the court favorably quotes the following treatise language: “the word ‘constitution’ as applied to the organization of our federal and state governments, always implies a written document which is understood to have been enacted by the direct action of the people, providing for the form of their government and defining the powers of the several (p. 48) departments within it, thus creating a fundamental law which is absolute and unalterable except through amendment by the people from which it emanated.”9

Section 2  Equality of all.

In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.

This section is the first of several constitutional provisions that explicitly incorporate equality principles into the Wyoming Constitution. This equality mandate extends to all people and recognizes an inherent right to “life, liberty and the pursuit of happiness.” As the Wyoming Supreme Court has noted, the language is quite similar to that found in the Declaration of Independence (Hagen v. Culinary Workers Alliance Local No. 337, 1952), which the court has suggested constitutes a source of “fundamental” or “inalienable” rights entitled to strict judicial protection as part of the liberty ensured under this provision (DS v. Dept. of Public Assistance and Social Services, 1980). Among these fundamental rights are the right to raise one’s children and the right to associate with one’s family (DS v. Dept. of Public Assistance and Social Services, 1980; LP v. Natrona County Dept. of Public Assistance and Social Services, 1984). Unlike the U.S. Constitution, this provision recognizes the “pursuit of happiness” as an inherent right, but to merit judicial protection such right may be limited to liberty interests recognized at common law as essential to the orderly pursuit of happiness (Hede v. Gilstrap, 2005).

This section should be read in conjunction with Article 1, sections 3 and 34, as well as Article 3, section 27, which specifically limits legislative authority in more than thirty-seven enumerated instances. These provisions, along with the constitutional convention’s landmark decision to extend voting rights to women (Art. 6, sec. 1), reflect a serious and comprehensive constitutional commitment to the principle of equality. Justice Fred Blume, writing for the Wyoming Supreme Court, endorsed this understanding of the constitution when he concluded that “the spirit of our Constitution [is] to give all persons equal opportunities in conducting their business and the equal protection of the laws” (Pirie v. Kamps, 1951). Indeed, the Wyoming Supreme Court has asserted that “the Wyoming Constitution is construed to protect people against legal discrimination more robustly than does the federal constitution” (Johnson v. State of Wyoming Hearing Examiner’s Office, 1992; Allhusen v. State, 1995; Bird v. Wyoming Bd. of Parole, 2016). One who mounts an equal protection challenge, however, must carry the burden of persuasion and establish that the classification is unconstitutional beyond a reasonable doubt (Allhusen v. State, 1995; Hoem v. State, 1988).

(p. 49) In equal protection cases, as a threshold matter, the challenger must show that the classification at issue results in disparate treatment between similarly situated classes of people. In Reiter v. State (2001), the Wyoming Supreme Court explained that “all persons similarly situated shall be treated alike, both in the privileges conferred and in the liabilities imposed.” In Bird v. Board of Parole (2016), the court elaborated that the term “similarly situated” must be defined in terms of the governmental purpose behind the classification at issue, concluding that prisoners sentenced to a life term and those sentenced to a life without parole term were similarly situated. In Reiter, however, the court concluded that criminal defendants acquitted due to mental illness who faced commitment to a psychiatric institution were not similarly situated to noncriminal individuals facing civil commitment to the same institution. The court likewise distinguished between convicted felons and misdemeanants in rejecting an equal protection challenge to the conditions of confinement (Tilley v. State, 1996). Failure to meet this threshold standard by demonstrating creation of a distinct classification between individuals will obviate an equal protection claim (Newport International Univ., Inc. v. State Dept. of Education, 2008).

Once a classification is established, the Wyoming Supreme Court has employed conventional federal two-tier equal protection analysis (Greenwalt v. Ram Restaurant Corp. of Wyoming, 2003; Newport International Univ., Inc. v. State Dept. of Education, 2008). If a suspect class or fundamental right is involved, the court applies a strict scrutiny standard of review that requires a showing of a compelling state interest and necessary means (In re Honeycutt, 1995; Washakie County School Dist. No. One v. Herschler, 1980). But if neither a suspect class nor a fundamental right is involved, the court applies a rational basis test to ensure that the classification is rationally related to a legitimate state interest (Allhusen v. State, 1995; Meyer v. Kendig, 1982). In any event, the rights protected under this provision are not absolute, but are subject to state regulation in the public interest (Haskins v. State ex rel. Harrington, 1973; State v. Langley, 1938). Further, this section does not require that the law treat everyone with absolute equality, but it does prohibit arbitrary and invidious discrimination (Cavanagh v. State, 1973).

Under the doctrine of traditional scrutiny, the Wyoming Supreme Court has applied a rational basis standard of review, similar to the one applied at the federal level: “[T]‌here must be some difference which furnishes a reasonable basis for different legislation as to different classes, and the differences must not be arbitrary and without just relation to the subject of the legislation” (Hoem v. State, 1988; Mountain Fuel Supply Co. v. Emerson, 1978; Greenwalt v. Ram Restaurant Corp. of Wyoming, 2003). However, to emphasize that Wyoming equal protection analysis is more robust than the federal standard, the court has developed a rigorous four part test to assess the validity of legislative classifications:

(1) what class is harmed by the legislation and has that group been subjected to a tradition of disfavor by our laws; (2) what is the public purpose to be served (p. 50) by the law; (3) what is the characteristic of the disadvantaged class that justifies disparate treatment; and (4) how are the characteristics used to distinguish people for disparate treatment relevant to the purpose the challenged law purportedly intends to serve. (Allhusen v. State, 1995; Johnson v. State of Wyoming Hearing Examiner’s Office, 1992)

The U.S. Supreme Court also applies a rational basis standard in assessing Fourteenth Amendment equal protection claims, ordinarily deferring to the legislature and even hypothesizing reasons why the legislature might have selected particular classifications (Williamson v. Lee Optical Co., 1955; New Orleans v. Dukes, 1976).10 The Wyoming Supreme Court, however, has often examined challenged state legislative classifications more carefully. In Hoem v. State (1988), for example, the court ruled that the Medical Review Panel Act, which required a preliminary administrative review of medical malpractice tort claims but not of other tort claims, violated equal protection because there was no firm evidence in the legislative record establishing a health care crisis in the state or that this program would advance the quality of health care.11 In Johnson v. State of Wyoming Hearing Examiner’s Office (1992), which invalidated a law depriving minors of their driver’s licenses for any alcohol-related offense, the court held that legislative classifications must rest on real rather than conjectural differences to protect against laws based on unjustified prejudices or stereotypes. And in Allhusen v. State (1995), the court invalidated a professional counselling licensure statute that distinguished between public and private sector counsellors, finding that the distinction did not rationally advance the state’s public health and safety interests. (See also Nehring v. Russell, 1978; Phillips v. ABC Builders, Inc., 1980; Art. 1, sec. 34 and cases cited therein.)

Directly employing U.S. Supreme Court precedent, the Wyoming Supreme Court has ruled that a strict scrutiny standard of judicial review applies whenever a fundamental liberty interest is infringed by a legislative classification (DS v. Dept. of Public Assistance and Social Services, 1980; Washakie County School Dist. No. One v. Herschler, 1980). Similarly, strict scrutiny analysis applies when a legislative classification burdens a suspect class (Washakie County School Dist. No. One v. Herschler, 1980). In strict scrutiny analysis, rather than reviewing the challenged classification under a rational basis standard, the court inquires whether the classification is necessary to achieve a compelling state interest and whether equally effective but less restrictive alternatives are available to accomplish the same objective (Washakie County School Dist. No. One v. Herschler, (p. 51) 1980). As noted, the court has found that the right to raise one’s children, as well as the right to associate with one’s family, are fundamental rights entitled to strict judicial protection (DS v. Dept. of Public Assistance and Social Services, 1980; LP v. Natrona County Dept. of Public Assistance and Social Services, 1984). Looking to other provisions in the Wyoming Constitution as a source for fundamental rights, the court has also found that the opportunity for an adequate public education and access to the courts are fundamental rights (RM v. Washakie County School Dist. No. One, 2004; Washakie County School Dist. No. One v. Herschler, 1980; Mills v. Reynolds, 1992). Moreover, the court has found that wealth-based classifications, at least in the field of public education, should be treated as suspect and subject to strict scrutiny. But it has not subjected age-based classifications to strict scrutiny (Giles v. State, 2004; Hansen v. State, 1995).

Although not always using the language of strict scrutiny, the Wyoming Supreme Court has struck down classifications that disadvantage illegitimate children and common law spouses (Jordan v. Delta Drilling Co., 1975; Bowers v. Wyoming State Treasurer, 1979). Remarkably, though, despite explicit constitutional language ensuring gender equality, the court has not subjected gender-based classifications to strict scrutiny. Instead, selectively drawing on U.S. Supreme Court precedent, the court has established the standard that gender classifications must not be “entirely unrelated to any differences between men and women” and that such classifications can be sustained if they “realistically reflect the fact that sexes are not similarly situated in these circumstances” (A v. X, Y, and Z, 1982). The court has not had occasion to address gay rights claims under this section, but the U.S. Supreme Court has ruled that same-sex marriage is a right protected under federal due process and equal protection principles (Obergefell v. Hodges, 2015).12

Section 3  Equal political rights.

Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than individual incompetency, or unworthiness duly ascertained by a court of competent jurisdiction.

This section explicitly ensures Wyoming citizens equal political rights regardless of race, color, sex, or any other condition, except in cases of “individual incompetency or unworthiness” based on a judicial determination. Significantly, this provision recognizes the existence of natural rights, while suggesting that such rights are protected by ensuring equal participation in the political process. (p. 52) This section should be read in conjunction with Article 6, section 1, which specifically provides for the political rights of women. The Wyoming Supreme Court has read these provisions to mean that “women in Wyoming are men’s equals before the law” and thus entitled to serve on juries (State v. Yazzie, 1950).

This section should also be read in conjunction with Article 1, section 2. For all practical purposes, the Wyoming Supreme Court has read these two sections interchangeably and applied the same general interpretive principles. Unless a fundamental right or suspect class is involved, the court will apply a reasonableness test to assess the validity of legislative classifications. But even in the absence of a fundamental right or suspect class, the court has struck down legislative classifications where there was no concrete proof in the legislative record of a real problem (Hoem v. State, 1988), or where the legislature was acting on the basis of stereotypes (Johnson v. State of Wyoming Hearing Examiner’s Office, 1992).

The Wyoming Supreme Court has ruled that holding public office is one of the “political rights and privileges” protected by this section. (See also Art. 6, sec. 1). Relying on the language prohibiting laws affecting “political rights” for “any circumstance or condition whatsoever other than individual incompetency, or unworthiness duly ascertained by a court of competent jurisdiction,” the court invalidated a successful ballot initiative that imposed term limits on state legislative offices, ruling that incumbency was a constitutionally prohibited condition for holding such an office (Cathcart v. Meyer, 2004). Subsequently, the court also invalidated term limit requirements for four of the state’s five statewide offices, but did not decide whether the term limit provision applied to the governor’s office (Maxfield v. State, 2013; see also Art. 4, sec. 11). However, the state may impose reasonable restrictions on an individual’s personal and political rights, including a prohibition against holding incompatible public offices, so long as it can demonstrate a compelling state interest (Haskins v. State ex rel. Harrington, 1973).

In Sanchez v. State (1977), the Wyoming Supreme Court ruled that the “constitutional guarantee of equal rights under the law … will not tolerate a criminal law so lacking in definition that each defendant is left to the vagaries of individual judges and juries.” But in Hennigan v. State (1987), the court ruled that the option of initiating criminal prosecution by grand jury indictment rather than by an information after a preliminary hearing does not violate equal protection “solely because of disparate treatment unless the denial is based upon an identifiable class.”

Section 4  Security against search and seizure.

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized.

(p. 53) This section recognizes an individual right to privacy, while establishing the procedures by which government may penetrate that privacy in order to search and seize persons, places, and effects (State v. George, 1924; Ortega v. State, 1983).13 In the early twentieth century, when the Wyoming Supreme Court was composed of former delegates to the constitutional convention, the court understood this section to protect liberty more stringently than the level of protection provided by the Fourth Amendment of the U.S. Constitution. That early court adopted the equivalent to Miranda rights and the exclusionary rule more than fifty years before the federal judiciary followed suit (Maki v. State, 1911; see also State v. Peterson, 1920). Since then, emphasizing this section’s explicit affidavit requirement, the court has reaffirmed that this provision provides greater protection against governmental searches or seizures than is available under the federal constitution (Smith v. State, 2013; Abeyta v. State, 2007; Hixson v. State, 2001; Vasquez v. State, 1999). According to the court, the “requirement of an affidavit ‘strengthens’ the Wyoming citizen’s rights by creating a permanent record” (Hixson v. State, 2001; Vasquez v. State, 1999; State v. Peterson, 1920). In Vasquez v. State (1999), applying principles of state constitutional analysis, the court concluded that this section affords greater protection against unlawful automobile searches than is available under the Fourth Amendment, requiring that “a search be reasonable under all of the circumstances as determined by the judiciary, in light of the historical intent of our search and seizure provision” (O’Boyle v. State, 2005).14 But in cases where the affidavit requirement does not apply or when the defendant fails to make an Article 1, section 4 argument, the court will generally follow federal Fourth Amendment precedent to evaluate the reasonableness of a search or seizure (Fertig v. State, 2006; Barch v. State, 2004).

The warrant requirement applies only to searches, seizures, and arrests in the constitutional sense. A search occurs when the government intends to find something and intrudes upon a reasonable expectation of privacy by searching persons, houses, papers, and effects (Croker v. State, 1970; Ortega v. State, 1983). An arrest occurs when an officer intends to seize or control a person and actually or constructively seizes or detains him or her or when an officer intends to seize and the person voluntarily submits (Rodarte v. City of Riverton, 1976; Simonds v. State, 1988; Phillips v. State, 1989). A person is seized when, looking at the totality of the circumstances, a reasonable person would not believe that he or (p. 54) she was free to leave during the incident (Wilson v. State, 2009; Wilson v. State, 1994). Once the object of a search warrant has been identified and seized, the officers cannot continue the search absent a valid reason (Taylor v. State, 2000; Callaway v. State, 1998). The reasonableness of a search, seizure, or arrest is a question of law reviewed de novo by the supreme court (Hughes v. State, 2003; Gronski v. State, 1996; State v. George, 1924).

The Wyoming Supreme Court begins search and seizure analysis by determining whether the government is unreasonably intruding upon an individual’s legitimate expectation of privacy (Beadles v. State, 1999; Wilde v. State, 1985; Ortega v. State, 1983). Without a reasonable expectation of privacy, a search is not a search in the constitutional sense and is thus reasonable without probable cause or a warrant. With a reasonable expectation of privacy, a search or arrest must be preceded by a showing of probable cause and a warrant or an exception to the warrant requirement. A legitimate expectation of privacy requires a showing of both an actual subjective expectation of privacy and a reasonable expectation of privacy that society recognizes (Barekman v. State, 2009; Dean v. State, 1993). To make this determination, the court examines four factors: the precautions taken to maintain privacy; the likely intent of the constitutional framers; the property rights a claimant possesses in the invaded area; and the legitimacy of the individual’s possession of or presence on the property (Parkhurst v. State, 1981; Pellatz v. State, 1986; Putnam v. State, 2000; Andrews v. State, 2002).15 The court’s decisions have recognized a hierarchy of privacy protection, giving a personal residence the highest level of protection and less protection to vehicles and other property, such as wallets, backpacks, and garbage (Holman v. State, 2008; Page v. State, 2003; Morris v. State, 1995). The court has held that a passenger reasonably could expect the car in which he or she was a guest would be free from state encroachment but cannot object to a search when the owner gives consent (MacLaird v. State, 1986; Parkhurst v. State, 1981). Similarly, a husband’s refusal to consent cannot “dilute” a wife’s consent to a search of their home when both own the property (City of Laramie v. Hysong, 1991; see also Mares v. State, 1972).

If the expectation of privacy is reasonable, the Wyoming Supreme Court then determines whether probable cause for the search, seizure, or arrest exists. Probable cause is a question of law governed by the standard of “reasonableness under all the circumstances,” which involves review of the factual showing in each case (State v. Peterson, 1920; Smith v. State, 1976; Vasquez v. State, 1999; O’Boyle v. State, 2005). In Smith v. State (1976), the court elaborated that the test of probable cause is a “factual situation sufficient to warrant a reasonably cautious and prudent man to have a belief that there was a crime being committed or [that one] had been committed” and that the person to be arrested or place to be (p. 55) searched or seized was involved in that crime. Probable cause for an arrest, however, cannot be less stringent than that needed to justify the issuance of a warrant. Overruling the Wyoming Supreme Court in Whiteley v. Warden, Wyoming State Penitentiary (1971), the U.S. Supreme Court reasoned that resorting to the procedures for obtaining an arrest warrant would be discouraged if the standard needed to establish probable cause for a warrantless arrest was less stringent than that needed for a warrant.

To establish probable cause justifying issuance of a search or arrest warrant, this section requires a sworn affidavit (State v. Peterson, 1920; Smith v. State, 2013). The affidavit requirement provides two important protections for individuals: it guarantees that an impartial judge will determine probable cause based upon a review of sworn testimony, and it ensures that this testimony will be preserved for trial and appellate proceedings (Smith v. State, 2013; Rodarte v. City of Riverton, 1976; Pellatz v. State, 1986). To encourage law enforcement to obtain search warrants before conducting searches, the Wyoming Supreme Court has held that probable cause to justify issuance of a search warrant may be based on evidence that would not be legally competent in a criminal trial, such as hearsay (Croker v. State, 1970; McCutcheon v. State, 1979; Bouch v. State, 2006; Abeyta v. State, 2007). Affidavits in support of a search warrant must include sufficient information to “warrant a reasonably prudent and cautious man to believe that a crime has been committed and that there is evidence of the crime at the place to be searched,” including general facts and circumstances concerning the premises, person, place, or thing to be searched (Davis v. State, 1993; TJS v. State, 2005; Cordova v. State, 2001). The Wyoming Supreme Court, noting that judicial officials are limited to the information contained in the proffered affidavit in determining whether probable cause exists, reviews the sufficiency of an affidavit under a “totality of the circumstances” test, giving great deference to the issuing judge’s determination (Abeyta v. State, 2007; Hixson v. State, 2001; Cordova v. State, 2001; Southworth v. State, 1996). The court has found that a recorded telephone conversation between a police officer under oath and a judicial official transcribed into writing met the affidavit requirement when employed to test a defendant’s blood alcohol content (Smith v. State, 2013). Moreover, the court requires that the warrant must particularly describe the items to be seized, thus precluding any general searches (Taylor v. State, 2000; Hall v. State, 1996).

The Wyoming Supreme Court has sustained warrantless arrests and detentions as reasonable under different legal standards, each of which depends upon the “totality of the circumstances” surrounding the police-civilian encounter. The cases have addressed three quite different scenarios: (1) an arrest, which requires probable cause justification that the officer believes the individual has committed a crime (Stowe v. State, 2014; Ostrowski v. State, 1983); (2) an investigatory stop, which is a less intrusive seizure requiring only a reasonable suspicion that the person has committed a crime (Jennings v. State, 2016; Lovato v. State, 2012); (p. 56) and (3) a consensual encounter, which involves no restraint on the individual’s liberty and is based on voluntary cooperation with noncoercive questioning (Eckenrod v. State, 2003; Brown v. State, 1997; Wilson v. State, 1994). To determine whether there was probable cause to justify an arrest, the court examines the facts and circumstances surrounding the incident, including the trustworthiness of the information relied upon by the police officer, to ensure a reasonably cautious or prudent person would believe the suspect had committed a crime (Eckenrod v. State, 2003; Goettl v. State, 1992). At a minimum, probable cause for a warrantless arrest must logically connect the person arrested with the crime (Rodarte v. City of Riverton, 1976). In detention cases, the court has held that warrantless traffic stops are presumptively unreasonable unless the officer has a “reasonable suspicion” based on “specific, articulable facts and rational inferences” that the person has committed or may be committing a crime (Jennings v. State, 2016; Venegas v. State, 2012; Lovato v. State, 2012). In O’Boyle v. State (2005), the court applied its “reasonable under all of the circumstances” test to find that a pretextual traffic stop along a major interstate highway for speeding and the sustained questioning of the driver in the police car as part of a narcotics investigation constituted an illegal detention in violation of this section.

The Wyoming Supreme Court has consistently treated a warrantless search as unreasonable per se unless the government establishes by a preponderance of the evidence that the warrantless search fits within one of the judicially created exceptions (Parkhurst v. State, 1981; Stamper v. State, 1983; Ortega v. State, 1983; City of Laramie v. Hysong, 1991; Morris v. State, 1995; Hughes v. State, 2003; Pena v. State, 2004). Whether a warrantless search was permitted by an exception is a question of fact dependent upon all of the facts or circumstances viewed in their entirety (Hughes v. State, 2003; City of Laramie v. Hysong, 1991).16 These exceptions are based on claims of exigent circumstances or diminished expectations of privacy, which the court has enumerated in the following terms:

“1) search of an arrested suspect and the area within his control; 2) a search conducted while in hot pursuit of a fleeing suspect; 3) a search and/or seizure to prevent the imminent destruction of evidence; 4) a search and/or seizure of an automobile upon probable cause; 5) a search which results when an object is inadvertently in the plain view of police officers while they are where they have a right to be; 6) a search and/or seizure conducted pursuant to consent; and 7) a search which results from an entry into a dwelling in order to prevent loss of life or property” (Hughes v. State, 2003; Andrews v. State, 2002; Dickeson v. State, 1992).

(p. 57) Under these exceptions, warrantless searches are permitted to search a validly arrested person and the area within his or her control (Vasquez v. State, 1999; Brown v. State, 1987), to search garbage (Barekman v. State, 2009; Croker v. State, 1970), to search and seize evidence that is in plain view (Jones v. State, 1995; Pellatz v. State, 1986), to conduct an inventory search (Johnson v. State, 2006; Williams v. State, 1976), while in pursuit of a fleeing suspect (Weddle v. State, 1980), to preserve possible evanescent evidence even when no arrest has been made (Sen v. State, 2013; Hughes v. State, 2003; Starr v. State, 1995; Patterson v. State, 1984), and to prevent loss of life or property (Campbell v. State, 2014; Pena v. State, 2004; Ortega v. State, 1983). The court has also recognized a “community caretaker” exception to justify a warrantless search, but this exception primarily applies to police encounters with citizens in public places and vehicles when their welfare or safety is a concern but not necessarily an emergency (Campbell v. State, 2014; Morris v. State, 1995). Moreover, the court accords automobiles a lower level of protection than a house or dwelling; it assesses warrantless searches of cars under a “totality of the circumstances” standard to determine whether the officer had reasonable probable cause to believe the car contained contraband or evidence of a crime (Dimino v. State, 2012; Gronski v. State, 1996; Hunter v. State, 1985).

In a case of first impression, the Wyoming Supreme Court has sustained a warrantless administrative search in the public school setting. In Hageman v. Goshen County School District No. 1 (2011), the court upheld the school district’s policy requiring students participating in extracurricular activities to consent to random alcohol and drug testing. Applying its “reasonable under all of the circumstances” standard, the court weighed three factors to evaluate the lawfulness of the policy: the nature of the personal privacy rights at stake; the scope and manner of the alleged governmental intrusion; and the nature of the public interest and the means chosen to further that interest. While acknowledging that this section protects students against unreasonable searches and seizures, the court concluded that these students had diminished privacy expectations, the degree of invasion on those rights was limited, and the school district had a compelling interest in providing for the safety and welfare of its students.17

This section’s warrant requirement can be waived by voluntary consent. However, the Wyoming Supreme Court does not lightly assume such a waiver:

“[A]‌ waiver of constitutional rights under our constitution must appear by clear and positive testimony, and, if a search or seizure is based upon the proposition that consent was given, there should be no question from the evidence that consent was ‘really voluntary and with a desire to invite search [or further questioning], and not done merely to avoid resistance.’ Acquiescence and nonresistance (p. 58) have not been deemed sufficient under Wyoming law to establish consent.” (O’Boyle v. State, 2005; Seymour v. State, 2008)

d

Under both the federal and state constitutions, whether consent is voluntary is a question of fact determined by the “totality of the circumstances” (Letta v. State, 2009; Pena v. State, 1990). The state has the burden of proving that consent was given voluntarily (Stamper v. State, 1983; Campbell v. State, 2004), and the supreme court will usually defer to the trial court’s fact finding, recognizing that the trial judge had the opportunity to assess the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions (Campbell v. State, 2004). Factors used to determine voluntariness include how the request to search was phrased, whether the individual was told he or she could refuse the request, the demeanor of the law enforcement officer, the presence of other officers, the length of the detention, and whether coercive factors were involved (Letta v. State, 2009; Youeth v. State, 2009). The consent may be limited by authorizing a search only of designated items, specific places, specific purposes, or for a specific time (Amin v. State, 1985).

The Wyoming Supreme Court interprets the “plain view” doctrine as an exception to this section’s warrant requirement, permitting law enforcement officials to seize incriminatory evidence discovered in a place where they have the right to be (Jones v. State, 1995).18 The doctrine springs from the proposition that “when an officer lawfully occupies the vantage point from which he can observed possible evidence in plain view, there is no search, reasonable or unreasonable” (McDermott v. State, 1994). It reflects a balancing of individual privacy interests, which “are merely those of possession and ownership” after a police officer has observed an object in plain view, against legitimate governmental interests in preserving potential evidence and ensuring public safety (Jones v. State, 1995). To determine whether the plain view doctrine applies, the court has identified three requisite factors: “(1) the officer must not have violated the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed; (2) the incriminating character of the evidence must be immediately apparent; and (3) the officer must have a lawful right of access to the object itself” (Hixson v. State, 2001; Taylor v. State, 2000; Starr v. State, 1995; Kish v. State, 1982).

(p. 59) The remedy for violation of this section is the suppression under the exclusionary rule of unconstitutionally acquired evidence (Morris v. State, 1995; Brown v. State, 1987; Goddard v. State, 1971). But the admission of unconstitutionally acquired evidence may be declared harmless if the Wyoming Supreme Court believes the accused would have been convicted even had the evidence been suppressed (Neilson v. State, 1979).

Section 5  Imprisonment for debt.

No person shall be imprisoned for debt, except in cases of fraud.

This section prohibits imprisonment for debt, except for fraud. It is based on the principle that the civil law can compel payment of just debts where there is an ability to pay, but the criminal law should not be invoked absent fraud (State v. Posey, 1957). Imprisonment for deceitfully issuing an insufficient funds check does not violate this section because the element of deceit constitutes fraud (State v. Laude, 1982). A civil contempt incarceration order for failure to pay court-imposed costs does not implicate this section (GGV v. JLR, 2005).

Although early Wyoming case law held that imprisonment for the failure to pay a fine is not considered an imprisonment for debt (In re MacDonald, 1893), the U.S. Supreme Court has prohibited imprisonment solely due to lack of resources to pay a fine or restitution (Bearden v. Georgia, 1983). The Wyoming Supreme Court has similarly indicated that capacity to pay must be shown before imprisonment for failure to pay a criminal fine or restitution order (Seaton v. State, 1991; see also Schiefer v. State, 1989).

Section 6  Due process of law.

No person shall be deprived of life, liberty or property without due process of law.

This section prevents the state from depriving a person of life, liberty, or property without due process of law. Although the language in this provision parallels the federal due process clause, the Wyoming Supreme Court has held that it provides more protection for individuals than does its federal counterpart (Washakie County School Dist. No. One v. Herschler, 1980; White v. State, 1989; Cheyenne Airport Bd. v. Rogers, 1985). For both federal and state due process purposes, state action is a necessary element in a due process claim (Hatfield v. Rochelle Coal Co., 1991).19 And in both cases, due process has substantive and procedural dimensions that limit the state’s police power, which is otherwise (p. 60) recognized in the Wyoming Constitution (State v. Langley, 1938; Cheyenne Airport Bd. v. Rogers, 1985).20 As a general rule, due process constrains state authority by requiring the purpose of a statute to be a legitimate exercise of police power, by requiring that the means employed by the statute are designed to accomplish that purpose, and by preventing the state from intruding into particular areas of liberty without sufficient justification (State v. Langley, 1938). In short, the due process requirement prevents arbitrary action by the state (White v. State, 1989).

Procedural due process ensures fair play, regularity, and consistency in governmental proceedings, basically requiring the state to utilize certain procedures before terminating or diminishing a protected life, liberty, or property interest. It generally applies to proceedings before judicial or quasi-judicial tribunals (State v. Langley, 1938) as well as arbitration panels (Pecha v. Smith, Keller & Associates, 1997). It ensures that any party summoned before the state’s courts must have minimum contacts with the state for personal jurisdiction to attach (Cheyenne Publishing, LLC v. Starostka, 2004; O’Bryan v. McDonald, 1998).21 The party alleging a procedural due process deprivation has the burden of demonstrating a protected interest and that the interest has been impermissibly affected by the state (Meyer v. Norman, 1989; DH v. Wyoming Dept. of Family Services, 2004). Parental and familial association rights are deemed fundamental liberty interests, thus the state must meet the clear and convincing evidentiary standard to terminate these rights (In re “H” Children, 2003; RS v. Johnson County Dept. of Family Services, 1999; In re GP, 1984).22 Although the Wyoming Constitution guarantees citizens the right to bear arms (Art. 1, sec. 24), carrying a concealed weapon does not constitute a protected liberty or property interest, and the state can deny a concealed carry permit application to a convicted misdemeanant without providing the applicant a hearing (King v. Wyoming Division of Criminal Investigation, 2004). For public employees facing termination, a statutory provision or an employment contract can create a property interest to which due process rights attach (Lucero v. Mathews, 1995; Town of Upton v. Whisler, 1992; Metz v. Laramie County School Dist. No. 1 (2007)). Public school students cannot claim a protected property interest in participating in extracurricular activities (Hageman v. Goshen County School Dist. No. 1, 2011).

(p. 61) Procedural due process is based upon the principle of fundamental fairness (Munoz v. Maschner, 1979), which requires adequate notice and the opportunity to be heard at a meaningful time and in a meaningful manner (ELA v. AAB, 2016; Patterson v. State, 2012; In re “H” Children, 2003; Robbins v. South Cheyenne Water and Sewage Dist., 1990). The notice and hearing must be reasonable under the circumstances given “the nature of the proceeding and the character of the rights affected” (Laughter v. Bd. of County Commissioners of Sweetwater County, 2005). Notice must be given to all individuals who might be found personally liable in the proceedings (Pecha v. Smith, Keller & Associates, 1997); failure to provide notice will deprive a court of personal jurisdiction over the individual (BLM v. State of Wyoming, 1995). Adequate notice must afford a reasonable opportunity to know the claims of the opposing party and to meet them (State Dept. of Revenue and Taxation v. Andrews, 1983; White v. Bd. of Trustees, 1982). The adequate notice requirement is violated if a person is not apprised of the evidence upon which an issue is to be decided (Holm v. State, 1965) or if a law is unconstitutionally vague because reasonable people must guess at the meaning (Griego v. State, 1988; Sorenson v. State, 1979; Sanchez v. State, 1977; State v. Gallegos, 1963).23 The opportunity-to-be-heard requirement may be violated if a law creates an irrebuttable presumption that may not be accurate when the means exist to make an accurate determination (Moreno v. State Dept. of Revenue and Taxation, 1989; Vlandis v. Kline, 1973); when an improper ex parte communication is used during litigation (Lawrence-Allison and Associates West v. Archer, 1989; Story v. State, 1990); when an individual is not allowed to confront an adverse witness (Holm v. State, 1965); or if the jury is not permitted to hear an appropriate theory-of-defense instruction (O’Brien v. State, 1986). These procedural due process rights may be waived, but the waiver must be intentional and unequivocal (Verheydt v. Verheydt, 2013).

Substantive due process protects a person’s life, liberty, and property interests against illegitimate governmental intrusion (Bulova Watch Co. v. Zale Jewelry Co. of Cheyenne, 1962; AT&T Communications v. State Bd. of Equalization, 1989; Moreno v. State Dept. of Revenue and Taxation, 1989). According to the Wyoming Supreme Court, the degree of judicial protection depends on the quality of the individual interest, which determines the level of scrutiny courts should use to examine the state’s justification. The critical threshold question is whether the affected individual interest should be deemed fundamental and thus entitled to maximum protection (Nulle v. Gillette-Campbell Fire Bd., 1990; Moreno v. State Dept. of Revenue and Taxation, 1989). If the interest is not deemed fundamental, then the court merely examines the law to ensure that it promotes a legitimate state objective by reasonable means (Moreno v. State Dept. of Revenue and (p. 62) Taxation, 1989). Economic or social welfare interests typically are not deemed to be fundamental rights, thus governmental regulations or intrusions on these interests are examined with minimum scrutiny, as is true, for example, when zoning regulations are challenged on due process grounds (Laughter v. Bd. of County Commissioners of Sweetwater County, 2005; Bd. of County Commissioners of Teton County v. Crow, 2003). On the other hand, liberty interests, such as familial association rights, typically are deemed to be fundamental, and governmental intrusions are examined with maximum or strict scrutiny (Michael v. Hertzler, 1995). The court uses strict scrutiny to protect fundamental liberty interests by determining if the intrusion is necessary to achieve a compelling state interest and if there is no less onerous alternative by which the objective may be met (Cheyenne Airport Bd. v. Rogers, 1985; Washakie County School Dist. No. One v. Herschler, 1980). The court may also examine how the law is applied against an interest in life, liberty, or property to ensure against arbitrariness by the state (DS v. Dept. of Public Assistance and Social Services, 1980).

Substantive due process should be regarded as a flexible concept, which has been used to recognize and protect new constitutional values. It protects against state intrusion into enumerated and unenumerated rights. In White v. State (1989), the Wyoming Supreme Court suggested that separate provisions in the state constitution, such as Article 1, section 8 guaranteeing equal access to the courts, provide a basis for defining fundamental liberty interests.24 And the court has deemed the parent-child relationship and the right to associate with one’s family to be fundamental liberty interests even though neither of these interests are enumerated rights under the constitution (DH v. Wyoming Dept. of Family Services, 2004; DS v. Dept. of Public Assistance and Social Services, 1980; Nulle v. Gillette-Campbell Fire Bd., 1990). Moreover, the court has indicated that fundamental liberty interests can be determined by balancing the natural or inherent rights of the people and the police power of the state (State v. Langley, 1938). Natural rights are expressly recognized in the constitution (Art. 1, sec. 3) and figured explicitly in the constitutional debates (Journal, p. 616). According to the constitutional preamble, natural rights preceded government, and government was instituted, in part, to protect those rights (State v. Langley, 1938). Although not easily explained or enumerated, natural rights are necessary for an individual’s sense of personal dignity and happiness (Nulle v. Gillette-Campbell Fire Bd., 1990; see also Art. 1, sec. 36).

Due process arguments have also been asserted in cases challenging criminal convictions, usually in tandem with arguments advanced under more specific constitutional provisions protecting the rights of criminal defendants. For the most part, the Wyoming Supreme Court has held that the due process clause does not afford criminal defendants any greater rights than those found under (p. 63) other constitutional provisions (Sen v. State, 2013), and it has ordinarily equated this dimension of the state’s due process jurisprudence with federal precedent (Mersereau v. State, 2012). In Kovacs v. State (2013), for example, the court rejected the argument that the state due process clause imposed greater evidentiary disclosure obligations on the prosecution than are required under the federal due process clause. On occasion, though, the court has found state due process violations, as in Black v. State (1991), where it held that the due process clause precludes the pre-arrest, coercive interrogation of a suspect, or Fletcher v. State (2010), which held that “competency to stand trial is an aspect of substantive due process.” For additional analysis of the rights available to criminal defendants, see the discussion in Article 1, sections 4, 9–14.

Furthermore, the Wyoming Supreme Court has invoked due process principles to test the validity of legislative delegations of authority to private entities (Newport International Univ., Inc. v. State Dept. of Education, 2008; see also Art. 2, sec. 1; Art. 3, sec. 1).

Section 7  No absolute, arbitrary power.

Absolute, arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.

This section prohibits the state from exercising “absolute, arbitrary power” over any person, even when sanctioned by an overwhelming majority of citizens. The language of this section, which does not have a counterpart in the federal Constitution, includes elements of due process and equal protection. In fact, the Wyoming Supreme Court has discussed all of these provisions interchangeably, often without clearly distinguishing among them (Allhusen v. State Mental Health Professions Licensing Bd., 1995). This section, therefore, should be read in conjunction with Article 1, sections 3, 6, and 34, and Article 3, section 27.

The Wyoming Supreme Court has adopted the general principle that this section does not prohibit reasonable exercises of the state’s police power. The critical questions are whether the state is exercising a legitimate police power and whether the means used to accomplish its objectives are reasonable (State v. Langley, 1938; Bulova Watch Co. v. Zale Jewelry Co., 1962). Moreover, the court has applied this same reasonableness requirement to statutory classifications challenged under this section (Mountain Fuel Supply Co. v. Emerson, 1978; Nation v. Giant Drug Co., 1964). The cases also recognize a presumption of constitutionality, suggest a judicial willingness to hypothesize supporting facts, and place the burden of proving unreasonableness on the challenger (Gonzales v. Grass Valley Mobile Home Park, 1997; Mountain Fuel Supply Co. v. Emerson, 1978; Bell v. Gray, 1963). But in cases in which a fundamental right, such as the right to familial association, is at stake, the court has applied a stricter standard of review, (p. 64) effectively reversing the burden of proof and requiring a showing of a compelling state interest and use of narrowly tailored means (RS v. Johnson County Dept. of Family Services, 1999; LP v. Natrona County Dept. of Public Assistance and Social Services, 1984; DS v. Dept. of Public Assistance and Social Services, 1980).

Although the Wyoming Supreme Court has not undertaken a detailed analysis of this section’s unique language, the court’s decisions interpreting it draw heavily upon the more familiar due process and equal protection provisions (Reiter v. State, 2001). This section’s prohibition against “absolute” power suggests that the state must afford individuals facing governmental deprivation of life, liberty, or property a meaningful opportunity to challenge the deprivation (i.e., notice and hearing)—quite similar to what is required by the concept of procedural due process (United States Steel Corp. v. Wyoming Environmental Quality Council, 1978). The prohibition against “arbitrary” power, on the other hand, suggests a substantive limitation on governmental power; this limitation is implemented through the judicial reasonableness requirement, one of the standards used for substantive due process review (State v. Langley, 1938). Finally, the clause referring to “the largest majority” gives this section an equal protection component, clearly indicating that it is intended to protect individual rights against majoritarian tyranny. The court has implemented this equality principle by relying on traditional equal protection doctrine (Mountain Fuel Supply Co. v. Emerson, 1978; Bell v. Gray, 1963). The important unanswered question, though, is whether this section should be given some additional meaning beyond that given to these related provisions. See also Art. 1, sec. 36, which endorses the principle of unenumerated rights.

Section 8  Courts open to all; suits against state.

All courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay. Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.

