Pritchard v. State, Division of Vocational Rehabilitation, Dept. of Health and Social Services, No. 4430

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtROSE; RAPER
Citation540 P.2d 523
PartiesDick G. PRITCHARD, Appellant (Appellee-contestee below), v. STATE of Wyoming, DIVISION OF VOCATIONAL REHABILITATION, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellee (Appellant-contestant below).
Decision Date23 September 1975
Docket NumberNo. 4430

Page 523

540 P.2d 523
Dick G. PRITCHARD, Appellant (Appellee-contestee below),
v.
STATE of Wyoming, DIVISION OF VOCATIONAL REHABILITATION, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellee (Appellant-contestant below).
No. 4430.
Supreme Court of Wyoming.
Sept. 23, 1975.

Edward L. Grant, of Osborn & Grant, Cheyenne, for appellant.

Robert N. Chaffin, Special Asst. Atty. Gen., Cheyenne, for appellee.

Before McCLINTOCK, THOMAS and ROSE, JJ.

Page 524

ROSE, Justice.

Dick G. Pritchard, appellant, was employed March 1, 1971, as Rehabilitation Counselor on a probationary basis, by the appellee-Division of Vocational Rehabilitation, Wyoming State Department of Health and Social Services (hereafter designated as DVR), as the Casper, Wyoming office.

His employment was terminated without a hearing on June 22, 1972, by the Assistant Administrator of DVR, in person and followed by a letter of termination dated June 26, 1972. Pritchard was paid his salary through August 8, 1972.

Mr. Pritchard filed a petition for review of personnel action on July 11, 1972, with the Career Service Council (hereinafter sometimes designated as CSC) contesting the grounds for termination of employment. His contentions were that, under the rules applicable to his case, he had a right to a hearing on the question of cause because he was not on probation and, additionally, there was no factual basis for his discharge in any event. The DVR contended that he was on probation at the time of his dismissal and consequently could be summarily discharged without a showing of cause but that there was, nevertheless, cause for his dismissal. The CSC heard the case on the petition of Pritchard and testimony of witnesses, after the fact, and found for various reasons that Pritchard should not have been dismissed. On the 14th day of February, 1973, he was ordered reinstated in his former position at his former grade.

DVR filed an appeal to the District Court in and for Laramie County, Wyoming, whereupon that court, after examinaing the record made before the CSC and hearing the argument of attorneys, remanded the case back to the Council directing that it furnish legal authority to support its holding and forward an abstract of the facts upon which it made its findings and reached its conclusion.

The CSC thereupon issued a supplemental order which reached the same conclusion as its former one but, in which, it made some additional findings, whereupon DVR filed another petition for review with the District Court of Laramie County.

After receiving briefs, hearing arguments of counsel and reviewing the record in the case, the district court entered its order on April 8, 1974, reversing the order of the CSC dated February 14, 1973, the effect of which was to cause Pritchard to lose his job. It is from this last mentioned district court order that Mr. Pritchard appeals to this court.

Jurisdiction of the Lower Court

At no stage in the proceedings did either party or the court raise the question of whether or not, under the statutes of this state or by any other authority, the DVR had a right to appeal the order of the CSC to the district court. 1

Ordinarily this court refrains from inquiring into questions not raised by the parties or the trial court at that stage of the proceedings, but since the right of appeal is statutory 2 and jurisdictional we have a duty 3 to inquire. 4

Page 525

Parenthetically, we observe that Justice Gray said in Wyoming State Treasurer ex rel. Workmen's Compensation Department v. Niezwaag, Wyo., 444 P.2d 327, 328:

'At the outset we are confronted with a question of our jurisdiction. Even though the parties have not raised the question and have submitted the case on the merits, we are duty bound to inquire into the matter and dismiss the appeal if the record discloses a want of such jurisdiction. Big Horn Coal Co. v. Sheridan-Wyoming Coal Co., 67 Wyo. 300, 224 P.2d 172, 177.'

No Authority for Agency Appeal

Having inquired, we find and hold that there are no statutory provisions entitling the DVR, an agency of the State Government, to appeal an adverse administrative decision to the district courts of Wyoming. In fact, as we will see, the right of appeal from an adverse ruling is specifically denied to a state 'agency' by applicable Wyoming statutes.

We further, therefore, find and hold that the appeal to the district court was taken without authority and is void-all orders made therein are without authority of law and no order made and entered there will provide the necessary support for appeal to this court. Because the question pertains to the lower court's lack of jurisdiction, our decision overruling and setting aside the order of the District Court of Laramie County is retroactive to the last effective date of the February 14, 1973 order of CSC. The order of the CSC, dated February 14, 1973, setting aside the dismissal of Pritchard is therefore reinstated and given full force and effect. In other words, the matter is remanded to the posture that it enjoyed before the District Court made its purported order overruling the order of CSC of February 14, 1973.

The Legal Question

It is said in Cooper on 'State Administrative Law,' Volume 1, p. 131, § 5, 'Persons (A) New Definition in Revised Model State Act,':

'While the earlier version of the Model State Act contained no definition of the term 'person (nor, indeed, do most of the existing state administrative procedure laws), the Revised Model State Act, borrowing from the Federal Administrative Procedure Act incorporates a definition (of 'person') which is principally noteworthy in its exclusion of agencies from the term 'person.' (Italics and bracketed matter ours)

'The Revised Model State Act provides (Section 1(6)): "Person' means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency.' This means, in net result, that while an agency is normally a party to the proceeding it is conducting, and while one agency may become a party to proceedings being conducted by another agency, still agencies are not as such entitled to the privileges which the Revised Model State Act creates for persons. This may become relevant in a number of occasions. For example, Section 15 of the Revised Model State Act confers standing to claim judicial review on persons who are aggrieved by a final decision in a contested case.' (Italics ours) 5

Page 526

The Wyoming Administrative Procedure Act 6 and Rule 72.1 of the Wyoming Rules of Civil Procedure are applicable to this litigation.

The definition of 'agency' in the Wyoming Administrative Procedure Act, § 9-276.19(b)(1), W.S.1957, 1975 Cum.Supp., is as follows:

'(1) 'Agency' means any authority, bureau, board, commission, department, division, officer or employee of the state, a county, a municipality or other political subdivision of the state, except the state legislature and the judiciary.'

The legislature, in 1969, created within the state government the Department of Health and Social Services, of which the Division of Vocational Rehabilitation is one division. 7

Under the above definition and these statutes, DVR is an 'agency.'

When Pritchard was fired he filed a 'petition for review' with the Career Service Council of the State of Wyoming. The Career Service Council decided the matter adversely to DVR, and DVR then filed in the District Court of the First Judicial District a 'petition for review' under Rule 72.1, W.R.C.P., entitled 'Judicial review of administrative action.' Sub-section (c) thereof provides:

'(c) Petition for Review; Other Proceedings for Review. The proceedings for judicial review under this rule shall be instituted by filing a petition for review in the district court having venue. . . . All appeals from administrative agencies and all proceedings for trial de novo reviewing administrative action shall be governed by this rule.' (Emphasis ours)

Sub-section (a) of the rule (72.1, W.R.C.P.) is entitled 'Applicability' and provides:

'(a) Applicability. To the extent that judicial review of administrative action by a district court is available, any person who is aggrieved or adversely affected in fact by a final decision of an agency in a contested case, or who is aggrieved or adversely affected in fact by any other agency action or inaction, or who is adversely affected in fact by a rule adopted by an agency, may obtain such review as provided in this rule.' (Emphasis ours)

We therefore conclude that Rule 72.1, W.R.C.P., does govern, and the only parties who may take advantage of a 'judicial review of administrative action' is a 'person who is aggrieved or adversely affected . . . by a final decision of an agency,' as provided by sub-section (a), supra.

Sub-section (b) of Rule 72.1 is the 'Definitions' section, and it says:

'As used in this rule, the words 'agency,' 'contested case,' 'party,' 'person' and 'rule' (when referring to an agency or administrative rule) shall have the meanings set forth in section 1(b) of the Wyoming Administrative Procedure Act, . . ..' (Emphasis ours)

Therefore, in order for us to determine who a 'person' is to whom 'a judicial review of administrative action' is available under Rule 72.1(a), it becomes imperative to look to § 9-276.19(b) of the Administrative

Page 527

Procedure Act, which is entitled 'Definitions.' Sub-section (6) thereof is as follows:

'(6) 'Person' means any individual, partnership, corporation, association, municipality, governmental subdivision or...

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33 practice notes
  • Harrington's Estate, Matter of, No. 5606
    • United States
    • United States State Supreme Court of Wyoming
    • 22 July 1982
    ...Wyo., 586 P.2d 550 (1978); Pritchard v. State Division of Vocational Rehabilitation, Department of Health and Social Services, Wyo., 540 P.2d 523 (1975); Wyoming State Treasurer ex rel. Workmen's Compensation Department v. Niezwaag, Wyo., 444 P.2d 327 (1968); and Gardner v. Walker, Wyo., 37......
  • Mekss v. Wyoming Girls' School, State of Wyo., No. 89-235
    • United States
    • United States State Supreme Court of Wyoming
    • 12 June 1991
    ...by statute and by our holding in Pritchard v. State, Division of Vocational Rehabilitation, Department of Health and Social Services, 540 P.2d 523 (Wyo.1975). In Pritchard, we analyzed the statutory terms "person" and "agency" in light of the definitions in the Wyoming Administrative Proced......
  • Schuler v. State, No. 87-135
    • United States
    • United States State Supreme Court of Wyoming
    • 5 April 1989
    ...Rights of PP, 648 P.2d 512 (Wyo.1982), and Pritchard v. State, Division of Vocational Rehabilitation, Department of Social Services, 540 P.2d 523 (Wyo.1975), for the proposition that this court ordinarily refrains from inquiring into questions not raised by the parties in the trial We ackno......
  • State Through Dept. of Public Safety and Corrections, Office of State Police, Riverboat Gaming Div. v. Louisiana Riverboat Gaming Com'n and Horseshoe Entertainment
    • United States
    • Supreme Court of Louisiana
    • 22 May 1995
    ...facing the issue of whether one agency could appeal an adverse decision by another agency. In Pritchard v. State, Div. of Voc. Rehab., 540 P.2d 523 (Wy.1975), Pritchard, an employee of the Wyoming Department of Health and Social Services (the department) was terminated. Pritchard sought rev......
  • Request a trial to view additional results
33 cases
  • Harrington's Estate, Matter of, No. 5606
    • United States
    • United States State Supreme Court of Wyoming
    • 22 July 1982
    ...Wyo., 586 P.2d 550 (1978); Pritchard v. State Division of Vocational Rehabilitation, Department of Health and Social Services, Wyo., 540 P.2d 523 (1975); Wyoming State Treasurer ex rel. Workmen's Compensation Department v. Niezwaag, Wyo., 444 P.2d 327 (1968); and Gardner v. Walker, Wyo., 37......
  • Mekss v. Wyoming Girls' School, State of Wyo., No. 89-235
    • United States
    • United States State Supreme Court of Wyoming
    • 12 June 1991
    ...by statute and by our holding in Pritchard v. State, Division of Vocational Rehabilitation, Department of Health and Social Services, 540 P.2d 523 (Wyo.1975). In Pritchard, we analyzed the statutory terms "person" and "agency" in light of the definitions in the Wyoming Administrative Proced......
  • Schuler v. State, No. 87-135
    • United States
    • United States State Supreme Court of Wyoming
    • 5 April 1989
    ...Rights of PP, 648 P.2d 512 (Wyo.1982), and Pritchard v. State, Division of Vocational Rehabilitation, Department of Social Services, 540 P.2d 523 (Wyo.1975), for the proposition that this court ordinarily refrains from inquiring into questions not raised by the parties in the trial We ackno......
  • State Through Dept. of Public Safety and Corrections, Office of State Police, Riverboat Gaming Div. v. Louisiana Riverboat Gaming Com'n and Horseshoe Entertainment
    • United States
    • Supreme Court of Louisiana
    • 22 May 1995
    ...facing the issue of whether one agency could appeal an adverse decision by another agency. In Pritchard v. State, Div. of Voc. Rehab., 540 P.2d 523 (Wy.1975), Pritchard, an employee of the Wyoming Department of Health and Social Services (the department) was terminated. Pritchard sought rev......
  • Request a trial to view additional results

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