Johnson v. State Hearing Examiner's Office

• Decision Date: 26 August 1992
• Docket Number: Nos. 90-297,91-15,s. 90-297
• Parties: Tamara JOHNSON; Paul Radosevich; Jennifer Archibald; and Randy Hampton, Appellants (Petitioners), v. STATE of Wyoming HEARING EXAMINER'S OFFICE and the Division of Revenue and Taxation, Appellees (Respondents). Garrett M. McCARTY and Donald C. King, Petitioners, v. Marvin APPLEQUIST, Charles Brown III, and Nancy Freudenthal, in their official capacities as Commissioners of the State of Wyoming Tax Commission; the State of Wyoming, ex rel., the Department of Revenue and Taxation; and the Honorable Stuart S. Healy, Justice of the Municipal Court, in and for the City of Sheridan, Wyoming, Respondents.
• Court: Wyoming Supreme Court

Page 158

838 P.2d 158

Tamara JOHNSON; Paul Radosevich; Jennifer Archibald; and Randy Hampton, Appellants (Petitioners), v. STATE of Wyoming HEARING EXAMINER'S OFFICE and the Division of Revenue and Taxation, Appellees (Respondents).

Garrett M. McCARTY and Donald C. King, Petitioners, v. Marvin APPLEQUIST, Charles Brown III, and Nancy Freudenthal, in their official capacities as Commissioners of the State of Wyoming Tax Commission; the State of Wyoming, ex rel., the Department of Revenue and Taxation; and the Honorable Stuart S. Healy, Justice of the Municipal Court, in and for the City of Sheridan, Wyoming, Respondents.

Nos. 90-297, 91-15.

Supreme Court of Wyoming.

Aug. 26, 1992.

Tony S. Lopez of Zimmers and Lopez, Laramie, and Christopher H. Hawks, Student Intern, for appellants in case No. 90-297.

Anthony T. Wendtland and Kate M. Fox of Burgess, Davis, Carmichael & Cannon and the American Civil Liberties Union, Sheridan, for petitioners in case No. 91-15.

Joseph B. Meyer, Atty. Gen., Mary Guthrie, Senior Asst. Atty. Gen., and Milo M. Vukelich, Asst. Atty. Gen., for appellees in case No. 90-297 and respondents in 91-15.

Before THOMAS, CARDINE, URBIGKIT ^* and GOLDEN, JJ., and BROWN, Retired J.

URBIGKIT, Justice.

For our constitutional review, these cases present 1990 legislation intended in part to enforce state and municipal alcohol nonconsumption provisions for persons under majority, age nineteen. In attempting to deter consumption, the statutes provide retributory punishment via driver's license suspension where the offense for which the punishment is inflicted involves neither driving nor motor vehicle use.

In these consolidated cases, the appellants claim that Wyo.Stat. §§ 31-7-126 and 31-7-128(f)(i) and (ii) (Supp.1990) ¹ (license suspension statutes) are unconstitutional because they violate the equal protection and due process provisions of the state and federal constitutions, constitute cruel and unusual punishment, and represent constitutionally prohibited special legislation.

The appellants were less than nineteen years of age when convicted of possession or consumption of alcohol, apparently under city ordinance provisions restricting use or possession in non-public locations. The municipal courts sent the conviction records to the Department of Revenue and Taxation (Department) pursuant to Wyo.Stat. § 31-7-126 and the Department then suspended each driver's license for ninety days by direction of Wyo.Stat. § 31-7-128(f)(i) and (ii). In these appeals, we address issues that the Wyoming license suspension provisions violate the state constitution's guarantees regarding equal protection and due process, special legislation, cruel and unusual punishment, and double jeopardy. To support their arguments, appellants contend, among other claims, that the license suspension statutes violate even the minimum scrutiny test of equal protection. We agree and hold that Wyo.Stat. §§ 31-7-126 and 31-7-128(f)(i) and (ii) have several bases for invalidity by offending the protections guaranteed within the state Bill of Rights included in the Wyoming Constitution. State ex rel. Wyoming Ass'n of Consulting Engineers and Land Surveyors v. Sullivan, 798 P.2d 826 (Wyo.1990); Hoem v. State, 756 P.2d 780 (Wyo.1988).

I. ISSUES

Tamara Johnson (Johnson), Paul Radosevich (Radosevich), Jennifer Archibald (Archibald), and Randy Hampton (Hampton) state the following claim:

Wyoming Statute § 31-7-128(f)(i) [and] (ii) [are] unconstitutional because the punishment is excessive and disproportionate to the penalty imposed in similar cases and the statute discriminates against Petitioners based on their age and the statute constitutes special legislation.

Garrett McCarty (McCarty) and Donald King (King) raise the following issues:

A. Do W.S. 31-7-126 (Cum.Supp.1990) and W.S. 31-7-128(f) (Cum.Supp.1990) violate the United States Constitution by denying Appellants equal protection of the laws?

B. Do W.S. 31-7-126 (Cum.Supp.1990) and W.S. 31-7-128(f) (Cum.Supp.1990) violate the Wyoming Constitution by denying Appellants equal protection of the laws?