This section, which also has no counterpart in the federal Constitution, provides for open courts and gives citizens a qualified right of access to the courts to seek redress for personal or property injuries. The Wyoming Supreme Court has explained that the “fact that the courts are required to be open and to afford justice for injury done does not mean that a party is assured of success in a legal action or that standards cannot be set for, and limitations cannot be placed upon, causes of action—all in the interest of justice” (Meyer v. Kendig, 1982). This open courts provision should be read in conjunction with Article 1, sections 6 and 34 and Article 3, section 27, which prohibits special laws limiting civil actions or granting a special privilege or immunity. In addition, this section provides that the state may be sued only to the extent sanctioned by the (p. 65) legislature. This provision should be read in conjunction with Article 16, section 7 (Utah Construction Co. v. State Highway Commission, 1933; Price v. State Highway Commission, 1946; see also Wyo. Stat. Ann. sec. 1–35–101, which governs suits against the state, and Wyo. Stat. Ann. sec. 1–39–101 et seq., the Wyoming Governmental Claims Act).25

In Williams, v. Stafford (1979), the Wyoming Supreme Court ruled that “access to court proceedings should be limited only in exceptional circumstances,” reasoning that open courts enhance public trust in the judiciary and protect against judicial persecution. Although the Williams decision ultimately sustained a bail proceeding closure order, the court adopted the standard that court closures are permitted only if dissemination of information about the pretrial proceedings would present a clear and present danger to a fair trial and if no alternative means are available to protect against such prejudice. In State ex rel. Feeney v. District Court (1980), after noting that judicial closure orders did not involve First Amendment prior restraint concerns, the court concluded that “the public [including the media] … has no constitutional right under … the Wyoming Constitution to have free access to such preliminary-hearing proceedings or to all information in the possession of the courts.”

Although the Wyoming Supreme Court has held that this provision creates a fundamental right of access to the courts (Robinson v. Pacificorp, 2000; Mills v. Reynolds, 1991), it does not prohibit the legislature from altering common law causes of action so long as its action is reasonable and does not violate other provisions of the constitution (Greenwalt v. Ram Restaurant Corp. of Wyoming, 2003). The court has adopted a two-part test to establish a violation of this open courts provision: “first, [a challenger] must show that he has a well-recognized common-law cause of action that is being restricted; and second, he must show that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute” (Robinson v. Pacificorp, 2000; Greenwalt v. Ram Restaurant Corp. of Wyoming, 2003). Because wrongful death claims were not recognized at common law, the legislature can impose a two-year limitation period in the wrongful death statute as a condition precedent to such actions without violating this section (Robinson v. Pacificorp, 2000). Moreover, courts can impose sanctions on litigants “to punish conduct that disrupts the orderly administration of justice” without violating this section (Terry v. Sweeney, 2000; White v. State ex rel. Wyoming Dept. of Transportation, 2009; Reynolds v. Bonar, 2013).

This section does not preclude the legislature from imposing reasonable procedural requirements, such as statutes of limitations or notice of claim (p. 66) requirements, on private causes of action or on actions against the state (Worden v. Village Homes, 1991; Meyer v. Kendig, 1982; Awe v. Univ. of Wyoming, 1975; Utah Construction Co. v. State Highway Commission, 1933). The Wyoming Supreme Court, however, will scrutinize such requirements to ensure that they are not granting immunity from suit to a class of defendants, in violation of this section as well as equal protection (Mills v. Reynolds, 1991; Phillips v. ABC Builders, Inc., 1980). Whereas earlier decisions suggested that the level of judicial scrutiny should be rigorous in these cases (Mills v. Reynolds, 1991), a more recent decision seems to employ a rather deferential standard of review (Greenwalt v. Ram Restaurant Corp. of Wyoming, 2003).26 Nonetheless, in Kordus v. Montes (2014), the court ruled that a two-year professional malpractice statute of limitations, when applied to block a minor child’s medical malpractice claim, violated this section’s open access standard, because the court does not assume that parents will always safeguard the child’s legal rights.

This provision does not empower the courts to authorize a private cause of action not recognized by the common law (Mull v. Wienbarg, 1949). In Greenwood v. Wierdsma (1987), the Wyoming Supreme Court reasoned that “[w]‌hile this general guaranty that judicial relief is available for injuries is not a guaranty of any specific relief, at least presumptively, commonly recognized causes of action are encompassed and protected.” The court in Greenwood relied on this section to limit the scope of a privilege statute, thus permitting discovery in a medical negligence case and recognizing the underlying cause of action. In its 2003 Greenwalt decision, the court summarized its current view of this provision in the following terms: “Thus, the courts are to afford remedies not for every wrong but for every wrong recognized by law” (Greenwalt v. Ram Restaurant Corp. of Wyoming, 2003).27

Relying upon the second sentence in this section, the Wyoming Supreme Court has treated suits against the state quite differently from suits against private parties. The court has ruled that this section is not self-executing and that it therefore preserves the state’s common law sovereign immunity from suit in the absence of legislative authorization (Hjorth Royalty Co. v. Trustees of Univ. of Wyoming, 1924; Worthington v. State, 1979; Troyer v. State Dept. of Health and Social Services, 1986; May v. Southeast Wyoming Mental Health Center, 1993).28 (p. 67) The court has reconciled the two sentences in this section by holding that the second sentence’s grant of power to the legislature to regulate suits against the state “was established as a direct limitation on a right of the people, as declared in the first sentence of Article 1, sec. 8” (White v. State, 1989). Thus, the court has refused to apply heightened scrutiny in evaluating legislative classifications immunizing the state from suit in some but not all instances, instead employing the traditional reasonableness standard to evaluate the constitutionality of such classifications.

According to the court, this provision reflects “the universal rule that a state exercising governmental functions cannot be made to respond in damages for tort and is not liable for the torts of its officers or agents in the discharge of their official duties, unless it has voluntarily assumed such liability and consented to be liable” (Chavez v. City of Laramie, 1964). The state’s consent to suit must originate from the legislature, and it must be expressed clearly and unambiguously (Campbell County Memorial Hospital v. Pfeifle, 2014; Williams v. Eaton, 1971; Hjorth Royalty Co. v. Trustees of Univ. of Wyoming, 1924). A suit against the University of Wyoming or its trustees acting in their official capacities is a suit against the state and is barred by this section unless authorized by the legislature (Biscar v. Univ. of Wyoming Bd. of Trustees, 1980; Hjorth Royalty Co. v. Trustees of Univ. of Wyoming, 1924).

The Wyoming Supreme Court, however, has permitted suits against the state without its consent when the state or its employees are engaged in a proprietary rather than governmental activity (Harrison v. Wyoming Liquor Commission, 1947; National Surety Co. v. Morris, 1925). Activities concerned with the health and welfare of the public are generally considered governmental functions, while activities historically performed by private corporations or that generate fees are considered proprietary (Biscar v. Univ. of Wyoming Bd. of Trustees, 1980). The court has looked to the state constitution in determining whether the state is involved in a governmental rather than proprietary activity (Harrison v. Wyoming Liquor Commission, 1947; Biscar v. Univ. of Wyoming Bd. of Trustees, 1980). Faculty employment decisions at the university are clearly governmental activities (Biscar v. Univ. of Wyoming Bd. of Trustees, 1980), as is the Liquor Commission’s purchase and sale of liquor (Harrison v. Wyoming Liquor Commission, 1947). On the other hand, when the state is a bank depositor seeking interest, it is acting in a proprietary capacity (National Surety Co. v. Morris, 1925).

This section’s sovereign immunity protection does not extend to governmental subdivisions, such as counties and municipalities. The Wyoming Supreme Court has judicially abrogated common law sovereign immunity for these entities in cases involving allegedly tortious conduct, although they are still granted immunity when engaged in legislative or judicial, or quasi-legislative or quasi-judicial, activities (Oroz v. Bd. of County Commissioners of Carbon County, 1978).

The Eleventh Amendment to the U.S. Constitution prohibits suits against a state in federal court, unless the state has explicitly consented to suit in a federal (p. 68) forum (Atascadero State Hospital v. Scanlon, 1985). Article 1, section 8 does not waive Wyoming’s Eleventh Amendment immunity to suit in federal court (Williams v. Eaton, 1971). Moreover, the state is not subject to suit in state court under 42 U.S.C. section 1983 because the state is not a “person” for purposes of this federal civil rights statute (Will v. Michigan Dept. of State Police, 1989; Alewine v. State Dept. of Health and Social Services, 1991). And Congress, acting under its Article 1, section 8 powers, cannot subject a state to suit in state court (Alden v. Maine, 1999).

Section 9  Trial by jury inviolate.

The right of trial by jury shall remain inviolate in criminal cases. A jury in civil cases and in criminal cases where the charge is a misdemeanor may consist of less than twelve (12) persons but not less than six (6), as may be prescribed by law. A grand jury may consist of twelve (12) persons, any nine (9) of whom concurring may find an indictment. The legislature may change, regulate or abolish the grand jury system.

This section addresses the right to a jury trial in both criminal and civil cases, and it provides for legislative control over the grand jury system. The constitutional convention discussed the size of grand juries as well as a proposal that the district courts should regularly appoint a grand jury to investigate the official accounts of each county treasurer (Journal, pp. 472, 726). But the liveliest discussion concerned whether a juror must profess a belief in the existence of a God. The convention finally decided a nonbeliever could be trusted as much as a believer (Journal, pp. 727–28).

The right to trial by jury is not available in all criminal or civil cases. The Wyoming Supreme Court has looked to the severity of consequences, the common law, and the distinction between law and equity to determine when this right attaches in a particular case. Significantly, the court has extended the right to trial by jury in criminal cases beyond where the U.S. Supreme Court mandates it under the Sixth Amendment. (Compare City of Casper v. Cheatham, 1987, with Lewis v. United States, 1996.)

The right to a jury trial is available for serious criminal offenses. This right attaches when the consequences of a finding or plea of guilty are considered to be severe. Although the Wyoming Supreme Court looks to the criminal penalty to determine whether it is serious enough to justify a trial by jury (Lapp v. City of Worland, 1980; City of Casper v. Cheatham, 1987), the court’s analysis indicates that the penalty is not always dispositive. The right to a jury trial attaches whenever the crime charged is actually punishable by a jail term (Brenner v. City of Casper, 1986; City of Casper v. Fletcher, 1996), as well as in some cases when no jail term is possible. In City of Casper v. Cheatham (1987), for example, a jury trial was required for a first-time charge of driving while under intoxication, even though no jail term was possible. The court reasoned that because (p. 69) jail time was mandatory for a second driving-while-intoxicated conviction, the relation between a first and second conviction was serious enough to require a jury for the first prosecution. Potential jail time, however, does not automatically ensure a jury trial. In City of Casper v. Fletcher (1996), the court held that the mere possibility of jail time did not require a jury trial for a municipal code violation, distinguishing Cheatham because jail time was mandatory for a second drunk driving conviction. In Weiss v. State ex rel. Cardine (1969), the court found no right to a jury trial in criminal contempt proceedings that result in jail time, concluding that the proceedings are equitable in nature and that there is no corresponding common law right to a jury trial. When the right to a criminal jury trial has attached, the costs for the jury and bailiff may not be taxed against a convicted defendant (Johnson v. State, 1975).

Although the criminally accused has the right to a unanimous verdict by twelve impartial jurors (Taylor v. State, 1980), the right to either a jury trial or a unanimous verdict can be waived with the consent of the court and the state (Taylor v. State, 1980; Johnson v. State, 1991). Such waivers of constitutional rights must be express and given knowingly, intelligently, and voluntarily (Brown v. State, 1983; Williams v. State, 1982; Robbins v. State, 1981). However, the Wyoming Supreme Court has held that the right to an impartial jury can be “waived” if the defendant fails to conduct a thorough voir dire and thus fails to uncover potential prejudice on a juror’s part (Lopez v. State, 1976).

The right to a jury trial is violated if the court assumes to resolve factual matters related to guilt in response to a jury’s questions submitted during deliberations (Snow v. State, 2009).

In deciding whether the right to a jury trial attaches in civil cases, the Wyoming Supreme Court determines whether the issues are primarily legal or equitable in nature. In Hyatt Bros., Inc. ex rel. Hyatt v. Hyatt (1989), finding that the remedies sought in a stockholders’ derivative action suit were primarily legal rather than equitable, the court recognized a right to a jury trial. But in In re GP (1984), the court ruled that an indigent father did not have a constitutional right to a jury trial when the state sought to terminate his parental rights, even though the right to associate with one’s family is fundamental. In Farrell v. Hursh Agency, Inc. (1986), the court held that there was no right to a jury trial to determine damages in a default case. There also is no right to a jury trial in condemnation proceedings because there was no such right at common law (Edwards v. City of Cheyenne, 1911).29 A prosecution may be initiated by indictment or information (In re Boulter, 1895). Because the grand jury is not considered an adversarial proceeding in which guilt or innocence is determined, a person who is the target of a grand jury investigation has no right to be heard during the investigation (Hennigan v. State, 1987).

(p. 70) Section 10  Right of accused to defend.

In all criminal prosecutions the accused shall have the right to defend in person and by counsel, to demand the nature and cause of the accusation, to have a copy thereof, to be confronted with the witnesses against him, to have compulsory process served for obtaining witnesses, and to a speedy trial by an impartial jury of the county or district in which the offense is alleged to have been committed. When the location of the offense cannot be established with certainty, venue may be placed in the county or district where the corpus delicti is found, or in any county or district in which the victim was transported.

This section gives individuals who are accused of criminal wrongdoing the right to defend in person and by counsel, to notice of the charges, to confront hostile witnesses, to compulsory process to compel witnesses to testify, and to a speedy trial by an impartial jury. The guarantee of an impartial jury should be read in conjunction with Article 1, section 9. The last sentence to this section was added by amendment in 1980 to clarify the location of venue in criminal cases. A violation of these constitutional rights is presumed prejudicial to the defendant and requires reversal of any conviction, unless the state can demonstrate that the error is harmless beyond a reasonable doubt (Vigil v. State, 2004; Daniel v. State, 2003; Chapman v. California, 1967; State v. Spears, 1956).

Right to Counsel

The right to counsel means a right to effective assistance of counsel. This right coincides with the compelling state interest of basing criminal determinations only on a reliable adversarial process (King v. State, 1991). When reviewing a claim of ineffective assistance of counsel (whether based on incompetency or a conflict of interest), the Wyoming Supreme Court generally follows the federal standard, namely, “whether there is a reasonable probability that counsel’s errors affected the outcome of the trial, primarily concerning whether the result was unreliable or the proceeding fundamentally unfair” (Strandlien v. State, 2007; Cureton v. State, 1997; Dickeson v. State, 1992; Strickland v. Washington, 1984). As explained in Osborne v. State (2012), a defendant claiming ineffective assistance “must prove both deficient performance and prejudice.”30 Consistent with federal law, the court has also acknowledged several narrow exceptions to the Strickland rule, including when counsel was appointed too close to trial and when counsel failed to subject the state’s case to meaningful adversarial testing (Sincock v. State, 2011; United States v. Cronic, 1984). The court, however, has occasionally departed from federal analysis by presuming prejudicial conflict of interest whenever counsel represents multiple criminal defendants (Shongutsie (p. 71) v. State, 1992). But in Asch v. State (2003), where two public defenders from the same office represented two different criminal defendants in separate trials arising from the same incident, the court held that the conflict-of-interest claim should be analyzed case by case in terms of the total circumstances. In Cutbirth v. State (1988), the court relied on federal precedent to evaluate claims of ineffective assistance of appellate counsel.

The right to effective assistance of counsel attaches upon the commencement of adversarial criminal proceedings (Jandro v. State, 1989) and extends to all “critical stages both before and after trial at which the substantive rights of the accused may be affected” (Gould v. State, 2006). This standard tracks the federal rule and includes a preliminary hearing (Hurst v. State, 1977), but does not “give a defendant a limited right to consult an attorney before deciding whether or not to submit to chemical testing for blood alcohol” (Mogard v. City of Laramie, 2001). While the right to counsel under the Fifth Amendment and Article 1, section 11 of the Wyoming Constitution requires a request for counsel, the right to counsel under the Sixth Amendment and this provision is automatic and must be waived expressly (Best v. State, 1987). Only a competent defendant can waive counsel. A waiver of this right must be voluntarily and intelligently made, which means that the defendant must be aware of options and consequences (Derrera v. State, 2014; Roose v. State, 1988; Cheatham v. State, 1986; Brown v. State, 1983).31

Right to Know Particulars of Accusation

The right to know the particulars of an accusation means a defendant is entitled to timely information about the basis of a criminal charge, sufficient to prepare a defense (Gonzales v. State, 1976; State v. Kusel, 1923). This right coincides with the procedural due process requirement of adequate notice (Holm v. State, 1965). In Rolle v. State (2010), the Wyoming Supreme Court elaborated that this section and related criminal procedure rules require that an information “(1) contain the elements of the offense charged; (2) fairly inform a defendant of the charges against which he must defend; and (3) enable a defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense.” See also Spagner v. State, 2009.

Right to Process to Compel Witnesses

The section provides criminal defendants with the right to compel witnesses to testify in order to ensure the reliability of the adversarial process. The Wyoming (p. 72) Supreme Court has held that a failure to provide compulsory process does not automatically constitute reversible error; the defendant must demonstrate that he has been “arbitrarily deprived of testimony that would have been relevant, material, and vital to his defense” (Sen v. State, 2013; Dysthe v. State, 2003; see also State v. Spears, 1956). The trial court must weigh the right to compulsory process against the public interest, considering such factors as the “integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process” (Sen v. State, 2013). The trial court’s decision regarding the admissibility of evidence is entitled to “considerable deference” and is reviewable under an abuse of discretion standard (Lawson v. State, 2000). A trial court “absent extraordinary circumstances denying a defendant a fair trial,” does not have the “inherent judicial power to confer witness immunity because it is solely an executive function as legislatively authorized” (Porth v. State, 1994). In Longfellow v. State (1991), involving a matter of statutory interpretation, the court ruled that expenses incurred for a witness subpoenaed on behalf of an indigent defendant are to be paid by the prosecuting county rather than from the public defender’s budget.

Right to a Speedy Trial

The right to a speedy and prompt trial adds to the reliability of the adversarial process by protecting the accused from being unfairly disadvantaged by undue delay before trial. This right attaches as soon as a complaint is filed or upon arrest, whichever occurs first (Strandlien v. State, 2007; Caton v. State, 1985). The Wyoming Supreme Court adheres to federal Sixth Amendment precedent and evaluates a speedy trial violation claim de novo by considering four factors: the length of the delay, the reasons for the delay, the defendant’s assertion of his or her rights, and the prejudice occasioned by the delay (State v. Humphrey, 2005; Berry v. State, 2004; Harvey v. State, 1989; Barker v. Wingo, 1972). These Barker factors must be balanced in order to determine whether the delay was “unreasonable” and thus “substantially impaired the right of the accused to a fair trial” (Humphrey v. State, 2008). The benefits of this protection are lost if the accused is responsible for the delay (Cherniwchan v. State, 1979; Phillips v. State, 1979). While retrial is precluded when a conviction is reversed on speedy trial grounds (Harvey v. State, 1989), a defendant who pleads guilty or nolo contendere is barred from raising a speedy trial violation (Zanetti v. State, 1989).

Because a speedy trial violation claim is evaluated on a case-by-case basis, no specific length of time automatically constitutes an unconstitutional delay (Potter v. State, 2007; Heinrich v. State, 1981). A three-month delay between arrest and a preliminary hearing can trigger application of the Barker balancing test (p. 73) (Phillips v. State, 1979; Caton v. State, 1985). The Wyoming Supreme Court has held that a delay of 500 days is presumptively prejudicial (Durkee v. State, 2015; Harvey v. State, 1989), while delays of around 300 days merit careful analysis (Potter v. State, 2007; Osborne v. State, 1991). When criminal charges are initially dismissed and then later refiled, the speedy trial clock stops during the interim, even when that interim stretches across twenty-four years (State v. Humphrey, 2005). A claim of a speedy trial violation of “many hundreds of days” can be lost if not raised on appeal (Swazo v. State, 1990). Unless the delay in bringing the defendant to trial is presumptively unreasonable, the burden is on the defendant to demonstrate actual prejudice resulting from the delay (Humphrey v. State, 2008; Strandlien v. State, 2007).

The Wyoming Supreme Court has held that the right to speedy trial is not jurisdictional (Zanetti v. State, 1989). A speedy trial violation therefore does not require reversal of a guilty plea upon appeal. However, in Sword v. State (1987), the court indicated that jurisdictional claims are those that, if sustained upon pretrial motion, would preclude the state from bringing the defendant to trial.

This section establishes the venue for criminal trials by providing that the trial must be held in “the county or district in which the offense is alleged to have been committed.” In NJC v. State (1996), the Wyoming Supreme Court held that this venue provision does not apply to juvenile delinquency proceedings because they are not criminal in nature.

Right to Confront Witnesses

During the constitutional convention, the confrontation right was originally worded as the right to “meet the witnesses opposed face to face.” It was changed to the current wording because the delegates decided that the courts had already construed the phrase “to be confronted” (Journal, p. 726). This clause ensures defendants the opportunity to confront and cross-examine adverse witnesses, though the trial court can reasonably limit the defendant’s cross-examination of a witness to avoid, for example, repetitious or irrelevant questioning (Swan v. State, 2014; Budig v. State, 2010). The clause promotes trustworthiness in the adversarial process by “secur[ing] the reliability of the evidence offered by the State,” thus coinciding with the procedural due process requirement that a person be allowed an opportunity to be heard in a meaningful manner (Ryan v. State, 1999; Holm v. State, 1965).

The Wyoming Supreme Court has relied heavily on federal precedent when interpreting this provision, perhaps because the language in the state and federal constitutions is identical. Drawing upon the U.S. Supreme Court’s decision in Crawford v. Washington (2004), the court has ruled that the confrontation clause limits the admissibility of hearsay testimony, holding that “any testimonial hearsay evidence violates the Confrontation Clause unless the declarant is legally unavailable and the defendant has had a prior opportunity to cross-examine the (p. 74) declarant” (Vigil v. State, 2004).32 In determining whether prior testimony from a preliminary examination, a former trial, or another proceeding is admissible, the court must be satisfied that “the prior testimony bore an ‘indicia of reliability’ sufficient to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement’ ” (Rodriguez v. State, 1985; Martinez v. State, 1980). In making this assessment, the court has applied a four-part test derived from the U.S. Supreme Court’s decision in Mancusi v. Stubbs (1972): “Prior testimony is admissible when the prior testimony was given under oath, when it was given while the defendant was represented by counsel, when the defendant’s counsel could and did cross-examine the witness, and when cross-examination which would be conducted at trial would not touch upon any new and significantly material line of inquiry” (Farmer v. State, 2005; Rodriguez v. State, 1985). In Rodriguez v. State (1985), for example, the court utilized this test to allow into evidence at trial a deceased witness’s preliminary hearing testimony when the defendant’s counsel had questioned the witness about her identification of the accused during the prior proceedings.

Although the clause “reflects a preference for face-to-face confrontation at trial,” this preference “must occasionally give way to considerations of public policy and the necessities of the case” (Ryan v. State, 1999; Maryland v. Craig, 1990). If a witness is unavailable to testify, for example, the burden is on the prosecution to demonstrate that good-faith efforts to obtain the presence of the missing witness for trial have been unavailing (Farmer v. State, 2005; Grable v. State, 1982). A trial court must exercise sound discretion in determining whether a witness is unavailable; its decision is then reviewable under an abuse of discretion standard (Farmer v. State, 2005). In Bush v. State (2008), the court permitted video conference testimony to be admitted in a murder case when the out-of-state witness was suffering physician-verified serious medical problems and the video (rather than telephonic) testimony met the reliability standard.

Following federal precedent, the Wyoming Supreme Court allows into evidence the out-of-court statements made by alleged co-conspirators who are unavailable for cross-examination. In Jandro v. State (1989), the court followed the rationale of Bourjaily v. United States (1987), which acknowledged that a literal interpretation of the confrontation clause would prohibit the introduction of such statements. The court reasoned that the out-of-court statements of an alleged co-conspirator are not hearsay.

(p. 75) Trial by Impartial Jury

The trial court has an affirmative duty to see that an accused is judged by an impartial jury (Summers v. State, 1986). This right to an impartial jury is initially protected by screening potential jurors for bias in the voir dire procedure. A judge may remove a potential juror for cause because of the juror’s bias, or a lawyer may preemptorily remove a juror without giving a reason.33 Voir dire coincides with the procedural due process requirement of fundamental fairness (Summers v. State, 1986).

Voir dire is designed to determine whether prospective jurors have such prejudices or biases as would interfere with a fair and impartial decision (Gresham v. State, 1985; Ostrowski v. State, 1983) and to allow the accused to exercise preemptory challenges intelligently (Summers v. State, 1986; Redwine v. Fitzhugh, 1958). In Lee v. State (1987), the Wyoming Supreme Court reversed a conviction in which a juror had not been removed for cause because the juror had served on a jury that had convicted another defendant from charges arising from the same incident. In Lee, the court indicated that the defense’s peremptory challenges must be exhausted before prejudice can be implied as a matter of law. In Lopez v. State (1976), the Wyoming Supreme Court held that two defendants accused of rape waived their rights to an impartial jury when they failed to discover during voir dire that a juror was a rape victim.

The jury selection process must meet this section’s impartiality standard, which ordinarily will require random selection of the potential jury panel. In Bloomer v. State (2009), however, the Wyoming Supreme Court sustained a conviction even though the potential jury panel was selected through an alphabetical order process, while expressing discomfort with this method of jury panel selection. In Oldman v. State (2000), the court ruled that the jury’s exposure to one juror’s opinion about the defendant’s guilt did not violate the impartiality requirement when the trial court took prompt action to ensure the other jurors would still abide by the presumption of innocence.34 In Asch v. State (2003), the court ruled that this section’s impartiality requirement was violated when the defendant was shackled during trial without requiring the state to demonstrate why this was necessary.

On appeal, the Wyoming Supreme Court will ordinarily defer to the trial court’s judgment as to whether a juror was prejudiced or biased (Schwenke v. State, 1989). The trial court’s discretion is limited only by the essential demands of fairness (Jahnke v. State, 1984). An awareness from pretrial publicity of the facts and issues does not make a potential juror automatically prejudiced (p. 76) or biased (Carothers v. State, 2008; Collins v. State, 1979). An accused who challenges the voir dire examination process must demonstrate substantial prejudice to establish an abuse of discretion (Frias v. State, 1986; Jahnke v. State, 1984; Summers v. State, 1986).

Section 11  Self-incrimination; jeopardy.

No person shall be compelled to testify against himself in any criminal case, nor shall any person be twice put to jeopardy for the same offense. If a jury disagree, or if the judgment be arrested after a verdict, or if the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy.

This section prohibits the state from forcing persons to testify against themselves, and it prohibits the state from trying a person twice for the same offense. But if a jury is unable to agree on a verdict, if the verdict has been arrested,35 or if the judgment is reversed due to an error of law, the person accused may be retried without violating this section.

The Right against Self-incrimination

The right not to be compelled to testify against oneself is designed to protect an accused person from having evidence coerced by government officials (Miskiminis v. Shaver, 1899; Miranda v. Arizona, 1966). An accused has the right to have counsel present during any custodial interrogation (Ramos v. State, 1991). The right to counsel to protect the right against self-incrimination under this section or the Fifth Amendment is distinguished from the right to counsel to assist the accused during critical stages of the adversarial process, which is provided by section 10 or the Sixth Amendment. Although the right to counsel under section 10 attaches automatically upon the commencement of adversarial proceedings (Jandro v. State, 1989; Hurst v. State, 1977), the right to counsel under section 11 requires a specific request (Best v. State, 1987). This is true even if the accused has counsel provided under the Sixth Amendment or Article 1, section 10 of the Wyoming Constitution (McNeil v. Wisconsin, 1991).

The right to counsel under section 11 attaches at the point of a custodial interrogation (Dryden v. State, 1975; Auclair v. State, 1983; Best v. State, 1987; CSC v. State, 2005). To determine whether an individual is in custody, the Wyoming Supreme Court applies a “totality of the circumstances” test, assessing “whether a reasonable man in [the suspect’s] position would have considered himself to be (p. 77) in police custody” (Gompf v. State, 2005; Gunn v. State, 2003). This is an objective test that generally does not take into account a suspect’s age or experience (Yarborough v. Alvarado, 2004; CSC v. State, 2005). Although this right protects an accused from being forced to give incriminating statements or testimony, the government may compel the production of evidence, such as blood or a handwriting sample, from an accused who has been arrested, and it may likewise compel such evidence from a witness using the subpoena process (Brunmeier v. State, 1987; West v. State, 2013).

During any custodial interrogation, an accused must be informed of his Miranda rights—the right to remain silent, the right to have counsel present, the right to appointed counsel if indigent, and that anything said may be used against him in court—before any voluntarily given statements can be admitted at trial (Miranda v. Arizona, 1966; Espinoza v. State, 1998; Dryden v. State, 1975; Maki v. State, 1911). According to the U.S. Supreme Court, the Miranda exclusionary rule is a matter of constitutional law that cannot be overturned or revised by legislative action (Dickerson v. United States, 2000).36 Interrogation includes words or actions likely to elicit an incriminating response (Ramos v. State, 1991). If the accused requests the assistance of counsel under section 11, the state must cease interrogation until counsel is present, unless this right is waived demonstrably (Hadden v. State, 2002; Best v. State, 1987).37 Waiver of the right to remain silent is not inferred lightly and requires a showing that the decision was made with full awareness of the nature of this right and the consequences of waiver (Dryden v. State, 1975). A waiver can be inferred from the accused’s ambiguous statements or conduct after being advised of the right to remain silent (Pena v. State, 2004; Cheatham v. State, 1986; Daniel v. State, 1982).

In determining whether a confession was given voluntarily or was coerced, the Wyoming Supreme Court employs a “totality of the circumstances” test to assess whether the statement resulted from “free and deliberate choice rather than intimidation, coercion, or deception” (Gompf v. State, 2005; Pena v. State, 2004; Eckenrod v. State, 2003). Alcohol intoxication can render a confession involuntary only if “the impairment [is] so great as to deprive an individual of a capacity to understand the meaning of his statements” (Siler v. State, 2005; Stone v. State, 1987). A suspect’s age, experience, and mental capacity can be considered as factors in determining the voluntariness of a confession (CSC v. State, 2005; Jelle v. State, 2005; Hannon v. State, 2004). Moreover, citing federal precedent, the Wyoming Supreme Court has held that the Miranda exclusionary rule (p. 78) is subject to a public safety exception, which includes not only a police officer’s safety but also a suspect’s health (Barnes v. State, 2008; Mackrill v. State, 2004).

A prosecutor may not use an accused’s post-arrest or a suspect’s pre-arrest silence by commenting on it at trial (Irvin v. State, 1977; Clenin v. State, 1978; Tortolito v. State, 1995). In Tortolito, noting “the broader protection of our own state constitution,” the Wyoming Supreme Court held: “The constitutional right to silence exists at all times—before arrest, at arrest, and after arrest; before a Miranda warning and after it. The right is self-executing.” The court went on to observe that because “the right to remain silent is a self-executing right, an accused is presumed to be exercising the right by his silence, pre-arrest and pre-Miranda when questioned by the state’s agents for purposes of a criminal investigation.”38 If a prosecutor violates the accused’s right to silence by commenting on it to the jury, the defendant is entitled to a reversal of conviction (Clenin v. State, 1978; Westmark v. State, 1984; Tortolito v. State, 1995; Emerson v. State, 1999). To determine if there was a comment on the right to remain silent, the Wyoming Supreme Court examines the prosecutor’s language to decide whether the jury would take it to be a comment about the accused’s not testifying (Oldham v. State, 1975; Cheatham v. State, 1986; Vigil v. State, 1996; Clearwater v. State, 2000; Guy v. State, 2008). A prosecutor also may not call a key witness when he or she knows that the witness will invoke the Fifth Amendment (Jones v. State, 1989). To determine if the prosecutor committed reversible error, the Jones court considered the prosecutor’s certainty that the called witness would assert this right, whether the witness was called to prejudice the defendant by adverse inferences that would be drawn by the jury from the witness’s refusal to testify, the extent to which the prosecutor exploited such adverse inferences, or whether the actual use of those inferences strengthened the state’s case. The Jones analysis does not apply, however, when the defendant calls a witness who will invoke the privilege against self-incrimination; in this case, the trial court has discretion to allow the defense to call such a witness (Porth v. State, 1994). Moreover, a prosecutor may legitimately note to the jury that the defendant did not introduce certain evidence or call certain witnesses (Boyd v. State, 1974; Stanton v. State, 1984).

A witness may be forced, under the threat of contempt of court, to testify under a grant of “use” or “transactional” immunity. When a witness has been (p. 79) granted immunity, any testimony given cannot be used against that witness (Hall v. State, 1993; Gale v. State, 1990; In re Contempt of Haselhuhn, 1987; Miskiminis v. Shaver, 1899).

The Wyoming Supreme Court has held that a violation of the right against self-incrimination requires reversal of any conviction (Frias v. State, 1986; Dryden v. State, 1975; Maki v. State, 1911; Miskiminis v. State, 1899). According to an early Wyoming decision: “The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land” (State v. Peterson and State v. Romano, 1920). The court, though, has treated some violations of this provision as “harmless error” or “plain error,” inquiring whether the defendant’s guilt was established “beyond a reasonable doubt” or whether the defendant was “materially prejudiced” (Ramos v. State, 1991; Doyle v. State, 1998).39

Double Jeopardy

The prohibition against double jeopardy expresses a constitutional value of finality for the benefit of the accused (Peterson v. State, 1978). Despite differences in language, the Wyoming Supreme Court interprets this provision to be coextensive with the similar Fifth Amendment provision (Derrera v. State, 2014; Patterson v. State, 2013; DeLoge v. State, 2002; Lauthern v. State, 1989; Simonds v. State, 1988). This right protects against a second prosecution for the same offense after acquittal or conviction (Landeroz v. State, 2011), and it protects against multiple punishments for the same offense (Bowlsby v. State, 2013; Vigil v. State, 1977).40 But neither this provision nor its federal counterpart prohibits federal and state governments from prosecuting a defendant under identical laws when they have concurrent jurisdiction (Heath v. Alabama, 1985; United States v. Lanza, 1922).

There are two key inquiries under double jeopardy analysis. First, did jeopardy attach? Jeopardy attaches when the court begins to hear evidence. For a jury trial, jeopardy attaches when the jury is sworn (Richmond v. State, 1976; (p. 80) Serfass v. United States, 1975). Preliminary hearings have been held not to trigger jeopardy (Cardenas v. State, 1991). Once jeopardy attaches, the accused may not be tried again for the same offense. Moreover, the doctrine of res judicata may bar a subsequent prosecution when the charges were initially dismissed with prejudice (Webster v. State, 2016).

Second, is the claim one of successive prosecutions for the same offense or one of multiple punishments for the same offense? According to the Wyoming Supreme Court, the section 11 protection against successive prosecutions for the same offense is determined under the federal “same–elements test,” which “inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offense’ and double jeopardy bars additional punishment and successive prosecution” (United States v. Dixon, 1993; Blockburger v. United States, 1932; Sweets v. State, 2013; Snow v. State, 2009). Double jeopardy prohibits successive prosecutions for greater or lesser included offenses (Jeffers v. United States, 1977; Brown v. Ohio, 1977, Ex parte Nielsen, 1889), unless it was impossible to ascertain the greater offense at the time of the initial prosecution (Daniel v. State, 2008). Collateral estoppel prevents an ultimate fact from being relitigated between the same parties and is part of double jeopardy analysis (Daniel v. State, 2008; Eatherton v. State, 1991).

Successive prosecutions are permissible if the accused requested and was granted a mistrial. In this case, the accused is deemed to have waived any claim of double jeopardy, unless the mistrial is granted because of intentional prosecutorial misconduct (Montoya v. State, 2016; State v. Newman, 2004; Peterson v. State, 1978). There is no bar to a successive prosecution if a jury cannot agree on a verdict (Landeroz v. State, 2011; Jones v. State, 1978), the verdict is arrested (Territory of Wyoming v. Pierce, 1874), or the judgment is reversed due to an error of law (Eatherton v. State, 1991). However, if the error of law is based upon the insufficiency of the evidence (United States v. Scott, 1978) or speedy trial violations (Harvey v. State, 1989), the case may not be retried.

While multiple charges for the same offense are permissible in a single trial (Thom v. State, 1990; Duffy v. State, 1990), multiple punishments for a single offense are not permissible (Hawes v. State, 2016; Cecil v. State, 2015; Vena v. State, 1997).41 Although an accused can be convicted of either a “greater (p. 81) offense” or a “lesser included offense,” double jeopardy prevents the accused from being convicted of both (Bowlsby v. State, 2013; Eatherton v. State, 1988). The test for determining “whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not” (State v. Keffer, 1993; Bowlsby v. State, 2013). If a defendant initiates an improper sentencing appeal, double jeopardy will not preclude the trial court from resentencing him to a longer term, because there is no expectation of finality in an illegal sentence (Patterson v. State, 2013; Moronese v. State, 2012). A defendant subjected to criminal punishment may not also be subjected to state-imposed civil penalties for deterrent or retributive purposes (Johnson v. State of Wyoming Hearing Examiner’s Office, 1992).

An accused may be convicted for two or more distinct offenses arising from the same transaction (Jackson v. State, 1914; Hammill v. State, 1979). Whether two statutes are the same or different depends upon what the legislature intended (Lauthern v. State, 1989; Duffy v. State, 1990). Conviction for an attempted crime and for the completed crime are barred by double jeopardy (Craney v. State, 1990; Howard v. State, 1988), but conviction for both conspiracy and the substantive crime is permitted (Schultz v. State, 1988; Harvey v. State, 1992; Vena v. State, 1997).

Section 12  Detaining witnesses.

No person shall be detained as a witness in any criminal prosecution longer than may be necessary to take his testimony or deposition, nor be confined in any room where criminals are imprisoned.

This section protects witnesses in criminal cases from extended detention for purposes of securing their testimony, and it prohibits the state from confining such witnesses with convicted criminals. It has not been subject to judicial interpretation. Statutory provisions governing witnesses and their testimony are located in Wyo. Stat. Ann. secs. 7–11–401 to 408.

Section 13  Indictment.

Until otherwise provided by law, no person shall, for a felony, be proceeded against criminally, otherwise than by indictment, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger.

This section allows charges to be brought against an accused by a grand jury indictment or by information initiated by a prosecuting attorney. Constitutional convention delegates empowered the legislature to override the grand jury system because of their bad experiences with this institution under territorial administrators who routinely manipulated grand juries to secure politically or (p. 82) economically motivated indictments.42 Wyoming’s first legislature approved an act entitled, An Act to Change and Regulate the Grand Jury System by Reducing the Number of Grand Jurors, Providing That a Grand Jury Shall Be Summoned Only When Ordered by the Court, and Providing for the Prosecution by Information, and the Procedure Thereunder (In re Wright, 1891). In In re Wright (1891), the Wyoming Supreme Court held that, under the “until otherwise provided by law” clause, the legislature could substitute prosecutions by information in place of prosecutions by indictment.

In In re Boulter (1895), the Wyoming Supreme Court rejected the argument that the legislature had to choose between an indictment or information, holding that both procedures were constitutionally correct. In Barnes v. State (1982), involving a challenge to a judicial rule providing for prosecution by information, the supreme court explained that “the [1891] legislative enactment has [now] been replaced by court rule, … [which] has the force and effect of law and is as ‘otherwise provided by law.’ ” But whether the state proceeds by indictment or information, the court has held that it must disclose the victim’s name to enable the defendant to mount an effective defense (Walker v. State, 1993; see also Art. 1, sec. 10).

Section 14  Bail; cruel and unusual punishment.

All persons shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel or unusual punishment be inflicted.

This section establishes a right to bail except in certain capital cases, and it prohibits excessive fines and cruel or unusual punishment. There was limited debate over this provision during the constitutional convention. One delegate suggested that “unusual” should be construed to mean a punishment not contemplated by law (Journal, p. 719).

Bail

The early Wyoming Supreme Court stated that the purpose of this provision “is to allow bail as a matter of right [before conviction] and to take away the discretion of the judges” (In re Boulter, 1895). This provision “affords bail to all persons accused of crime less than capital before conviction, and it therefore grants no such right after conviction.” After conviction, the trial court and the supreme court have concurrent jurisdiction to determine whether to grant bail in an appealed case (State v. Helton, 1953). According to the court, this section’s (p. 83) bail provision protections exceed those in the Eighth Amendment of the U.S. Constitution (Simms v. Oedekoven, 1992).43 Bail is a matter of right when the accused has provided sureties sufficient to ensure his or her appearance at trial, except for the capital crimes of premeditated murder or felony murder (Simms v. Oedekoven, 1992). According to the Wyoming Supreme Court, the “right to furnish bail with sufficient sureties, then, arises in favor of any person accused of crime and before conviction, absolutely and without exception in cases of all crimes not punishable with death; and in capital cases when the proof is not evident or the presumption not great” (State v. Crocker, 1895). Moreover, the court has stated that “bail is a manifestation of the interest of the individual in his personal liberty” and thus should be treated as a substantive rather than a procedural right (State v. Dist. Court of Second Judicial Dist., 1986).

The Wyoming Supreme Court has also explained, “It must be borne in mind that our laws are intended to be framed upon the humane idea that no man is to be punished until he has been convicted; that an accused is only confined in jail before trial and conviction to secure his presence at the trial, and, if convicted, that he may be compelled to undergo sentence” (State v. Crocker, 1895). Any higher bail amount than reasonably calculated to fulfil this purpose is excessive (Vigil v. State, 1977). Faced with interpreting the term “sufficient sureties” in a 2015 case, the Wyoming Supreme Court concluded that the purpose of this provision is to ensure the defendant’s presence at trial—not to safeguard his liberty—and thus upheld a trial court’s cash-only bail order, rejecting the argument that this language required a third-party surety for bail (Saunders v. Hornecker, 2015).

In State v. Crocker (1895), interpreting the clause “when the proof is not evident or the presumption not great,” the court found unconstitutional a statute implying that an indictment provided evident proof or a great presumption of guilt. The court ruled that a hearing was necessary to determine the degree of evidence against the defendant. As a general rule, the court indicated that bail should be refused whenever a judge would sustain a jury conviction for murder in the first degree. Determining the amount of bail is committed to the sound discretion of the trial judge, whose decision will not be disturbed except in case of a clear abuse of discretion (Vigil v. State, 1977). A claim of excessive bail can be challenged by interlocutory appeal or by a writ of habeas corpus (Vigil v. State, 1977). After a conviction, however, the question of bail is usually mooted and (p. 84) cannot be raised on appeal. A parolee detained on a parole violation has no right to bail (Pisano v. Shillinger, 1991).

Cruel or Unusual Punishment

This provision is designed to protect a convicted person from being punished inhumanely or disproportionately. According to the U.S. Supreme Court’s Eighth Amendment jurisprudence, punishments must “reflect evolving standards of decency that mark the progress of a maturing society,” which means the “cruel and unusual punishment” standard changes as society evolves (Atkins v. Virginia, 2002; Rhodes v. Chapman, 1981; Gregg v. Georgia, 1976). The Eighth Amendment thus limits what can be made criminal and the kinds of punishment that can be inflicted, and it prohibits excessive punishment (Graham v. Florida, 2010; Ingraham v. Wright, 1977). The Wyoming Supreme Court has implied that the state constitutional provision is no more exacting than the Eighth Amendment cruel and unusual punishment clause (Hopkinson v. State, 1981). In Hopkinson, the court did not find any material difference between this provision’s “cruel or unusual punishment” standard and the Eighth Amendment standard of “cruel and unusual punishment.”44 Nonetheless, because the Wyoming provision is framed in the disjunctive, the court “will look at the two words individually” (Johnson v. State, 2003; Sampsell v. State, 2001).

Whether a punishment is excessive is addressed by the doctrine of proportionality (Graham v. Florida, 2010; Harmelin v. Michigan, 1991; Solem v. Helm, 1983). The early Wyoming Supreme Court, in which a majority of the justices were constitutional convention delegates, evaluated a contempt sentence by looking, in part, to the sense of proportion between the act and the punishment, indicating that this provision is “aimed more at the form or character of the punishment, rather than its severity in respect to duration or amount” (Fisher v. McDaniel, 1901). To be excessive or cruel, according to the Fisher court, the punishment must be “so out of proportion to the offense as to shock the moral sense of the people.”45 The Wyoming Supreme Court continues to rely upon the proportionality doctrine by looking to the gravity of the offense and the harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction, and the sentences imposed for the crime in other jurisdictions (Tilley v. State, 1996; Oakley v. State, 1986; Solem v. Helm, 1983). However, the court “will not undertake a lengthy analysis under all three of the Solem criteria ‘except where the mode of punishment is unusual or the relative length (p. 85) of sentence to imprisonment is extreme when compared to the gravity of the offense’ ” (Sampsell v. State, 2001; Dodge v. State, 1997; Smith v. State, 1996).46 In Johnson v. State Hearing Examiner’s Office (1992), where a youth challenged suspension of his driver’s license after being convicted of merely possessing alcohol, the court found the license suspension violated this provision because the “harshness of the sentence far exceeds the gravity of the offense in this case.” Under this provision, the Wyoming Supreme Court has held the death penalty unconstitutional when mandatory (Kennedy v. State, 1977) but constitutional when it is based on any and all aggravating and mitigating circumstances and the character and situation of the defendant (Hopkinson v. State, 1981; Hopkinson v. State, 1983). Imposition of the death penalty for felony murder must be in accord with Tison v. Arizona (1987). The court has also held that “a life sentence in prison is not cruel, in and of itself” (Johnson v. State, 2003).

In the case of juveniles, the Wyoming Supreme Court relied upon the Eighth Amendment and U.S. Supreme Court precedent to rule that minors facing a de facto life imprisonment sentence are entitled to “an individualized sentencing hearing to weigh the factors for determining a juvenile’s ‘diminished culpability and greater prospects for reform’ when … the aggregate sentences result in the functional equivalent of life without parole” (Bear Cloud v. State, 2014; Miller v. Alabama, 2012).47 And the court has noted that these Miller factors must be considered at the sentencing stage and cannot be implied from an earlier decision transferring the defendant from juvenile to adult court (Sen v. State, 2013). Although Article 1, section 15 requires the penal code to be framed on the humane principles of reformation and prevention, the Wyoming Supreme Court has held that section 15 does not limit this provision, reasoning that the section speaks to the penal code but not to sentencing (Hopkinson v. State, 1983; Oakley v. State, 1986).

Section 15  Penal code to be humane.

The penal code shall be framed on the humane principles of reformation and prevention.

(p. 86) This section requires that the state’s penal code be based on the principles of reformation and prevention. It should be read in conjunction with Article 1, sections 14 and 16 (State v. Bd. of Commissioners of Laramie County, 1898).

The early Wyoming Supreme Court, on which a majority of the justices were constitutional convention delegates, stated that the Wyoming “constitution expressly adopts the humanitarian theory” in dealing with criminals. Citing Article 1, sections 14, 15, and 16, the court described “provisions for indeterminate sentences, parole of prisoners, instruction to illiterate convicts in reading, writing, and arithmetic” as progress toward the humane treatment of people (State v. Bd. of Commissioners of Laramie County, 1898). The court also stated that “protection of society should be [the] sole object [of penal codes]; and as punishment never made a sincere convert,” the prisoners should be trained and educated, where possible, and encouraged to become good citizens.

In Jahnke v. State (1984), the Wyoming Supreme Court ruled that this provision speaks only to the penal code, which it distinguished from judicial sentencing decisions (Oakley v. State, 1986). Under this rationale, judges may exercise discretion to impose a sentence for retribution as well as rehabilitation and prevention purposes (Cohee v. State, 2005; Wright v. State, 1983). This interpretation effectively means that this section can be used only to challenge statutory sentencing provisions and not an actual sentence, at least so long as the sentence is within the statutory limits (Oakley v. State, 1986). In Hopkinson v. State (1983), the court found that the state’s death penalty was “framed on the humane principles of reformation and prevention” and did not violate this section. In Castle v. State (1992), the court rejected the argument that the reformation purpose of this provision prevented the state from imposing an effective life without parole sentence. In Johnson v. State Hearing Examiner’s Office (1992), however, the court found that a statute imposing a harsher penalty on individuals under age nineteen than on older individuals violated this provision.

Section 16  Conduct of jails.

No person arrested and confined in jail shall be treated with unnecessary rigor. The erection of safe and comfortable prisons, and inspection of prisons, and the humane treatment of prisoners shall be provided for.

This section provides for the humane treatment of prisoners, and it requires periodic inspections of prisons. This section should be read in conjunction with Article 1, sections 14 and 15 (State v. Bd. of Commissioners of Laramie County, 1898). The Wyoming Supreme Court has acknowledged that this section creates a duty to provide appropriate medical treatment to prison inmates (Apodaca v. Ommen, 1991). Placing a prisoner of ambiguous gender in segregated confinement for the duration of her sentence, though pushing the humane boundary, (p. 87) does not violate either this section or the Eighth Amendment’s cruel and unusual punishment provision (DiMarco v. Wyoming Dept. of Corrections, 2004).

The early Wyoming Supreme Court recognized that the Wyoming “constitution expressly adopts the humanitarian theory” in dealing with criminals. While noting that the protection of society is an object of punishment, the court also indicated that reformation of offenders is important to the general prevention of criminal conduct: “Thus it may be seen that the modern prison system, at every stage of its evolution, revolves around one central thought,—the possibility of reformation; that the reformation of the prisoner is its one animating purpose; that the hope of reformation is the motive to which it owes its origin” (State v. Bd. of Commissioners of Laramie County, 1898).

Section 17  Habeas corpus.

The privilege of the writ of habeas corpus shall not be suspended unless, when in case of rebellion or invasion the public safety may require it.

This section establishes the right to petition for a writ of habeas corpus, except when public safety requires suspension of that right in cases of rebellion or invasion. This section should be read in conjunction with Article 5, sections 3 and 10, which vest original jurisdiction for habeas corpus in the supreme court and district courts. See also Wyo. Stat. Ann. secs. 1–27–101 to 1–27–134, which govern habeas corpus procedures.

The habeas corpus writ is commonly used to test the legality of a particular confinement, but the Wyoming courts can only address jurisdictional issues in a habeas proceeding (Ex parte Moore, 1932; Miskiminis v. Shaver, 1899). In Hovey v. Sheffner (1908), the Wyoming Supreme Court held that habeas corpus is inappropriate to challenge errors of law that do not affect a court’s jurisdiction, stating that “the jurisdictional facts cognizable on habeas corpus are not alone those which relate to jurisdiction of the subject matter, and of the person, but as well to jurisdiction to render the particular judgment.” More recently, the Wyoming Supreme Court has defined jurisdictional claims as those that, if sustained upon pretrial motion, would preclude the state from bringing the defendant to trial (Sword v. State, 1987). In Kingen v. Kelley (1891), the court stated that although jurisdiction of the person can be waived, subject matter jurisdiction cannot be waived. In State ex rel. Hopkinson v. District Court, Teton County (1985), the court ruled that a prisoner cannot combine a habeas corpus petition with a postconviction relief petition, because he was not mounting a jurisdictional challenge to secure his release from custody but rather seeking a new trial.48

(p. 88) Habeas corpus is also a proper remedy to recover custody and possession of a child after divorce (Miskiminis v. Shaver, 1899; Ex parte Madson, 1917; State ex rel. Klopotek v. District Court, 1980). In Ex parte Madson (1917), the Wyoming Supreme Court noted that courts of equity retain subject matter jurisdiction for all purposes in any way connected with the subject of litigation.

Writs of habeas corpus may be sought repeatedly, though each rejection is normally treated as a nonappealable determination (State ex rel. Klopotek v. District Court, 1980). In Miskiminis v. Shaver (1899), the Wyoming Supreme Court indicated that the right to appeal a denial of habeas corpus relief can be conferred only by statute, but then later observed, without reference to statutory authorization, that appeals are available in child custody habeas corpus proceedings (State ex rel. Klopotek v. District Court, 1980). The Klopotek court also noted that the availability of an appeal does not preclude repeated habeas corpus petitions.

Section 18  Religious liberty.

The free exercise and enjoyment of religious profession and worship without discrimination or preference shall be forever guaranteed in this state, and no person shall be rendered incompetent to hold any office of trust or profit, or to serve as a witness or juror, because of his opinion on any matter of religious belief whatsoever; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state.

This section guarantees individual religious freedom to all persons in Wyoming. It ensures freedom to believe and worship without discrimination. It also provides that religious beliefs shall not disqualify anyone from holding public office or serving as a witness or juror. An exceptions clause, however, provides that religious practices—which should be distinguished from religious beliefs—inimical to the “peace or safety of the state” are not protected.

Significantly, the constitutional convention rejected two proposed amendments that would have diminished the principle of religious tolerance. First, it rejected an amendment that would have excluded anyone who did not believe in God from serving on a jury or testifying in court, despite the argument that only people who believed in God were competent to serve on juries in capital cases (Journal, pp. 720–21). During the discussion, Albany County delegate John Hoyt argued that he was “especially proud of it [the constitution] on account of its breadth and freedom from all prejudice” (Journal, p. 720). Second, the delegates defeated a proposed amendment, aimed at the state’s Mormon population, which would have prohibited anyone who entered into or believed in polygamy from voting, holding public office, or serving as a juror (Journal, pp. 837–40).49

(p. 89) While not specifically interpreting this section, the Wyoming Supreme Court has relied upon the U.S Supreme Court’s First Amendment free exercise clause decisions to distinguish between the freedom to believe and the freedom to act and to rule that drug laws and other neutral laws of general application must be obeyed regardless of one’s religious beliefs (Trujillo v. State, 2000). In LePage v. State (2001), the court avoided interpreting this section in a case challenging a state agency’s student vaccination policy, finding that a state statute created a religious exception to the policy that precluded the agency from inquiring into the sincerity of the family’s religious beliefs. This section should be read in conjunction with Article 21, section 25.

Section 19  Appropriations for sectarian or religious societies or institutions prohibited.

No money of the state shall ever be given or appropriated to any sectarian or religious society or institution.

This section, which serves as the Wyoming Constitution’s anti-establishment clause, provides that state funds shall not be used to support any sectarian or religious institutions. This unambiguous prohibition against using state funds for religious purposes represents a much more explicit limitation on government expenditures to religious entities than is reflected in the more general language prohibiting the establishment of religion in the U.S. Constitution’s First Amendment. This section does not prohibit the state from providing for the incorporation of churches or other religious organizations (Wyo. Stat. Ann. secs. 17–8–101 to 117). This section should be read in conjunction with Article 7, sections 8 and 12 and Article 21, section 28. This section has not been subject to judicial interpretation, but the Wyoming attorney general has concluded that it does not prohibit the legislature from employing a chaplain to open its daily sessions with a prayer (Wyo. Att’y Gen. Op. 98-003, 1998).

Section 20  Freedom of speech and press; libel; truth a defense.

Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right; and in all trials for libel, both civil and criminal, the truth, when published with good intent and [for] justifiable ends, shall be a sufficient defense, the jury having the right to determine the facts and the law, under direction of the court.

This section grants an affirmative right of free speech to individuals as well as the media, and it extends protection to writing and publication. It does not protect “abuse” of the right to free speech. Libel actions are recognized, though truth is a defense to such an action, so long as the publication was “with good intent and [for] justifiable ends.” In libel actions, this section allows juries to (p. 90) determine facts and law, subject to oversight by a court. Given the U.S. Supreme Court’s extensive First Amendment jurisprudence on free speech, the Wyoming Supreme Court has regularly looked to federal precedent when addressing free speech claims, even using it to invalidate part of this section as applied in libel actions.

The Wyoming Constitution’s free speech protections, however, are broader than those available under the First Amendment, protecting not only the right to speak and write but also the right to publish and disseminate information (Tate v. Akers, 1976). But the right of free speech is not an absolute right (Mekss v. Wyoming Girls’ School, 1991; Spence v. Flynt, 1991). Relying on this section, the Wyoming Supreme Court has ruled that free speech principles support recognition of the public’s right of access to public documents (Sheridan Newspapers, Inc. v. City of Sheridan, 1983). The court has also suggested that this section, which—unlike the First Amendment—does not contain a reference to governmental action, extends free speech protection into the private domain, including private employment relationships (Allen v. Safeway Stores, Inc., 1985). Given the opportunity to expressly confirm such an extension, the court has instead ruled in two separate private employment cases that employees exercising asserted free speech rights on an employer’s premises during working hours are not entitled to protection under this section (McGarvey v. Key Property Management LLC, 2009; Drake v. Cheyenne Newspapers, Inc., 1995). Moreover, the supreme court has indicated that courts have a duty in free speech cases to examine independently the record to ensure protection of fragile speech rights (Mekss v. Wyoming Girls’ School, 1991).

As noted, when confronted with free speech issues, the Wyoming Supreme Court has often employed conventional First Amendment analysis. In McCone v. State (1994), the court embraced the federal substantial overbreadth doctrine, holding that a criminal statute would only be declared invalid if it reached “a substantial amount of constitutionally protected conduct.” In Miller v. City of Laramie (1994), the court strictly scrutinized the city’s anti-littering ordinance and placed an “onerous burden” of persuasion on the city. According to the court, the ordinance could not be applied to prohibit distribution of a free local newspaper, but the city “may place reasonable restrictions on such distributions so long as they do not have the effect of squelching legitimate speech which is protected by the constitution and so long as [the city] can demonstrate that other substantial means of communicating such speech are meaningfully available, including economic feasibility.”50

(p. 91) Truth is a complete defense to a libel action under this section (Tschirgi v. Lander Wyoming State Journal, 1985; Ando v. Great Western Sugar Co., 1973).51 In Tschirgi v. Lander Wyoming State Journal (1985), the Wyoming Supreme Court ruled that substantial truth also constitutes a complete defense, concluding that slight inaccuracies in a news story otherwise true are not libelous. Finding that libel claims can chill protected expression, the courts have sustained the use of summary judgment in libel actions, notwithstanding the language giving the jury a role in determining facts and law (Dworkin v. L.F.P., Inc., 1992; Tschirgi v. Lander Wyoming State Journal, 1985; Adams v. Frontier Broadcasting Co., 1976). In libel cases, the supreme court has interpreted the language “under the direction of the court” to mean that a court is responsible for instructing the jury on the law of libel and that counsel cannot argue another interpretation of the law to the jury (Nicholson v. State, 1916; Spriggs v. Cheyenne Newspapers, 1947). In Adams v. Frontier Broadcasting Co. (1976), the court relied upon New York Times Co. v. Sullivan (1964) to rule that a public figure can recover on a libel claim only by establishing actual malice (i.e., publication with knowledge that the statement was false or with reckless disregard of its truth or falseness).52 Moreover, in Dworkin v. L.F.P., Inc. (1992), the court concluded that this section’s “good intent and justifiable ends” language violated First Amendment principles when applied in public figure libel actions against media defendants. But in Spence v. Flynt (1991), the court ruled that the public figure doctrine may not extend to a well-known attorney representing a client in a controversial matter.

Drawing upon First Amendment precedent, the Wyoming Supreme Court has recognized that the public, including the press, enjoys a state constitutional right of access to public documents to ensure “the people’s right to be kept informed” (Sheridan Newspapers, Inc. v. City of Sheridan, 1983).53 In Sheridan Newspapers (1983), the court cited free speech principles to rule that the Wyoming Public Records Act ensures public access to police records, though police officials may individually protect specific—but not an entire category of—documents from disclosure if one of the statutory exceptions is met.54 In Cheyenne Newspapers, (p. 92) Inc. v. First Judicial District Court (2015), the court relied exclusively upon First Amendment prior restraint doctrine to reverse a district court order prohibiting the press from publishing the names of juvenile witnesses involved in a criminal trial. Curiously, though, the court has not recognized a clear connection between this section’s right of access to information principle and the Article 1, section 8 open courts principle (Williams v. Stafford, 1979; State ex rel. Feeney v. District Court, 1980).

