Johnson, Matter of, 2

Citation568 P.2d 855
Decision Date15 August 1977
Docket NumberNo. 2,2
PartiesIn the Matter of the Removal of Earl R. JOHNSON, Jr., a Justice of the Peace within and for Natrona County, Wyoming. JPR
CourtUnited States State Supreme Court of Wyoming

Richard G. Miller of Miller & Miller, Casper, filed written brief and appeared in oral argument for Earl R. Johnson, Jr.

Arnold B. Tschirgi, Fremont County Pros. Atty., Lander, who was designated to present the complaint, filed written brief but did not appear in oral argument.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

ROSE, Justice.

Earl R. Johnson, Jr., respondent herein, was first appointed a justice of the peace for Natrona County, Wyoming, on July 9, 1970. On January 28, 1976, an investigator for the Casper Police Department filed a written complaint against the respondent alleging certain acts of misconduct. Pursuant to Rule 5(c), Wyoming Administrative Rules, Justice of Peace Courts (W.Adm.R.J.C.), we convened a three-judge hearing panel of district judges to investigate the alleged grounds for removal of the respondent, as justice of the peace, and to determine whether a hearing on the charges should be held. Based upon the investigation, the panel determined that such a hearing should be held, and respondent was served with a written notice of the charges for his removal and the time and place for hearing, on August 9, 1976. After a hearing on October 21 and 22, 1976, the three-judge panel rendered its findings of fact and conclusions of law on January 3, 1977. The panel's report set forth 14 separate findings of fact, 1 and concluded that the

respondent was not guilty of three of the grounds for removal as set forth in Rule 5(b), W.Adm.R.J.C., 2 but was "shown by the evidence to be guilty of conduct prejudicial to the administration of justice or that brings the judicial office into disrepute." It now is our obligation, under Rule 5(b), W.Adm.R.J.C., supra, to consider the applicable law the record and to then make a disposition concerning the removal or retention of Earl R. Johnson, Jr., as a justice of the peace.

GROUNDS FOR REMOVAL

Since this is a case of first impression with respect to the removal of a judicial officer in Wyoming, we find it necessary to dispose of certain preliminary matters before reaching the merits of this removal action. In response to this court's order to show cause why removal from office should not be decreed, respondent contends that he cannot be removed from office on grounds other than those contained in Article 3, § 19, Constitution of Wyoming. Article 3, § 19, supra, provides:

"All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law." (Emphasis supplied)

Respondent reasons that since the hearing panel found him not guilty of "wilful and persistent failure to perform his duties" and of "wilful misconduct in office," this court has no power to remove him from his office. Justice Johnson's argument is further premised on the contention that § 5-99.8, W.S.1957, 1975 Cum.Supp., 3 which vests this ". . . it appears to be the rule in many states that any power existing in a state court to remove a state judge from office must be based upon express constitutional provisions or upon valid statutory enabling provisions enacted thereunder. . . ." 53 A.L.R.3d 882, 894.

court with disciplinary powers over justices of the peace, does not give us power to create new and different grounds for removal in addition to those enumerated in Article 3, § 19, supra. It has been stated that

We agree with that statement of the law, while at the same time finding that the grounds for removal of a justice of the peace are no longer limited to those contained in Article 3, § 19, supra.

This court set forth the general rule in People ex rel. Emerson v. Shawver, 30 Wyo. 366, 222 P. 11, 29 (1924):

". . . That the Legislature is without power as to this office, so created by the Constitution, to add to the causes for removal therein (Article 3, § 19, supra) specified. . . ." (Emphasis and bracketed matter supplied)

We went on in Sahwver to cite with approval the case of State v. Prater, 48 N.D. 1240, 189 N.W. 334, wherein it was stated:

" 'This legislative power of removal concerning a public office created by statute (italics ours) is not subject to the restrictions of the constitutional provisions concerning the removal of certain officers by impeachment or other officers upon stated grounds.' " (Emphasis and bracketed matter from text)

The essential determination to be made then, is whether the office of justice of the peace is a constitutionally-created or legislatively-created office.

In order to come to this decision, several constitutional provisions must be considered. Prior to its amendment by the people, proclaimed effective January 17, 1967, Article 5, § 1, of the Wyoming Constitution, provided:

"The judicial power of the state shall be vested in the senate, sitting as a court of impeachment, in a supreme court, district courts, justices of the peace, courts of arbitration and such courts as the legislature may, by general law, establish for incorporated cities or incorporated towns." (Emphasis supplied)

Senate joint Resolution No. 1, Session Laws of Wyoming, 1965, p. 518, authorized the submission of the following amendment to this section, which was adopted by vote of the people at a general election:

"The judicial power of the state shall be vested in the senate, sitting as a court of impeachment, in a supreme court, district courts, and such subordinate courts as the legislature may, by general law, establish and ordain from time to time."

In addition to amending Article 5, § 1, supra, the constitutional amendment also provided for the repeal of Article 5, §§ 22 and 23, of the Wyoming Constitution, relating to the jurisdiction and election of justices of the peace and to appeals from justices' courts. Senate Joint Resolution No. 1, Session Laws of Wyoming, 1965, p. 519. It was further resolved that the following statement be endorsed on the proposed amendment by the Secretary of State of the State of Wyoming:

"Our state constitution establishes and prescribes the jurisdiction of justice of the peace courts; also, it gives the legislature authority to establish municipal and arbitration courts. This proposed amendment, if adopted, would eliminate all such courts from the constitution and, instead, would give the legislature the authority to establish the subordinate courts it deems best suited to our modern needs and provide for their jurisdiction and manner of functioning. In the meantime, the present system would continue in effect under existing statutes This short review of the justice of the peace court system permits us to reach several conclusions. First, at one time the justice of the peace court and, as a result, the office of justice of the peace, were of constitutional origin in Wyoming. Ballantyne v. Bower, 17 Wyo. 356, 99 P. 869, 871 (1909). Second, the people of Wyoming have eliminated the justice of the peace courts from the constitution, by constitutional amendment. It is true that usually the office of justice of the peace is considered to be a constitutional office as was once the case in Wyoming. In re Bowman, 225 Pa. 364, 368, 74 A. 203, 204 (1909). It is now, however, a creature of statute and, therefore, not subject to the constitution's removal provisions. Our inquiry would end at this juncture were it not for the existence of other apparently inconsistent constitutional provisions.

until changed by the legislature." (Emphasis supplied)

Article 3, § 18, of the Constitution of Wyoming provides:

"The governor and other state and judicial officers except justices of the peace, shall be liable to impeachment for high crimes and misdemeanors, or malfeasance in office, but judgment in such cases shall only extend to removal from office and disqualification to hold any office of honor, trust or profit under the laws of the state. The party, whether convicted or acquitted, shall, nevertheless, be liable to prosecution, trial, judgment and punishment according to law." (Emphasis supplied)

It is arguable, therefore, that if a justice of the peace is not subject to impeachment, then the removal provisions of Article 3, § 19, supra, must be applied, thus limiting the grounds for removal to those specified. We are, however, unable to reach such a conclusion. Constitutional provisions, like statutory provisions, may be repealed or abrogated by implication arising out of the adoption of changes in other constitutional provisions, rendering obnoxious, or ineffective, the original provisions not expressly repealed. Wright v. Jordan, 192 Cal. 704, 221 P. 915, 918 (1923); Egbert v. City of Dunseith, 74 N.D. 1, 24 N.W.2d 907, 909 (1946); People v. Field, 66 Colo. 367, 181 P. 526, 527-528 (1919); Jackson v. Consolidated Gov. of City of Jacksonville, Fla., 225 So.2d 497, 500-501 (1969); and 16 C.J.S. Constitutional Law § 7, at p. 35. To be sure, such repeals are not favored and will not be given effect unless there is an irreconcilable repugnance between the two provisions. Moore v. Brown, 350 Mo. 256, 165 S.W.2d 657, 663 (1942); and Adams v. City of Hobart, 166 Okl. 267, 27 P.2d 595, 599-600 (1933). Constitutional amendments, if possible, should be harmonized with other provisions of the constitution, and effect given to the whole instrument and to every section and clause. Luikart v. Higgins, 130 Neb. 395, 264 N.W. 903-905 (1936). If the provisions cannot be reconciled, then the subsequent provision shall prevail over the prior provision even if only a partial repeal by implication is necessary. Engelking v. Investment Board, 93 Idaho 217, 458 P.2d 213, 217 (1969).

We must ask, then, whether the provisions of Article 3, §§ 18 and 19, supra as they relate to justices of the peace are irreconcilable with the 1967 constitutional amendment, affecting ...

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