C. Do W.S. 31-7-126 (Cum.Supp.1990) and W.S. 31-7-128(f) (Cum.Supp.1990) deny Appellants due process under the United States Constitution because they are vague?

D. [Do] W.S. 31-7-126 (Cum.Supp.1990) and W.S. 31-7-128(f) (Cum.Supp.1990) deny Appellants due process under the Wyoming Constitution because they are vague?

E. Do W.S. 31-7-126 (Cum.Supp.1990) and W.S. 31-7-128(f) (Cum.Supp.1990) constitute cruel and unusual punishment under the Wyoming Constitution?

II. FACTS

The Wyoming legislation separates the people of Wyoming into three groups regarding the use or possession of alcohol and other controlled intoxicants. The first group is made up of persons who are at least twenty-one years old. These people may normally possess and ordinarily use alcohol legally (see, however, Wyo.Stat. § 12-5-502 (Supp.1992), "Liability for sale to child, ward or habitual drunkard when written notice thereof given"), but not "controlled substances." The second group is made up of persons who are either nineteen or twenty years old. These people may not use either alcohol or other controlled intoxicants legally, but if they are convicted of illegal use or possession, they will not lose their driver's licenses. ² The third group is made up of persons who are less than nineteen years old. They too may not use any intoxicants legally, or at least not in a public place. Wyo.Stat. § 12-6-101(b) (Supp.1992). Unlike the other groups, however, any member within this category will have his or her vehicle driving rights suspended if convicted of any disassociated offense for violating any law involving either legalized alcohol or illegal drugs. ³ Wyo.Stat. § 31-7-128(f); Wyo.Stat. § 31-7-120(b) (Supp.1991).

These appeals chronicle the current national examination of the use of alcoholic beverages by the younger members of our society as a constituent factor within this country's crisis of misuse of intoxicants by persons above a minimal level of perhaps age twelve and continuing thereafter through all age groups, but not necessarily notable for those past the age of 100. First addressed through the pressure of national legislation was the age of legal drinking which was raised by the Wyoming legislature to age twenty-one following threatened loss of federal funding by 1988 Wyo.Sess.Laws ch. 44, § 1. The 1990 enforcement legislation, 1990 Wyo.Sess.Laws ch. 92, § 1, since amended by 1991 Wyo.Sess.Laws ch. 233, § 1 was another effort to bring abstinence to our youth under the age of nineteen, but not to be applied to those older than nineteen and under the federally mandated minimum age of twenty-one. ⁴

The present statutory provisions for these minor in possession or use driver's license suspension provisions are derived from acts of the legislature in two separate sessions. The initiating law was 1990 Wyo.Sess.Laws ch. 92 and the source of the litigation now pending. That statute was amended by 1991 Wyo.Sess.Laws ch. 233 which was enacted to remove the car insurance cost impact factor from the suspension provisions. See Wyo.Stat. § 31-7-120(b).

The historical derivation of these statutes is not provided by any record presently available to this court. Whether the Legislative Service Office has any documentation which could be judicially noticed is not presently disclosed as an origin state or authoritative basis for the legislation. There are five states found which have statutory tie-in provisions of the same general characteristics, but none are similar in terms to provide an operational system for revocation such as is found in the Wyoming statutes.

The statutes have dual provisions. Wyo.Stat. § 31-7-108(b)(vii) (Supp.1991) provides that if a person under the age of nineteen years "has been convicted of any offense regarding the possession, delivery, manufacture or use of * * * alcohol within the preceding twelve (12) months" they shall not secure the issuance or renewal of any driver's license. (Emphasis added.) Wyo.Stat. § 31-7-128(f) provides that any person under the age of nineteen years convicted of "violating any law regarding the possession, delivery, manufacture or use of * * * alcohol" shall result in the Department's suspension of any existent driver's license or nonresident operating permit. (Emphasis added.) The mandatory and automatic suspension period as action of the administrative agency licensing division is ninety days for the first conviction and six months for a second conviction within the preceding twelve months. Id.

1990 Wyo.Sess.Laws ch. 92 became effective July 1, 1990 and the following 1991 legislative session provided singular and significant reaction. Filed to amend or rescind the law were S.F. 2, S.F. 32, S.F. 60, S.F. 85, S.F. 100, S.F. 148, and S.F. 160, Dig. of S.J., 51st Leg., Gen.Sess. (Wyo.1991). The House bill which generically touched the same issue was an age of majority bill, H.B. 118, Dig. of H.J., 51st Leg., Gen.Sess. (Wyo.1991).

Principal legislative direction was addressed by S.F. 160 sponsored by state Senator Tom Kinnison of Sheridan County, Wyoming. The purpose of the bill was to delete alcohol from coverage within the legislation and leave only controlled substances subject to the vehicle license suspension provisions. An amendment was added to the bill to remove the effects on automobile insurance availability and cost. The bill passed in the Senate with a vote of twenty-three to seven and passed in the House with a vote of forty-four to twenty. The Governor vetoed the bill and an override succeeded in the Senate by a vote of twenty-one to nine but failed in the House with a vote of thirty-six to twenty-eight.

With veto override failure of S.F. 160, S.F. 2 was pulled out from pending joint conference status and restructured by Joint Conference Committee No. 2 to serve two purposes. First, to affect its initial purpose to increase the...