The Wyoming Supreme Court, again relying heavily on federal precedent, has ruled that this section’s free speech guaranty protects public employees from termination for exercising their speech rights. In Board of Trustees, Laramie County School District No. 1 v. Spiegel (1976), the court extended free speech protection to tenured and untenured public school teachers who speak publicly on issues of general concern, including union matters involving local school officials. The court adopted the standard that a teacher could be dismissed for speaking out only if his or her activities disrupted classroom discipline or substantially interfered with school operations, and then only if the speech was knowingly false or recklessly disregarded the truth.55 In Mekss v. Wyoming Girls’ School (1991), the court also extended free speech protection to a whistle-blowing employee. The court adopted a balancing standard that the employee’s speech must touch upon a matter of public concern and that the employee’s interests must outweigh the employer’s interest in efficiency, with greater weight given to a whistle-blower’s interest when exposing governmental corruption (Schalk v. Gallemore, 1990). A public employer, however, can fire an employee if the employee’s activities are likely “to disrupt operations, undermine authority, and destroy close working relationships” (Mekss v. Wyoming Girls’ School, 1991). Moreover, even if the employee’s speech was a motivating factor in the dismissal decision, the employer can still prevail if the same decision would have been reached regardless of the speech (Mount Healthy City School Dist. v. Doyle, 1977).

The Wyoming Supreme Court cited this section’s “abuse of that right” language to sustain its contempt power over a bar applicant who vehemently criticized the court, finding that his speech constituted a clear and present danger to the administration of justice (In re Stone, 1957). This section’s provision authorizing a jury to determine facts and law in a libel action has no application to a bar disciplinary proceeding, even one based upon the allegedly contemptuous statements of a judicial candidate (State Bd. of Law Examiners v. Spriggs, 1945).

In Collection Center, Inc. v. State of Wyoming (1991), the court ruled that free speech principles, as applied in the commercial speech context, do not protect (p. 93) misleading advertising of an illegal activity.56 In Hagen v. Culinary Workers Alliance Local No. 337 (1952), the court found that peaceful labor union picketing intended to coerce an employer to sign an agreement requiring union membership among employees who were not involved in the picketing activity was not protected by free speech principles.

Section 21  Right of petition and peaceable assembly.

The right of petition, and of the people peaceably to assemble to consult for the common good, and to make known their opinions, shall never be denied or abridged.

This section, which should be read in conjunction with the prior free speech provision, recognizes a right to petition and assemble. Quoting approvingly from Judge Thomas Cooley’s constitutional law treatise, the Wyoming Supreme Court has observed that this section recognizes:

[A]‌ sacred right which in difficult times shows itself in its full magnitude, frequently serves as a safety-valve if judiciously treated by the recipients, and may give to the representatives or other bodies the most valuable information. It may right many a wrong, and the deprivation of it would at once be felt by every freeman as a degradation. The right of petitioning is indeed a necessary consequence of the right of free speech and deliberation—a simple, primitive, and natural right. (Spriggs v. Clark, 1932, quoting T. Cooley, Constitutional Limitations)

In Spriggs (1932), relying upon this section, the court rejected the claim that state officials could not submit the question of repealing the prohibition amendment to a statewide referendum. In Hagen v. Culinary Workers Alliance Local No. 337 (1952), however, the court ruled that this section does not protect a labor union’s picketing an employer who refused to sign an agreement only to hire union members, when the employees had not been contacted by the union about union membership or conditions of employment. The court observed that the union’s action “was coercion and was beyond the pale of free speech.”

Section 22  Protection of labor.

The rights of labor shall have just protection through laws calculated to secure to the laborer proper rewards for his service and to promote the industrial welfare of the state.

(p. 94) This section recognizes the principle of a right of labor while also providing that such a right is entrusted to the legislature. Although this provision generated no reported debate during the constitutional convention, it reflects the delegates’ commitment to protecting laborers against corporate abuses. This section should be read in conjunction with Article 19, sections 2, 3, 4, 6, and 7.

In State v. A. H. Read Co. (1925), the Wyoming Supreme Court ruled that a statute establishing minimum hours of employment on public works does not violate this section. In Bebber v. Mills Lumber Co. (1967), the court concluded that this section is not self-executing, which means that it can be enforced only through legislative enactments. (See Title 27 of the Wyo. Stat, Ann. for the state’s labor laws.)

Section 23  Education.

The right of the citizens to opportunities for education should have practical recognition. The legislature shall suitably encourage means and agencies calculated to advance the sciences and liberal arts.

This section recognizes an individual right to an opportunity for an education, and it requires the legislature to provide for suitable educational opportunities. The constitutional convention incorporated several educational provisions in the constitution, including Article 7 and Article 21, section 28, that reflect “the fundamental importance placed on education by the founders of our state” (Washakie County School Dist. No. One v. Herschler, 1980).57 In Washakie County School District No. One v. Herschler (1980), the Wyoming Supreme Court relied on this section, along with other education and equal protection provisions, to conclude that education is a fundamental interest for Wyoming children and to apply strict scrutiny to invalidate the state’s local property tax–based system of financing public education.58 In RM v. Washakie County School District No. One (2004), the Wyoming Supreme Court clarified that “the fundamental right provided is an opportunity for an education” (emphasis in original). The court explained that “[t]‌he state’s obligation then is to, ‘provide an education system of a character which provides Wyoming students with a uniform opportunity to become equipped for their future roles as citizens, participants in the political system, and competitors both economically and intellectually’ (quoting Campbell County School Dist. v. State (1995).” Accordingly, the court sustained (p. 95) one-year student expulsions for selling drugs at school, observing that this section “does not guarantee that a student cannot temporarily forfeit educational services through his own conduct.” In Natrona County School District No. 1 v. Ryan (1988), the court ruled that this section ensures each child an educational opportunity “in accordance with the child’s individual capabilities.” Nonetheless, the court concluded that the state had no legal obligation to provide a suitable education for a twenty-one-year-old mentally handicapped student, finding that the state’s educational obligations end once a student reaches the age of twenty-one. (See Art. 7, sec. 9.) Similarly, in Natrona County School District No. 1 v. McKnight (1988), the court rejected an educational malpractice argument and refused to order the state to provide a severely handicapped twenty-one-year-old student with additional compensatory educational instruction.59

The Wyoming Supreme Court has suggested that this section does not guarantee aliens a right to public education (State ex rel. R. R. Crow & Co. v. Copenhaver, 1947). But in Plyler v. Doe (1982), the U.S. Supreme Court held that the Fourteenth Amendment equal protection clause requires states to educate illegal alien children.

Section 24  Right to bear arms.

The right of citizens to bear arms in defense of themselves and of the state shall not be denied.

This section gives citizens a “limited right to bear arms ‘in defense of themselves and of the state’ ” (Carfield v. State, 1982). The Wyoming Supreme Court has stated that “[a]‌n absolute right to bear arms, concealed or otherwise, has never been recognized, even at common law” (State v. McAdams, 1986). Further, the court has observed that “[m]uch like a driver’s license, a permit to carry a concealed firearm is a ‘privilege’ and not a ‘right’ ” (Mecikalski v. Office of the Attorney General, 2000; see also King v. Wyoming Division of Criminal Investigation, 2004). In Carfield v. State (1982), the court ruled that the right to bear arms is subject to the legitimate exercise of the state’s police power, and it sustained a statute making it a crime for a felon to possess a firearm. In State v. McAdams (1986), the court applied a reasonableness standard to sustain a criminal statute prohibiting the carrying of a concealed weapon, while also noting that “the police power … cannot be invoked in such a manner that it amounts to the destruction of the right to bear arms.” Since these cases were decided, the U.S. Supreme Court has concluded that the Second Amendment of the U.S. Constitution protects (p. 96) an individual right to possess a firearm in one’s home for self-defense purposes (District of Columbia v. Heller, 2008), and that this Second Amendment right applies to the states under the Fourteenth Amendment (McDonald v. City of Chicago, 2010).

Section 25  Military subordinate to civil power; quartering soldiers.

The military shall ever be in strict subordination to the civil power. No soldier in time of peace shall be quartered in any house without consent of the owner, nor in time of war except in the manner prescribed by law.

This section recognizes the important principle of civilian control over the military. It also prohibits the quartering of soldiers in private homes without consent, unless sanctioned by law during a war. This section should be read in conjunction with Article 17, which governs the state militia. It has not been subject to judicial interpretation.

Section 26  Treason.

Treason against the state shall consist only in levying war against it, or in adhering to its enemies, or in giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court; nor shall any person be attained of treason by the legislature.

This section defines the crime of treason against the state, and it extends procedural protections to anyone accused of treason to guard against false accusations. It also prohibits the legislature from passing a bill of attainder for treason. It has not been the subject of judicial interpretation. See also Art. 4, sec. 5, which prohibits the governor from pardoning anyone convicted of treason.

Section 27  Elections free and equal.

Elections shall be open, free and equal, and no power, civil or military, shall at any time interfere to prevent an untrammeled exercise of the right of suffrage.

Consistent with other provisions guaranteeing suffrage rights and ensuring voter equality, this section provides for free, open, and equal elections. This section should be read in conjunction with Article 1, sections 2 and 3, as well as Article 6. The Wyoming Supreme Court has ruled that “[t]‌he right to vote is a fundamental right entitled to the strict protection of the courts” (Brimmer v. Thomson, 1974). And the court has stated that “we construe statutes that confer or extend the elective franchise liberally (as opposed to those limiting the right to vote in some way, which then invokes strict scrutiny) (Shumway (p. 97) v. Worthey, 2001).” Otherwise, this section has not been subject to meaningful judicial interpretation.

Section 28  Taxation—Consent of people; uniformity and equality.

No tax shall be imposed without the consent of the people or their authorized representatives.

This section, which should be read in conjunction with Article 15, requires popular consent before a tax may be imposed. A 1988 amendment deleted the requirement that “all taxation shall be equal and uniform.” The amendment was proposed in the aftermath of the Wyoming Supreme Court’s decision in Rocky Mountain Oil and Gas Association v. State Board of Equalization (1987), ruling that the state’s three-tier property tax assessment scheme creating a differential tax rate system violated the uniformity provision. Relatedly, Article 15, section 11 was also amended in 1988 to delete an absolute uniformity requirement in favor of a tiered property taxation system. The heading of this section has inexplicably not been changed.

No cases have yet interpreted this section’s amended language. Most of the litigation under the old provision addressed the question of whether the equality and uniformity requirements were being met (In re Monolith Portland Midwest Co., 1978; Weaver v. State Bd. of Equalization, 1973; Scott Realty Co. v. State Bd. of Equalization, 1964). In the aftermath of the 1988 amendment, tax equality and uniformity challenges will have to be based on the Article 15, section 11 revised uniformity language along with the Article 1, section 34 equal protection requirement or the Article 3, section 27 prohibition on local or special laws for the assessment or collection of taxes. (But see State v. Campbell County School Dist., 2001, which curiously still cites this section as well as Art. 15, sec. 11 for requiring uniformity in state taxation.)

Some earlier court decisions, though, are still germane to this section’s amended language. In Tennant v. Sinclair Oil and Gas Co. (1960), the Wyoming Supreme Court endorsed the principle that the benefits of taxation should be received by those responsible for paying the tax, striking down a statute authorizing distribution of excess tax receipts outside the school district being taxed.60 This section does not prevent a city from levying special assessments for municipal improvements (McGarvey v. Swan, 1908), nor does it invalidate an irrigation district’s taxing authority for improvements (Sullivan v. Blakesley, 1926). In In re Black (1989), the court ruled that a taxpayer who prevails in a tax assessment challenge is not entitled to a refund of interest on the amount overpaid in the absence of an authorizing statute. In Wyoming State Treasurer v. City of Rawlins (p. 98) (1973), the court held that a city’s contribution to a pension fund, though measured by reference to property assessments, is not a tax.

Section 29  Rights of aliens.

No distinction shall ever be made by law between resident aliens and citizens as to the possession, taxation, enjoyment and descent of property.

This section ensures resident aliens equal treatment with citizens in matters involving property ownership, including matters of taxation and inheritance. Because the federal government is given broad power over immigration and naturalization in the U.S. Constitution (Arizona v. United States, 2012; Graham v. Richardson, 1971), any interpretation of this section must recognize general supremacy clause principles. Accordingly, the Wyoming Supreme Court has upheld a nonresident alien’s right to inherit property in Wyoming pursuant to federal treaty provisions, even though state law would have prohibited the inheritance (Bamforth v. Ihmsen, 1922; Button v. Donahue, 1932).

Section 30  Monopolies and perpetuities prohibited.

Perpetuities and monopolies are contrary to the genius of a free state, and shall not be allowed. Corporations being creatures of the state, endowed for the public good with a portion of its sovereign powers, must be subject to its control.

Reflecting the constitutional convention’s distrust of large corporations, this section prohibits monopolies and perpetuities, and it provides for state regulation of corporations. This section should be read in conjunction with Article 10, which governs corporate activities and also prohibits anticompetitive practices. Relevant statutory provisions implementing this section include Wyo. Stat. Ann. sections 34–1–138, 139 (the rule against perpetuities) and 40–4–101 to 114 (price discrimination).

This section requires that courts recognize the statutory rule against perpetuities, which “encourages the constitutional goal of alienability of property by voiding property interests that will not vest within the statutory term” (Shriners Hospitals for Children v. First Northern Bank of Wyoming, 2016; Horse Creek Conservation Dist. v. State ex rel. Wyoming Attorney General, 2009). The rule prohibits defined limitations on the transferability of property, and also prevents courts from carving out an exception to the rule (Williams v. Watt, 1983).61 The rule does not apply to property interests that have already vested, representing the point at which no contingency can defeat the interest (Shriners Hospitals for Children v. First Northern Bank of Wyoming, 2016). And this section’s prohibition (p. 99) on perpetuities does not apply to restraints on alienation, which represent limitations on the marketability of property (McGinnis v. McGinnis, 1964).

This section should be read in conjunction with Article 3, section 27, which prohibits special laws granting special or exclusive privileges to any corporation, association, or individual (Pirie v. Kamps, 1951). In In re Gillette Daily Journal (1932), the Wyoming Supreme Court upheld a statute providing that legal notices could be published only in newspapers in existence for more than fifty-two weeks, finding that this requirement did not violate the prohibition against monopolies since it did not prevent other newspapers from being established.

Section 31  Control of water.

Water being essential to industrial prosperity, of limited amount, and easy of diversion from its natural channels, its control must be in the state, which, in providing for its use, shall equally guard all the various interests involved.

This section recognizes the state’s right to control water within its borders. By requiring that the state “shall equally guard all the various interests involved,” it also establishes the principle of equality in the state’s administration of the water rights system. The fact that the constitutional convention included this section in the Declaration of Rights article reflects the importance attached to water in arid Wyoming, a proposition the Wyoming Supreme Court has confirmed: “Water is the lifeblood of Wyoming. It is a scarce resource which must be effectively managed and efficiently used to meet the various demands of society” (In re Big Horn Water Rights Adjudication, 1992). This section must be read in conjunction with Article 8, which establishes state ownership of water, creates a prior appropriation system for allocating water rights, and elaborates a comprehensive state administrative system to adjudicate water rights and regulate water use.

In Farm Investment Co. v. Carpenter (1900), the Wyoming Supreme Court upheld this section against constitutional challenge, finding that it properly vested ownership of water in the state rather than the federal government. The court reasoned that Congress ratified this provision when it passed the Act of Admission and that water, by necessity, was properly regarded as a public natural resource in the arid West. According to the court:

Although an appropriator secures a right which has been held with good reason to amount to a property right, he does not acquire a title to the running waters themselves… . The title of the appropriator fastens, not upon the water while flowing along its natural channel, but to the use of a limited amount thereof for beneficial purposes in pursuance of an appropriation lawfully made and continued.

In Day v. Armstrong (1961), the court held that the state’s ownership of water guaranteed the public’s right to float on that water, rejecting the private property claims of adjacent landowners.

(p. 100) The Wyoming Supreme Court has relied upon this section, as well as Article 8 and the state’s inherent police power, to sustain the state’s regulatory authority over water, including the board of control’s administrative authority over the prior appropriation system (Farm Investment Co. v. Carpenter, 1900; Hamp v. State, 1911). In In re Big Horn Water Rights Adjudication (1992), the court not only granted the state engineer authority to manage all water rights in the basin, including the Indian reserved rights over the tribe’s objections but also observed that this section obligated him to “equally guard all the various interests” including the tribe’s reserved water rights.

In Bower v. Big Horn Canal Association (1957), implicitly finding no violation of this section’s “equality of interest” requirement, the court permitted a farmer to appropriate seepage water from his own land for use on other lands over the objections of other irrigators holding nearby appropriation rights. In In re Bridger Valley Water Conservancy District (1965), the court refused to invalidate a contract between a water conservancy district and the United States that limited access to spring runoff water and that required landowners to dispose of their excess lands within ten years in order to receive water from a federal reclamation project, finding that the landowners were not stripped of any adjudicated water rights.

Under this section, the state can maintain a public nuisance action to remove part of an improperly constructed dam (Big Horn Power Co. v. State, 1915).

Section 32  Eminent domain.

Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and for reservoirs, drains, flumes or ditches on or across the lands of others for agricultural, mining, milling, domestic or sanitary purposes, nor in any case without due compensation.

This section authorizes private eminent domain or private condemnation, a unique feature found in many western state constitutions. The Wyoming Constitutional Convention delegates evidently borrowed this provision, without debate, from the Colorado Constitution.62 They established the power of private eminent domain to promote settlement and development of the state’s resources (Coronado Oil Co. v. Grieves, 1982; Grover Irrigation and Land Co. v. Lovella Ditch, Reservoir and Irrigation Co., 1913). This section, however, limits private condemnation authority to ways of necessity and water development works for “agricultural, mining, milling, domestic or sanitary purposes.” If the condemnation power is exercised, the property owner must be compensated. Two separate statutory procedures govern public and private condemnation (p. 101) actions: Wyo. Stat. Ann. sec. 1–26–501 et seq. governs exercise of the eminent domain power, while Wyo. Stat. Ann. sec. 24–9–101 et seq. governs the establishment of private roads (Mayland v. Flitner, 2001).

This section is supplemented by Article 1, section 33, which also recognizes the power of eminent domain (Snell v. Ruppert, 1975). According to these two sections, the private eminent domain power can be exercised only if it will provide a public benefit to the people of Wyoming: “A private use for any of the purposes mentioned in section 32 is given the same force and effect as a public use, and no greater” (Grover Irrigation and Land Co. v. Lovella Ditch, Reservoir and Irrigation Co., 1913). Thus, private condemnation is permitted only if “the particular use [has] some substantial relation to a public purpose and the public interest and welfare of the state wherein the land to be taken is located.” In Grover Irrigation and Land Co. (1913), the Wyoming Supreme Court held that private property could not be condemned under this section because the proposed irrigation project would benefit only lands in Colorado, even though Wyoming may receive some indirect benefit from the development. On the other hand, this section does not prohibit private condemnation if the purpose would also benefit lands in another state as well as in Wyoming.

The Wyoming Supreme Court has generally deferred to the legislature’s statutory determinations as to when private condemnation is permitted (Coronado Oil Co. v. Grieves, 1982; Meyer v. Colorado Central Coal Co., 1928). At the same time, the court has indicated that such statutes should be strictly construed to protect landowners from improper condemnations (Coronado Oil Co. v. Grieves, 1982). Legislative action under this section will effectively abrogate common law doctrines governing access to landlocked property (Snell v. Ruppert, 1975). Indeed, the court has ruled that “the concept of a common law way of necessity is theoretically incompatible with [this section]” (Ferguson Ranch, Inc. v. Murray, 1991). The court, though, has not yet decided whether this section is self-executing and can therefore be enforced without legislative action (Coronado Oil Co. v. Grieves, 1982). Because this section does not limit the type of property interest (fee simple, easement, etc.) that can be taken, the legislature is responsible for defining what property interest passes in a private condemnation action (Meyer v. Colorado Central Coal Co., 1928). When authorizing private condemnation under this section, the legislature must meet basic due process standards and ensure that property owners are given notice and an opportunity to contest the condemnation as well as the compensation amount (Gold v. Bd. of County Commissioners of Teton County, 1983; Sterritt v. Young, 1905).

In Coronado Oil Co. v. Grieves (1982), the supreme court ruled that private condemnation could be used to secure access—or a way of necessity—for oil and gas exploration, concluding that the term “mining” properly included oil and gas activity. In In re Big Horn Water Rights Adjudication (1988), the court held that a water appropriation decree granting the state engineer authority to monitor water use on an Indian reservation did not constitute a taking under (p. 102) this section, because the engineer could not deprive the tribes of water without seeking judicial authorization.

Section 33  Compensation for property taken.

Private property shall not be taken or damaged for public or private use without just compensation.

This section guarantees just compensation whenever private property is condemned or damaged for public or private purposes. It complements Article 1, section 32 (Snell v. Ruppert, 1975). Both sections were included in the constitution to promote settlement and development of the state’s resources (id.; Meyer v. Colorado Central Coal Co., 1928). Under these sections, the legislature may grant condemnation power to cities or other local governmental entities, including the power to condemn land beyond their jurisdictional boundaries (Edwards v. City of Cheyenne, 1911). But the legislature cannot divest property owners of the right to compensation (State Highway Commission v. Peters, 1966). The Wyoming Supreme Court has held that the terms “just compensation” in this section and “due compensation” in the prior section “result in the same formula for computation of just compensation” (Mayland v. Flitner, 2001). By authorizing takings for both “public or private use,” this section effectively obviates any controversy over the meaning of “public use” as the U.S. Supreme Court interpreted that term in Kelo v. City of New London (2005). Wyo. Stat. Ann. sec. 1–26–501 et seq. implements the eminent domain power. See also Art. 10, sec. 9 expressly providing that corporate property may be taken under the state’s eminent domain power. The Wyoming Supreme Court has ruled that the word “property” as used in this section should be “liberally construed” to include “every sort of interest the citizen may possess” (State Highway Commission v. Rollins, 1970). But one does not have a property right to a particular flow of traffic over a public highway; the state can reroute highways without being liable to adjacent businesses for a taking (State Highway Commission v. Scrivner, 1982). Nonetheless, property can be taken without physical entry or occupation (Hirt v. City of Casper, 1940).

Recovery for “damage” to property is available only if the property owner has suffered “special damage differing in kind and not merely in degree from that sustained by the public generally” (Sheridan Drive-in Theatre, Inc. v. State, 1963; Coronado Oil Co. v. Grieves, 1982). The property must “be rendered intrinsically less valuable… . Mere personal inconvenience or injury, such as damage to a business” is not sufficient to justify compensation (Sheridan Drive-in Theatre, Inc. v. State, 1963; State Highway Commission v. Scrivner, 1982). In the absence of actual physical injury to property or “impairment of a right appurtenant thereto,” this section does not require compensation simply because a nearby public improvement has caused some diminution in market value (Sheridan Drive-in (p. 103) Theatre, Inc. v. State, 1963). Moreover, negligence by public officials engaging in governmental activities that causes damage to property is not covered by this section; the property owner must rely upon common law tort remedies in seeking compensation (Chavez v. City of Laramie, 1964).

Drawing upon U.S. Supreme Court precedent, the Wyoming Supreme Court has ruled that legitimate exercises of the police power, such as the promulgation of zoning ordinances, do not constitute a regulatory taking so long as the government’s interest outweighs any burden imposed on the property owner (Cheyenne Airport Bd. v. Rogers, 1985). In determining the impact of the regulation on the owner, the property must be viewed as whole, and the owner must show that the regulation has affected investment-backed expectations, diminished the property’s market value, and undermined any reasonable remaining economic use. In Rogers, the court ruled that a city, exercising its zoning power, can limit the height of trees on private property underneath flight approaches to the local airport without being liable for compensation. Furthermore, the court concluded that such a zoning ordinance is not an inverse condemnation, unless there is “evidence of substantial interference with the use and enjoyment of the surface.”

In a takings case, just compensation is determined by the loss or damage to the property or property right using the principle of fair market value (State Highway Commission v. Scrivner, 1982; Coronado Oil Co. v. Grieves, 1982). Damages are based on the difference between fair market value of the property before the taking and its value after the taking, which includes the value of the land actually taken and the amount by which the remaining property is reduced in value as a result of the taking (State Highway Commission v. Scrivner, 1982; Coronado Oil Co. v. Grieves, 1982).63 Compensation is not available for injury to a property owner’s business or for personal losses or emotional distress (Mayland v. Flitner, 2001; Miller v. Campbell County, 1993; State Highway Commission v. Scrivner, 1982; Sheridan Drive-in Theatre, Inc. v. State, 1963). But consequential damages can be awarded for damage to a property owner’s remaining or abutting property as long as the taking—or exercise of the eminent domain power—causes the damage (Wyoming State Highway Dept. v. Napolitano, 1978; Hirt v. City of Casper, 1940). Property owners are entitled to receive interest on a judicial just compensation award (Wyoming Railway v. Leiter, 1917), but not from an administrative agency unless the legislature has granted the agency that authority (Mayland v. Flitner, 2001). The Wyoming Supreme Court’s decision in Coronado Oil Co. (p. 104) v. Grieves (1982) established important evidentiary rules governing litigation of just compensation claims.

In Wyoming State Highway Dept. v. Napolitano (1978), the Wyoming Supreme Court ruled that this section is not self-executing; rather, it must be read in conjunction with Article 16, section 7, which establishes a prior notice requirement for claims against the state. According to the court, “Article 16, Section 7, is no more than a regulation of the procedure by which the rights guaranteed by Article 1, Section 33, will be exercised. It is not a substantive limitation imposed upon such rights.” Therefore, a statutory notice of claim requirement that effectively operates as a statute of limitations is permissible in inverse condemnation cases so long as it is reasonable (id.; North Laramie Land Co. v. Hoffman, 1923).

In In re Organization of Bench Canal Drainage District (1916), the Wyoming Supreme Court held that special assessments for organizing a drainage district do not constitute a taking of property. Similarly, assessments for irrigation districts that provide equivalent benefits to the district’s property owners do not constitute a taking (Sullivan v. Blakesley, 1926). Moreover, the Unemployment Compensation Act does not unconstitutionally take an employer’s property just because some of the money contributed may be distributed to persons other than his employees (Unemployment Compensation Commission v. Renner, 1943). In Atkinson v. Wittier (1982), the court upheld, against an unlawful takings claim, a statute denying public employees who worked less than five years a refund of their compulsory pension fund contributions.

Section 34  Uniform operation of general law.

All laws of a general nature shall have a uniform operation.

This section establishes a principle of uniformity in the law. The Wyoming Supreme Court has essentially treated this provision as another equal protection limitation, thus equating the principle of uniformity with the equality principle. This section should therefore be read in conjunction with Article 1, sections 2 and 3, as well as Article 3, section 27, which requires general rather than special laws in thirty-seven enumerated instances (May v. City of Laramie, 1942). Although the Wyoming Supreme Court has held that this section is similar to the Fourteenth Amendment equal protection requirement in the U.S. Constitution (Washakie County School Dist. No. One v. Herschler, 1980), it has also emphasized that the state’s equal protection provisions require more rigorous review than the federal standard (Allhusen v. State, 1995; Johnson v. State of Wyoming Medical Examiner’s Office, 1992).The court has rejected several challenges under this section upon finding that the law in question did not contain problematic or disparate classifications (Newport International Univ., Inc. v. State Dept. of Education, 2008; Reiter v. State, 2001; see also Art. 1, sec. 2). On occasion, the court has looked to California precedent to interpret this section, noting that the (p. 105) California Constitution contains a similar provision (Washakie County School Dist. No. One v. Herschler, 1980; Nehring v. Russell, 1978).

The Wyoming Supreme Court has generally relied upon the same constitutional doctrine to review challenges under this section as is used to analyze challenges under the Article 1, section 2 equality mandate. The court has developed a two-tiered standard of review—similar to the U.S. Supreme Court’s equal protection doctrine—to determine the validity of legislative classifications challenged under this section’s uniformity requirement. Unless the classification touches upon fundamental rights or involves a suspect class, the state court inquires whether it is reasonably or rationally related to a legitimate governmental objective (Hageman v. Goshen County School Dist. No. 1, 2011). This lower level of scrutiny is generally deferential to the legislature’s judgment; the challenger bears the burden of establishing the unreasonableness of the classification, and the courts have engaged in conjecture and hypothesis about the legislature’s goals to sustain the legislation (White v. State, 1989; Mountain Fuel Supply Co. v. Emerson, 1978). Similarly, the court has interpreted this section’s generality requirement to require only reasonable classifications that “operate in a similar manner upon all persons in the same circumstances” (White v. State, 1989; Meyer v. Kendig, 1982).64 But the court has emphasized that legislative classifications cannot be based on conjecture, unfounded assumptions, or unjustified prejudice (Allhusen v. State, 1995; Johnson v. State of Wyoming Hearing Examiner’s Office, 1992).

On the other hand, if the classification touches upon a fundamental right or affects a suspect class, the court has used strict scrutiny to review the challenged legislation, requiring the state to establish a compelling governmental objective and to use narrowly drawn means to accomplish the objective (Washakie County School Dist. No. One v. Herschler, 1980; DS v. Dept. of Public Assistance and Social Services, 1980). This higher standard of review gives no deference to the legislature and places the burden of justifying the classification on the state; it usually leads to invalidation of the legislation at issue. (See Art. 1, sec. 2 for further discussion about fundamental rights and suspect classes.)

Despite the alluring simplicity of this two-tiered equal protection review model, the Wyoming Supreme Court has not consistently followed it when evaluating challenged legislative classifications. Drawing upon Wyoming’s unique constitutional provisions and history, the court has employed a more rigorous review standard in several traditional scrutiny cases as noted above (Allhusen v. State, 1995; Johnson v. State of Wyoming Hearing Examiner’s Office, 1992), and it has developed another tier or branch of equal protection review reserved for legislation that inhibits access to the courts or that otherwise affects (p. 106) important—but perhaps not fundamental—individual interests. In a series of decisions, the court struck down legislation imposing limitations on access to the courts for traditional tort claims (Nehring v. Russell, 1978; Phillips v. ABC Builders, Inc., 1980; Hoem v. State, 1988). Rather than defer to the legislature’s judgment that certain classes of defendants should be treated differently from others, the court has stated that the classification “must rest not on conjecture but must be supported by something of substance” (Nehring v. Russell, 1978), and it has independently investigated the legislative record to assess the strength of the state’s interest (Allhusen v. State, 1995; Hoem v. State, 1988). In determining which individual interests merit such intensified scrutiny, the court has suggested that other provisions in the state constitution, such as Article 1, section 8 guaranteeing equal access to the courts, provide a basis for defining these interests (White v. State, 1989).65

Section 35  Ex post facto laws; impairing obligation of contracts.

No ex post facto law, nor any law impairing the obligation of contracts, shall ever be made.

This section prohibits ex post facto laws, as well as laws impairing contractual obligations. The ex post facto provision, according to the Wyoming Supreme Court, provides the same not a greater level of protection as the similar federal constitutional provision (Kammerer v. State, 2014). The ex post facto limitation applies to any law “which alters the situation of an accused to his disadvantage” (Lewis v. State, 1985; In re Jones, 1972; In re Wright, 1891), including any law “which makes more burdensome the punishment for a crime after its commission” (Smith v. State, 2009; Dobbert v. Florida, 1977). In In re Jones (1972), the court further defined an ex post facto law as any “law which deprives the accused of any substantial right or immunity possessed by him at the time when he is said to have committed the offense charged.” Changes in procedure, though, generally do not run afoul of this limitation (Loomer v. State, 1989; In re Jones, 1972).

The decisions provide some insight into how the Wyoming Supreme Court distinguishes between changes in substantive rights and procedure. In Loomer v. State (1989), the court held that a subsequently enacted cost reimbursement requirement effectively increased the criminal penalty to the substantive detriment of the defendant and was prohibited by this section. In Lewis v. State (1985), the court ruled that a recently enacted statute reducing the state’s burden of proof in insanity plea cases deprived the accused of a substantial right in violation of this section. Similarly, in In re Jones (1972), the court dismissed the (p. 107) state’s appeal in a juvenile delinquency case, finding that the statute in effect at the time of the offense did not authorize such an appeal. On the other hand, the early In re Wright (1891) decision upheld a prosecution based on an information (which had been statutorily authorized only after the crime occurred) rather than a grand jury indictment because this change did not alter the defendant’s situation to his disadvantage.

The ex post facto limitation also applies to administrative agencies and prohibits any agency from imposing “criminal in nature” penalties, including a license suspension or fine, beyond those authorized by the statutes in effect at the time of the violation (Ballard v. Wyoming Pari-Mutuel Commission, 1988). The parole board’s amendment to its rules allowing certain prisoners to only apply for a commutation at five-year intervals rather than every year as previously allowed was not an ex post facto violation, because commutations are “wholly discretionary and unpredictable” so there was no “significant risk” of an increased punishment (Bird v. Wyoming Bd. of Parole, 2016).

Two recent cases have addressed whether the amended Wyoming Sex Offender Registration Act, with its registration requirements and imprisonment provision, violated the ex post facto clause (Snyder v. State, 1996; Kammerer v. State, 2014). In both cases, the Wyoming Supreme Court employed the federal ex post facto test to conclude that the statutory provisions were regulatory rather than punitive. The pertinent factors included whether the regulatory scheme: “has been regarded in our history and traditions as punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a non-punitive purpose; or is excessive with respect to its purpose” (Kammerer v. State, 2014). See also Smith v. State (2009), utilizing federal precedent to sustain the state’s habitual criminal act against an ex post facto law attack.

The Wyoming Supreme Court has held that contract rights are not absolute (State v. Langley, 1938). Consequently, the legislature may restrict or limit contractual rights, so long as it is reasonably exercising the state’s police power (State Farm v. Wyoming Insurance Dept., 1990; In re Gillette Daily Journal, 1932).66 In assessing the validity of police power regulations, the court has asked whether the regulation has an incidental effect on the contractual agreement (Mountain Fuel Supply Co. v. Emerson, 1978; State Farm v. Wyoming Insurance Dept., 1990) and whether the area being regulated is otherwise heavily regulated, such as the insurance industry (State Farm v. Wyoming Insurance Dept., 1990). In In re Hagood (1960), however, after noting that laws existing at the time a contract (p. 108) is made effectively become a part of it, the court held that “a statute may not be applied retroactively so as to deprive contracting parties of their rights.” And in Mustanen v. Diamond Coal and Coke Co. (1936), the court established a strong presumption that statutes should ordinarily operate prospectively unless “it is impossible to avoid a retrospective operation.”

The prohibition against impairing contractual obligations does not apply to public, as opposed to private, corporations; thus, the legislature was entitled to repeal the charter establishing a state agricultural college (State ex rel. Wyoming Agriculture College v. Irvine, 1906).

Section 36  Rights not enumerated reserved to people.

The enumeration in this constitution, of certain rights shall not be construed to deny, impair, or disparage others retained by the people.

This section directs the Wyoming courts not to deny or disregard a claimed right because it is not expressly enumerated. According to the Wyoming Supreme Court: “This constitutional provision stands as an acknowledgment that fundamental personal rights, not specifically enumerated in the constitution, still are protected from governmental infringement” (Watt v. Watt, 1999; see also Cross v. State, 1962; In re GP, 1984; Employment Security Commission v. Western Gas Processors, Ltd., 1990; Johnson v. State of Wyoming Hearing Examiner’s Office, 1992). The language and purpose of this provision appears similar to that of the Ninth Amendment.67 Indeed, in Employment Security Commission v. Western Gas Processors, Ltd. (1990), the court suggested that the right to privacy may be located in this provision. This provision, therefore, may protect unenumerated substantive and procedural constitutional rights.

In Cross v. State (1962), the Wyoming Supreme Court relied on an unenumerated right to protect one’s property to reverse the conviction of a rancher who admitted illegally shooting two moose after exhausting all alternatives to protect his property. Rejecting the state’s argument that defense of property could not be a right because it was not explicitly mentioned in the Wyoming Constitution, the court noted that the constitution measures the power of government, not the rights of the governed. To locate and define protectable but unenumerated rights, the court indicated that this provision should be read in conjunction with (p. 109) the reference to natural rights in Article 1, section 3 and the Article 1, section 6 due process of law provision. Moreover, in State v. Langley (1938), the court concluded that “natural rights are recognized by our constitution,” and the “natural right of any person to protect themselves or their property” was discussed during the constitutional convention (Journal, p. 402).

In DS v. Dept. of Public Assistance and Social Services (1990), Matter of GP (1980), and Nulle v. Gillette-Campbell Fire Board (1990), the Wyoming Supreme Court relied upon this section to declare the right to associate with one’s immediate family as fundamental, even though such a right is not enumerated. These cases, in turn, rely upon In re Voss’ Adoption (1976), which held that parents have a natural right to their children, even though that right is not enumerated. See also RS v. Johnson County Dept. of Family Services (1999), which reaffirms this unenumerated right. Further, in Watt v. Watt (1999), the court invoked this section to protect a citizen’s right to travel,68 including a custodial parent’s right to relocate with her children following a divorce.

Section 37  Constitution of the United States supreme law of land.

The State of Wyoming is an inseparable part of the federal union, and the constitution of the United States is the supreme law of the land.

Consistent with the supremacy clause in Article 6 of the U.S. Constitution, this section provides that the U.S. Constitution is the supreme law within Wyoming, which is part of the federal union. The Wyoming Supreme Court has consistently recognized that the U.S. Supreme Court is the final interpreter of the U.S. Constitution and that its rulings are binding on the state’s courts (Doe v. Burk, 1973; Torres v. Laramie County School Dist. No. 1, 1973; State ex rel. Mansfield v. State Bd. of Law Examiners, 1979). At the same time, the court has noted that the federal constitutional rights recognized by the U.S. Supreme Court are minimal, and it is free to enlarge upon these rights when interpreting the state constitution (Richmond v. State, 1976; Cheyenne Airport Bd. v. Rogers, 1985).69 Under supremacy clause principles, however, federal laws and regulations prevail over—or preempt—contrary state laws. Preemption occurs when state law conflicts with federal law, which requires an inquiry into whether it is physically impossible to comply with both federal and state law or whether state law obstructs the accomplishment of congressional objectives (Guy v. Lampert, 2016).

(p. 110) Section 38  Right of health care access.

(a)  Each competent adult shall have the right to make his or her own health care decisions. The parent, guardian or legal representative of any other natural person shall have the right to make health care decisions for that person.

(b)  Any person may pay, and a health care provider may accept, direct payment for health care without imposition of penalties or fines for doing so.

(c)  The legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.

(d)  The state of Wyoming shall act to preserve these rights from undue governmental infringement.

Added to the constitution in 2012, this section is perhaps best described as a “message” amendment, expressing the state’s displeasure with the controversial federal Affordable Care Act, which expanded medical coverage nationally and required individuals to secure health insurance. This section protects the individual right to make health care decisions and to contract with chosen health care providers. Further, the state is directed to preserve these rights from governmental infringement. Because the U.S. Supreme Court, in National Federation of Independent Business v. Sebelius (2012), upheld the Affordable Care Act, this section seems largely preempted by that federal law and thus of limited relevance.

Section 39  Opportunity to hunt, fish and trap.

The opportunity to fish, hunt and trap wildlife is a heritage that shall forever be preserved to the individual citizens of the state, subject to regulation as prescribed by law, and does not create a right to trespass on private property, diminish other private rights or alter the duty of the state to manage wildlife.

