Nickelson v. People

Decision Date21 February 1980
Docket NumberNo. 5179,5179
Citation607 P.2d 904
PartiesDarrell J. NICKELSON and R. A. "Dick" Mader, Appellants (Defendants), v. PEOPLE of the State of Wyoming, Appellees (Plaintiffs).
CourtWyoming Supreme Court

Michael A. Maycock, Gillette, and Fred R. Esser, P.A., Phoenix, Ariz., argued, for appellants.

John D. Troughton, Atty. Gen., and Marta Adams, Asst. Atty. Gen., argued, for appellees.

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

RAPER, Chief Justice.

The appellants, Darrell J. Nickelson and R. A. "Dick" Mader, appeal from a judgment of the district court entered in an action to recover a penalty for violation of the Environmental Quality Act after a jury's verdict determined that the appellants: (1) did construct or install a public water supply system at Nickelson Little Farms, (2) did modify a public water supply system at Nickelson Little Farms, and (3) were required by Wyoming law to secure a permit to construct, install, or modify a public water supply system at Nickelson Little Farms. The judgment recited the verdict 1 and imposed a penalty of $10,000.00 on the defendants and entered judgment therefor.

We will affirm.

The appellants were partners in a business venture to subdivide land near Gillette, Wyoming. The subdivision was known as Nickelson Little Farms. At first, only two of the 93 five-acre plots in the subdivision sold; and appellants determined that the cause was that the lots were not affordable to most prospective purchasers because the combined cost of a down payment on the land and drilling of a well was prohibitively high. To encourage sales, they accordingly decided to undertake a project to make water available to the acreages. The appellant Mader, acting for himself and his partner Nickelson, formed a corporation called Nickelson Little Farms Water Company. It was intended that water would be made available to each of the lots through that company. No stock in the company issued to Mader or Nickelson, and according to appellant Mader's own testimony, it would issue to buyers of lots as they made their purchases so that in the end the residents of Nickelson Little Farms would own the stock in the water company.

After formation of the water company, appellant Mader had a well drilled, a 35,000 gallon storage tank installed, and a loop line was put in the ground which the owner of each acreage was entitled to hook into if desired. 2 Sales of the acreage improved and most, if not all, of the lots sold.

A Department of Environmental Quality (DEQ) field engineer took note of the subdivision and looked into what was, in his estimation, a public water supply system for which no permit 3 had been issued by DEQ. DEQ officials made contact with appellants and pointed out the problem. Further, DEQ demanded that appellants obtain a permit and provide DEQ with a set of plans for the water supply system as installed; appellants did neither. 4

In the meantime, residents of the subdivision complained to appellants about the water supply's inadequacy in several regards. Appellant Mader testified that at the request of the stockholders of the water company certain alterations were made in the water supply system including increasing the storage capacity to 80,000 gallons, adding a booster pump to improve water pressure to certain areas of the subdivision, and incorporating a chlorinator.

The appellants raise five issues, which we shall treat in logical sequence rather than as presented by the parties:

(1) Sections 35-11-104, et seq., W.S.1977, and the creation of the Department of Environmental Quality are unconstitutional and an unlawful derogation of the powers created by Art. VIII, § 2, Wyoming Constitution. 5

(2) The proceedings were criminal in nature, not civil, and the requirement that the appellants testify was in violation of their right not to be required to testify against themselves in criminal proceedings in violation of the Fifth Amendment, U.S. Constitution, 6 and Art. I, § 11, Wyoming Constitution. 7

(3) Sections 35-11-101, et seq., W.S.1977, are unconstitutional because they are in violation of Art. I, §§ 1, 2, 3, 6, and 7, Wyoming Constitution 8 and the Fourteenth Amendment of the U.S. Constitution. 9

(4) The district court erred in failing to direct a verdict for appellants at the close of all the evidence.

(5) The trial court committed reversible error in failing to submit to the jury a special form of verdict which would have allowed the jury to find that Nickelson Little Farms Company, a Wyoming corporation, constructed, installed, modified or operated a public water supply system.

Appellants assert that the statutes in question here are unconstitutional and illegally infringe on the powers vested in the State Engineer by Art. VIII, § 2, Wyoming Constitution. This issue was not addressed to the trial court. Where unconstitutionality of a statute is not raised in the trial court, we, as a reviewing court, will not hear the matter. Knudson v. Hilzer, Wyo.1976, 551 P.2d 680, 686 (and authorities cited therein). 10 This is nothing more than a generic refinement of the general rule that we will not consider matters raised for the first time on appeal unless they go to jurisdiction or are otherwise of such a fundamental nature that the court must take cognizance of them. Scherling v. Kilgore, infra, 599 P.2d at 1358. We are persuaded that the question is neither related to the jurisdiction of this court nor so fundamental that we must take cognizance of it, and we will not consider the question further.

Appellants assert that the proceedings in this case were criminal in nature and thus they were compelled to testify against themselves in a criminal case in violation of their federal and state constitutional rights. Appellants assert that the penalty provision of the statutes 11 in question is criminal and not civil and therefore they could exercise their rights to remain silent in face of the accusations. To posit the issue plainly, it is: If we should determine that the proceedings were criminal, then the evidence relied upon by the State was protected, inadmissible, and requires reversal of the judgment in favor of the State.