This section was added to the constitution in 2012 to protect individual hunting, fishing, and trapping opportunities, subject to state wildlife management regulations and private property rights. Modeled after similar provisions recently added to other western state constitutions, it was designed to preempt anti-hunting groups from seeking legal limits on hunting and trapping practices.

Footnotes:

1  See G. Alan Tarr, Understanding State Constitutions 161–70 (1998).

2  See infra Part II, Article 1, sections 4, 14.

3  In Vasquez v. State, 990 P.2d 476, 485 n.4 (1999), the court also identified four general models for analyzing state constitutional provisions with counterpart federal provisions, described as the primacy model, interstitial model, sovereignty model, and lockstep model. See also Randy J. Holland, State Constitutions: Purpose and Function, 69 Temple L. Rev. 989, 104 (1996); Robert B. Keiter, An Essay on Wyoming Constitutional Interpretation, 21 Land & Water L. Rev. 527, 541–50 (1986).

4  Saldana v. State, 846 P.2d 604, 624 (1993) (Golden, J., concurring).

5  Id.; see also Bear Cloud v. State, 334 P.3d 132, 137 (2014).

6  Bear Cloud, id. at 137.

7  Dworkin v. L.F.P., Inc., 839 P.2d 903, 909 (1992); see also Vasquez v. State, 990 P.2d 476, 484 (Wyo. 1999).

8  846 P.2d at 622 (Golden, J., concurring) (quoting from State v. Gunwall, 720 P.2d 808, 811 (Wash. 1986)).

9  Cathcart v. Meyer, 88 P.3d 1050, 1066 (Wyo. 2004) (quoting 16 Am. Jur. 2d Constitutional Law § 1 (1998)).

10  But see City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), holding that classifications that disadvantage the mentally handicapped must be justified by information in the record.

11  See also State ex rel. Wyoming Ass’n of Consulting Engineers and Land Surveyors v. Sullivan, 798 P.2d 826 (Wyo. 1990), invalidating a subsequently enacted Professional Review Panel Act on equal protection grounds.

12  See Catherine Connolly, Gay Rights in Wyoming: A Review of Federal and State Law, 11 Wyo. L. Rev. 125 (2011).

13  Because the Wyoming Supreme Court has recognized a relation between the right to privacy and Article I, section 36 (reserved rights clause), this section may be read in conjunction with that section. Employment Security Com’n v. Western Gas Processors, Ltd., 786 P.2d 866. 872 n.11 (Wyo. 1990); Johnson v. State of Wyoming Hearing, Examiner’s Office, 838 P.2d 158, 165 (Wyo. 1992).

14  See Kenneth DeCock & Erin Mercer, Balancing the Scales of Justice: How Will Vasquez v. State Affect Vehicle Searches Incident to Arrest in Wyoming?, 1 Wyo. L. Rev. 139 (2001); Mervin Mecklenburg, Fixing O’Boyle v. State—Traffic Detentions Under Wyoming’s Emerging Search and Seizure Standard, 7 Wyo. L. Rev. 69 (2007).

15  But cf. Katz v. United States, 389 U.S. 347 (1967); Rakas v. Illinois, 439 U.S. 128 (1978) (abandoning the property rights factor as part of Fourth Amendment analysis and focusing instead on legitimate expectations of privacy).

16  In Smith v. State, 311 P.3d 132 (Wyo. 2013), faced with the U.S. Supreme Court’s Fourth Amendment ruling in Missouri v. McNeely, 569 U.S. __, 133 S. Ct. 1552 (2013), the Wyoming Supreme Court ruled that the natural metabolization of alcohol in the bloodstream does not present a per se exigency for purposes of this section’s warrant requirement for nonconsensual blood testing in drunk driving cases.

17  See Julianne Gern, Students Shed Wyoming Constitutional Rights at the Schoolhouse Gate: The Wyoming Supreme Court Upholds a Policy of Random, Suspicionless Drug Testing of Students; Hageman v. Goshen County School Dist. No. 1, 13 Wyo. L. Rev. 647 (2013).

18  In Jones v. State, 902 P.2d 686 (Wyo. 1995), the Wyoming Supreme Court overruled its earlier decision in Jesse v. State, 640 P.2d 56 (Wyo. 1982), which had held that the plain view doctrine applied only under exigent circumstances. The court, persuaded by the plurality’s opinion in Coolidge v. New Hampshire, 403 U.S. 443 (1971), held that “those objects which an officer has probable cause to believe are possible evidence and which are in the officer’s plain view when the officer is lawfully present in the place where the objects are found are subject to a warrantless seizure without the necessity of exigent circumstances being present, and we hold that those objects may be introduced into evidence.” 902 P.2d at 692.

19  See also Pecha v. Smith, Keller & Associates, 942 P.2d 387 (Wyo. 1997), which evidently found the state action requirement was met in a due process challenge to arbitration proceedings.

20  See Art. 3, sec. 1; Art. 7, sec. 20; Art. 10, sec. 2.

21  See Wyo. Stat. Ann. 5-1-107(a) (providing that Wyoming courts “may exercise jurisdiction on any basis not inconsistent with the Wyoming or U.S. constitution”). For cases analyzing due process principles for personal jurisdiction purposes, see Markby v. St. Anthony Hospital System, 647 P.2d 1068 (Wyo. 1982); O’Bryan v. McDonald, 952 P.2d 636 (Wyo. 1998); Cheyenne Publishing, LLC v. Starostka, 94 P.3d 997 (Wyo. 2004).

22  See also TOC v. TND, 46 P.3d 863 (Wyo. 2002) (applying clear and convincing evidentiary standard in adoption proceedings); but see JJF v. State, 132 P.3d 170 (Wyo. 2006) (refusing to apply clear and convincing evidentiary standard for registration under the state’s sex offender statute).

23  See also Rabuck v. State, 129 P.3d 861 (Wyo. 2006) (distinguishing between facial and as applied vagueness challenges and articulating the standards governing as applied challenges); McCone v. State, 866 P.2d 740 (Wyo. 1994) (discussing both facial and as-applied vagueness challenges).

24  See also Mills v. Reynolds, 837 P.2d 48 (Wyo. 1992), holding that “the right to access to the courts is a fundamental right pursuant to Article 1, Section 8.”

25  See generally David Minge, Governmental Immunity from Damage Actions in Wyoming, 7 Land & Water L. Rev. 229 and 617 (1972); Lawrence J. Wolfe, Wyoming’s Governmental Claims Act: Sovereign Immunity with Exceptions—A Statutory Analysis, 15 Land & Water L. Rev. 619 (1980); Michael A. Deal, Sovereign Immunity of the State of Wyoming—Oroz v. Bd. of County Comm’rs, 575 P.2d 1155 (Wyo. 1978), 14 Land & Water L. Rev. 271 (1979).

26  Indeed, the Greenwalt dissent criticizes the majority’s willingness to adopt deferential federal equal protection principles to evaluate an immunity provision classification in the state’s liquor laws, asserting that rational basis scrutiny in “the Wyoming Constitution provides greater protection against legal discrimination than the federal constitution does.” Greenwalt v. Ram Restaurant Corp. of Wyoming, 71 P.3d 717, 745 (Wyo. 2003) (Kite, J., dissenting).

27  See also Mills v. Reynolds, 837 P.2d 48, 71 (Wyo. 1992) (Golden, J., dissenting).

28  See Worthington v. State, 598 P.2d 796, 809–12 (Wyo. 1979) (Rose, J., dissenting), for the argument that Article 1, section 8 should be interpreted as constitutionally authorizing suits against the state, subject only to the legislature’s power to establish procedural and venue requirements.

29  See also Rule 38 of the Wyoming Rules of Civil Procedure, providing for a jury trial in certain types of civil actions.

30  See Kellsie J. Nienhuser, Prejudiced by the Prejudice Prong: Proposing a New Standard for Ineffective Assistance of Counsel in Wyoming after Osborne v. State, 14 Wyo. L. Rev. 161 (2014).

31  In Faretta v. California, 422 U.S. 806, 835 (1975), the U.S. Supreme Court stated that a defendant wanting to represent himself or herself should be made aware of the dangers and disadvantages. The appellate record should establish that “he knows what he is doing and his choice is made with eyes open.”

32  The Wyoming Supreme Court has noted, however, that hearsay testimony rules and the confrontation clause “are distinct concepts and objections grounded upon these principles incorporate separate analyses.” Accordingly, the court requires that “separate objections should be made for hearsay violations and confrontation clause violations in order to fairly alert the trial court so it can make an informed decision based upon the specific legal issues involved” Vigil v. State, 98 P.3d 172 (Wyo. 2004).

33  See Rule 24(d) of the Wyoming Rules of Criminal Procedure, which details the number of peremptory challenges granted criminal defendants and the state in felony and misdemeanor cases.

34  In Oldman v. State, 998 P.2d 957 (Wyo. 2000), curiously, the court cited Article 1, section 9 for the impartiality standard rather than Article 1, section 10. Id. at 963–64.

35  The grounds for arrest of judgment are similar to a lack of jurisdiction claim. A motion for arrest of judgment must be based on an objection that arises from the face of the record and that makes the proceedings apparently erroneous. No defect of evidence can be urged for arrest of judgment. See Territory of Wyoming v. Pierce, 1 Wyo. 168, 170–71 (1874); Elliott v. State, 30 P.2d 791 (Wyo. 1934).

36  The Dickerson holding that the exclusionary rule is constitutionally mandated seems to square with earlier Wyoming Supreme Court decisions suggesting a similar constitutional origin for the rule. See Brown v. State, 738 P.2d 1092 (Wyo. 1987); Dryden v. State, 535 P.2d 483 (Wyo. 1975); State v. Peterson & State v. Romano, 194 P. 342 (Wyo. 1920); Maki v. State, 112 P. 334 (Wyo. 1911).

37  See also Davis v. United States, 512 U.S. 452 (1994) (establishing Fifth Amendment waiver standards).

38  As a result of the Tortolito and Clenin rulings, the fact of arrest is no longer determinative of whether the defendant’s right to remain silent has attached as a matter of Wyoming constitutional law. In pre-Tortolito cases, to determine if an arrest had occurred, the Wyoming Supreme Court looked to the circumstances and the accused’s subjective state of mind (Oien v. State, 797 P.2d 544 (Wyo. 1990); Simonds v. State, 762 P.2d 1189 (Wyo. 1988); Phillips v. State, 774 P.2d 118 (Wyo. 1989); Rodarte v. City of Riverton, 552 P.2d 1245 (Wyo. 1976)). In Rodarte, for example, the court ruled that an arrest occurred when a police officer “issues an order in a way which causes the subject to believe he must obey the command which, if obeyed, results in a restriction upon freedom.”

39  See also Arizona v. Fulminante, 499 U.S. 279 (1991) (permitting forced confessions to be introduced into evidence under certain circumstances notwithstanding the Fifth Amendment); Brecht v. Abrahamson, 507 U.S. 619 (1993) (permitting infrequent references by the prosecution during trial to the defendant’s post-Miranda silence).

40  In Hamilton v. State, 344 P.3d 275 (Wyo. 2015), the Wyoming Supreme Court identified a potential double jeopardy problem when a district court, at the prosecution’s request, increased a criminal defendant’s original sentence after he failed to fulfill a plea bargain agreement. In this matter of first impression, the court avoided the constitutional issue by ruling that the district court lacked jurisdiction to increase the sentence once the case was final and the time for appeal had expired.

41  Because double jeopardy prevents “the sentencing court from prescribing greater punishment than the legislature intended,” Missouri v. Hunter, 459 U.S. 359, 366 (1983), the protection against multiple punishments is determined by examining the elements of the statutes in question under the analysis suggested by Blockburger v. United States, 284 U.S. 299 (1932). Lauthern v. State, 769 P.2d 350, 354 (Wyo. 1989). In Cook v. State, 841 P.2d 1345 (Wyo. 1992), the Wyoming Supreme Court firmly endorsed the Blockburger “same-elements test,” overruling its earlier decision in Birr v. State, 744 P.2d 1117 (Wyo. 1987), and concluding that multiple punishments are not permitted for felony murder and the underlying felony. See Michael S. Rankin, Consecutive Sentences for Felony Murder and the Underlying Felony: Double Jeopardy or Legislative Intent? Birr v. State, 744 P.2d 1117 (Wyo. 1987), 23 Land & Water L. Rev. 603 (1988).

42  Gordon M. Bakken, Rocky Mountain Constitution Making 25–26 (1987).

43  But see Saunders v. Hornecker, 344 P.3d 771, 881 n. 6 (Wyo. 2015), citing Vigil v. State, 563 P.2d 1344, 1349 (Wyo. 1977), for the proposition that in the bail context “Wyoming jurisprudence is consistent with the protections afforded by the federal constitution.” Perhaps the contrary Simms assertion that the state constitution’s bail protections exceed those in the federal constitution is best explained by the Simms holding, which prohibits trial courts from denying bail on the grounds that the defendant is a flight risk.

44  But see Hopkinson v. State, 632 P.2d 79, 204 (Wyo. 1981) (Rose, C. J., dissenting in part and concurring in part). Emphasis added in the text.

45  The Fisher court also cited and relied upon State v. Becker, 51 N.W. 1018 (S.D. 1892), a South Dakota Supreme Court ruling that articulated the standard as being “so excessive or so cruel as to meet the disapproval and condemnation of the conscience and reason of men generally.”

46  See also Hubbard v. State, 175 P.3d 625, 630 (Wyo. 2008), where the court held that it “will not participate in such comparisons [with others convicted of similar crimes] unless the mode of punishment is unusual or where the relative length of the sentence to imprisonment is extreme when compared to the gravity of the offense.”

47  In the Bear Cloud case, although the defendant made a passing reference to the Wyoming Constitution’s cruel or unusual punishment provision, he did not develop an “articulable, reasonable and reasoned” state constitution argument, so the court considered only his federal constitutional argument. 334 P.3d at 136–37.

48  For an extensive analysis of how Wyoming’s state habeas corpus proceedings affect a state prisoner’s federal habeas corpus rights, see Hamill v. Ferguson, 937 F. Supp. 1517 (D. Wyo. 1996), affirmed, 125 F.3d 862 (10th Cir. 1997).

49  See Gordon M. Bakken, Constitutional Convention Debates in the West: Racism, Religion, and Gender, 3 West. Legal Hist. 213, 214–19 (1990).

50  In dissent, Justice Golden argued that the city’s anti-littering ordinance represented a reasonable time, manner, and place regulation that was appropriately applied in this instance to prohibit the newspaper distributor from casually tossing papers into resident’s yards. Miller v. City of Laramie, 880 P.2d 594, 599–601 (Wyo. 1995).

51  But see Spriggs v. Cheyenne Newspapers, Inc., 182 P.2d 801, 803–4 (Wyo. 1947), construing Article 1, section 20 to require a showing in libel actions that the truth is “published with good intent and [for] justifiable ends”—a standard that probably exceeds First Amendment requirements. New York Times v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). See also Foothill Indus. Bank v. Mikkelson, 623 P.2d 748, 758 (Wyo. 1981).

52  See Henry F. Bailey, Freedom of Expression and the Constitutional Privilege to Defame. Adams v. Frontier Broadcasting Co., 555 P.2d 556 (Wyo. 1976), 12 Land & Water L. Rev. 749 (1977).

53  See also Circuit Court of the Eighth Judicial Dist. v. Lee Newspapers, 332 P.3d 523 (Wyo. 2014), where the Wyoming Supreme Court concluded that the circuit court violated the First Amendment by closing a preliminary hearing and sealing the case file in a sexual assault case involving a minor child victim.

54  See Stephen Jouard, Constitutional Law—A Constitutional Right of Access to State-Held Information. Sheridan Newspapers Inc. v. City of Sheridan, 660 P.2d 785 (Wyo. 1983), 19 Land & Water L. Rev. 719 (1984).

55  See Pickering v. Bd. of Education, 391 U.S. 563 (1968) (extending First Amendment protection to public employees who speak as a citizen on matters of public concern); but see Garcetti v. Ceballos, 547 U.S. 410 (2006) (rejecting First Amendment protection for public employees who make statements pursuant to their official duties).

56  See also Bolger v. Youngs Drug Product Corp., 463 U.S. 60 (1983); Central Hudson Gas v. Public Service Comm’n of New York, 447 U.S. 557 (1980).

57  See also Ericksen v. School Dist. No. 2, 217, P.2d 887, 897 (Wyo. 1950) (Riner, C. J., dissenting) (citing Art. 1, sec. 23 for the proposition that “the people of this state were deeply interested in establishing an educated citizenry”).

58  See also Simons v. Laramie County School Dist. No. One, 741 P.2d 1116 (Wyo. 1987) (applying strict scrutiny to invalidate a state executive decision withholding local school district funds); see generally Joseph B. Meyer & Edgar Young, School Finance Reform in Wyoming, 19 Land & Water L. Rev. 135 (1984).

59  See Robert J. Walters, Education for Handicapped Children in Wyoming: What Constitutes a Free Appropriate Public Education and Other Administrative Hurdles, 19 Land & Water L. Rev. 225 (1984); Fred Hartmeister, Educational Law—Wyoming Refuses to Recognize Compensatory Education as a Remedy Under the Education for All Handicapped Children Act of 1975, 24 Land & Water L. Rev. 529 (1989).

60  But see amended Article 15, section 17 authorizing the legislature to distribute special school district tax funds outside the taxing district.

61  Cf. Police Protective Ass’n of Casper v. City of Casper, 575 P.2d 1146 (Wyo. 1978) (relying upon common law principles to invalidate a collective bargaining agreement of apparently indefinite duration).

62  John D. Hicks, The Constitutions of the Northwest States 146–47 (1923); Gordon M. Bakken, Rocky Mountain Constitution Making, 1850–1912 29–35 (1987).

63  See also Barlow Ranch v. Greencore Pipeline Co., 301 P.3d 75 (Wyo. 2013) (interpreting the compensation provisions of the state’s Eminent Domain Act, Wyo. Stat. Ann. sec. 1-26-701 et seq.); Bailey K. Schreiber, Strong Armed at Arm’s Length: The Role of Comparable Easements in Condemnation Proceedings Under Wyoming’s Amended Eminent Domain Laws; Barlow Ranch v. Greencore Pipeline Co., 14 Wyo. L. Rev. 135 (2014).

64  For recent application of this deferential standard of equal protection review in a series of criminal cases, see Kelly v. State, 199 P.3d 521 (Wyo. 2009); Giles v. State, 96 P.3d 1027 (Wyo. 2004); Johnson v. State, 61 P.3d 1234 (Wyo. 2003).

65  See Robert B. Keiter, An Essay on Wyoming Constitutional Interpretation, 21 Land & Water L. Rev. 527 (1986).

66  Cf. United States Trust Co. of New York v. New Jersey, 431 U.S. 1 (1977) (holding that the U.S. Constitution’s contract clause does not prohibit legitimate exercises of a state’s police power simply because private contracts may be impaired or even destroyed and noting that individuals could otherwise secure immunity from state regulation simply by entering a private contractual arrangement). See also Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400 (1983).

67  “The Reserved Rights Clause (Ninth Amendment) was ‘proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.’ ” Employment Sec. Com’n v. Western Gas, 786 P.2d 866, 872 n.10 (Wyo. 1990). See also Griswold v. Connecticut, 381 U.S. 479, 488–89 (1965); Randy Barnett, Reconceiving the Ninth Amendment, 74 Cornell L. Rev. 1 (1988); Symposium on Interpreting the Ninth Amendment, 64 Chi.-Kent L. Rev. 37 (1988).

68  In recognizing a citizen’s right to travel, the court also relied upon the U.S. Supreme Court’s ruling in Shapiro v. Thompson, 394 U.S. 618 (1969), and other federal constitutional precedent.

69  See Michigan v. Long, 463 U.S. 1032 (1983) (holding that the U.S. Supreme Court will not review state court decisions clearly based upon adequate and independent state law grounds).