This is an exceedingly problematic question. The authorities are deeply divided and an analytical framework is difficult to construct. In this instance, the legislature has determined that the penalty for violating the statute may be recovered in a civil action. The legislature has not assigned the term "criminal" to the violation. However, we hold that mere avoidance of the term "criminal" will not determine the criminal or civil nature of a statutorily defined offense and thus preclude the application of constitutional guarantees. "Constitutional guarantees have more substance than that." Brown v. Multnomah County District Court, 1977, 280 Or. 95, 570 P.2d 52, 57.

We adopt a test which uses five criteria to determine whether a penalty imposed by the State is "criminal" or "civil." The test is one fashioned by the Oregon Supreme Court in Brown v. Multnomah County District Court, supra, 570 P.2d at 57-60. In adopting this test and applying it to the instant case, we have examined and now assimilate into our decision the same authorities 12 relied upon by that court. The five criteria are:

(1) Type of offense. Is the offense one which is traditionally or by its very nature criminal? If not, it may be considered to be civil.

(2) Penalty. What is the penalty and how severe is it? This has been isolated as the most significant factor, but it is by no means conclusive. Imprisonment may not be used as punishment for a civil offense. The imposition of a fine or penalty may be entirely consistent with an offense being civil in nature. On the other hand, a fine or penalty may become so severe in the context of the circumstances in which it is imposed that the offense becomes criminal in nature and the constitutional protections associated with criminal prosecutions are necessarily called into play. An arbitrary dollar figure cannot be rigidly set as the touchstone. Rather, the amount of the fine must be weighed in view of all the circumstances relevant to the offense in question.

(3) Collateral Consequences. What other consequences are in the offing for the defendant in addition to the fine? Are there such collateral consequences and are they regulatory in nature or do they impose additional punishment?

(4) Punitive Significance. This is perhaps the most difficult factor to weigh and the element of subjectivity must be scrupulously avoided. We must inquire whether the offense is one primarily motivated by punitive intent. Is the statute plainly one that inflicts "punishment"? Does the judgment have stigmatizing or condemnatory significance?

(5) Arrest and Detention. Are the pretrial practices familiar to the criminal law utilized? If they are, that may serve to tip the balance in favor of a determination that the offense is criminal.

When we apply these factors to the offense in question, we reach the conclusion that the statute provides for a civil penalty and the appellants were not entitled to rely on their right to remain silent on the basis that the proceedings themselves were criminal in nature. 13

(1) The offense is civil in nature. Environmental protection statutes are relatively new of development but certainly their origin is found in nuisance laws and common-law property rights for which the remedies were entirely civil in nature. In the face of an ever-deteriorating environment, the people through their governments have undertaken to limit further deterioration and actually to upgrade the environment by employing the powers of the State to stop dirtying of air and water, et cetera. Here we are primarily concerned with obtaining a permit to construct, install, operate, or modify a public water supply system. The purpose of the statute is self-evident. A permit must be obtained. Before the State...

To continue reading

Request your trial
33 cases
  • Jahnke v. State
    • United States
    • Wyoming Supreme Court
    • December 12, 1984
    ...on appeal. Hopkinson v. State, Wyo., 664 P.2d 43 (1983), cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983); Nickelson v. People, Wyo., 607 P.2d 904 (1980); and Nisonger v. State, Wyo., 581 P.2d 1094 (1978). Furthermore, unless plain error is present, questions concerning the c......
  • Martinez v. City of Cheyenne
    • United States
    • Wyoming Supreme Court
    • May 4, 1990
    ...(Wyo.1989); Ricci v. New Hampshire Insurance Company, 721 P.2d 1081 (Wyo.1986); Dennis v. Dennis, 675 P.2d 265 (Wyo.1984); Nickelson v. People, 607 P.2d 904 (Wyo.1980); Scherling v. Kilgore, 599 P.2d 1352 (Wyo.1979). We apply our well-established rule concerning those issues raised for the ......
  • United Pacific Ins. Co. v. Wyoming Excise Tax Div., Dept. of Revenue and Taxation
    • United States
    • Wyoming Supreme Court
    • January 24, 1986
    ...(1984); Hopkinson v. State, Wyo., 664 P.2d 43, 50, cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983); Nickelson v. People, Wyo., 607 P.2d 904, 907 (1980). The rule that this court will not address the constitutionality of a statute is a refinement of the rule in Scherling v. K......
  • Hopkinson v. State
    • United States
    • Wyoming Supreme Court
    • May 27, 1983
    ...We will not ordinarily consider the unconstitutionality of a statute if the question is not raised in the trial court, Nickelson v. People, Wyo., 607 P.2d 904 (1980); Knudson v. Hilzer, Wyo., 551 P.2d 680 (1976), or any constitutional question for that matter, Nisonger v. State, Wyo., 581 P......
  • Request a trial to view additional results
1 books & journal articles
  • Decriminalization of Municipal Offenses in Colorado
    • United States
    • Colorado Bar Association Colorado Lawyer No. 19-7, July 1990
    • Invalid date
    ...(1980). 4. Ward, supra, note 3. 5. See, e.g., State v. Clayton, 584 P.2d 1111 (Alaska 1978). 6. Brown, supra, note 2; Nickelson v. People, 607 P.2d 904 (Wyo. 1980). 7. Greenwood Village, supra, note 3; Brown, supra, note 2. 8. Brown, supra, note 2. 9. Greenwood Village, supra, note 3; City ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT