Scarlett v. Town Council, Town of Jackson, Teton County

• Decision Date: 31 December 1969
• Docket Number: No. 3773,3773
• Parties: J. G. SCARLETT et al., Appellants (Petitioners below), v. TOWN COUNCIL, TOWN OF JACKSON, TETON COUNTY, Wyoming; Harold J. Livingston, Mayor; Dean Bark, Felix Buchenroth, Michael Hawkins, and A. E. McCain, Councilmen, Appellees (Respondents below).
• Court: Wyoming Supreme Court

Page 26

463 P.2d 26

J. G. SCARLETT et al., Appellants (Petitioners below), v. TOWN COUNCIL, TOWN OF JACKSON, TETON COUNTY, Wyoming; Harold J. Livingston, Mayor; Dean Bark, Felix Buchenroth, Michael Hawkins, and A. E. McCain, Councilmen, Appellees (Respondents below).

No. 3773.

Supreme Court of Wyoming.

Dec. 31, 1969.

Harry L. Harris, Evanston, for appellants.

Floyd R. King, Jackson, for appellees.

Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.

Mr. Justice PARKER delivered the opinion of the court.

The Town Council of Jackson, Wyoming, purporting to act under Title 15.1, Ch. 1, Art. 5, W.S.1957, C.1965, relating to annexation, on April 17, 1968, passed a resolution to annex certain lands adjacent to the Town. In accordance with that resolution, notice was given for a public hearing to be held on May 24 at the Cache Room, Jackson State Bank. The meeting was presided over by the mayor who delegated its conduct to the town attorney. J. G. Scarlett and others opposing the annexation appeared with their counsel and initially moved that the proceedings be conducted in accordance with the Wyoming Administrative Procedure Act, §§ 9-276.19 to 9-276.33, W.S.1957 (1969 Cumulative Supp.), which motion received no attention. The meeting was addressed by the councilmen as well as other interested individuals, and petitioners' counsel asked various questions. At the conclusion of the public hearing the mayor announced the council would go into a 'little executive session' before making a decision. Upon returning after adjournment one of the councilmen moved that, 'the Town accept and find that sufficient evidence has been introduced to show that the Town can reasonably furnish the basic services to the area to be annexed, as they are furnished in Town, and * * * that the Town attorney be directed to draft an ordinance annexing the area described * * *.' The motion carried and petitioners' counsel then moved that the entire proceedings be dismissed as being irregular and not in compliance with either the Wyoming Administrative Procedure Act or the statutes relating to annexation, to which there was no response. The council thereafter on July 2, 1968, adopted an ordinance annexing the property in which one section stated:

'That the Town Council at a public hearing has determined that reasonable evidence exists to find that the * * * territory meets the conditions and limitations as follows: * * * (quoting the requirements of § 15.1-55).'

Various protesters appealed the 'acts, findings and decision' of the council to the district court, which after reviewing the matter on the written record without further testimony, affirmed the decision, determining that the July 2 ordinance was valid.

Appellants here contend that (1) in adopting the annexation ordinance the appellees were without or in excess of their powers, (2) the annexation ordinance and all proceedings related thereto were not in conformity with law, (3) adoption of the annexation ordinance was arbitrary, capricious, and characterized by abuse of discretion, and (4) the findings of fact and the judgment were not supported by substantial evidence. The first three of appellants' contentions stem from the tenet that under the Wyoming Administrative Procedure Act the Town was an agency and the annexation a contested case so that all proceedings were required to be in accordance with that Act and Rule 72.1, W.R.C.P.

Required Proceedings

The Town was, of course, an 'agency' by definition, ¹ and obligated to abide by the provisions of the Act and to file the rules applicable to contested cases with the Secretary of State, but in the light of the historical development of the Act, it could scarcely be said that all activities of a municipality are subject thereto. Counsel assumes and states without presenting authority to support the claim that the proceeding for the annexation here was a contested case as the term is defined in § 9-276.19(b) (2), ² and to bolster his position that adherence to the Act was necessary refers to the statement in Glenn v. Board of County Commissioners, Sheridan County, Wyo., 440 P.2d 1, 3, '* * * consequently such proceeding is subject to and must be reviewed in keeping with the applicable provisions of the act.' In so doing, however, he neglects to note that in Glenn the parties had agreed it was a contested case. Here the situation cannot be so easily resolved since the litigants argue the 'contested' nature of the proceedings and support their respective positions only by analogy, counsel conceding they have no authority whether or not municipal-annexation proceedings are contested matters within the definition of the Act. Undoubtedly no definitive pronouncement on the subject is extant for the reason that Wyoming is unique in its inclusion of 'municipality' in the definition of 'agency.' Since the question before us has not been directly presented in this jurisdiction and is one of first impression, ³ to approach it, we must perforce refer to the rationale and historical background of the statutes upon which the Act is based. ⁴ In the comment concerning the Model Act in the Handbook of the National Conference of Commissioners on Uniform State Laws, p. 207 (1961), it is explained:

'Then term 'contested case' is used in the Model Act, instead of the word 'adjudication' as found in the Federal Act, to avoid the possible confusion in terminology that might result from the fact that ratemaking under the Federal Act is classified as 'rule making' with special procedures applicable to it, whereas under the Model Act it is desired to apply the contested case procedures to ratemaking.'

This statement in addition to pointing out one substantial difference in the Federal and the Model Act manifests the thinking of the commissioners who drafted the issuable section, i. e., in general, similar principles were to govern the Federal and the Model Act. 'Requirement of opportunity to be heard' is discussed in 1 Davis, Administrative Law Treatise (1958) beginning at § 7.01, which text at § 7.04, p. 420, alludes to the foundations of the law concerning that requirement in the two Supreme Court opinions of Londoner v. City and County of Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103, and Bi-Metallic Investment Company v. State Board of Equalization of Colorado 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372, and states at p. 426.

'The conclusion seems rather fully supported that a party who has a sufficient interest or right at stake in a determination of governmental action should have an opportunity for a trial type of hearing on issues of adjudicative facts, but that such a hearing often is not necessarily required on issues of legislative facts.'

As later observed by this authority, especially at § 7.06, the distinction between adjudicative facts and legislative facts is not always entirely clear. ⁵ This circumstance has unfortunately been compounded by the phrase 'after an opportunity for hearing,' occurring in the contested-case definition of both the Model and the Wyoming Act, which provides an excuse for a party denied a hearing to insist that the resulting decision of the agency is void. However, such a contention should not be accepted literally or without analysis of the contest in question. It is clear from what has been said that the provisions of our Act although governing contested cases are not applicable to legislative or argumentative-type hearings, and it is reasonable that the legislature in drafting § 9-276.19(b)(2) intended that the words 'after an opportunity for hearing' meant an opportunity for a trial-type hearing. 1 Davis, Administrative Law Treatise, § 1.04 (p. 22, 1965 Pocket Parts), suggests that the Model Act definition be amended accordingly. Although such an amendment would clarify this, we interpret the statute to mean '(trial-type) hearing.'

Appellants' basic argument that the entire proceedings are void since the Town acted in total disregard of the provisions of the Wyoming Administrative Procedure Act turns upon an interpretation of § 9-276.19(b)(2), the definition of 'contested case' and particularly the phrase 'proceeding * * * in which legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for hearing.' Turning first to the words 'legal rights,' we question whether or not such are involved in an annexation proceeding. In Stilz v. City of Indianapolis, 55 Ind. 515, 519, it was said:

'* * * The mere act of annexation * * * does not take away the property from the owner, nor affect his private right. It may bring it into another jurisdiction, and affect the civil relation of the owner towards the public, but, as between individual and individual, his rights will remain equal with others under the same circumstances. * * *'

This principle seems to have been generally adopted. In People ex rel. Averna v. City of Palm Springs, 51 Cal.2d 38, 331 P.2d 4, 9, the court said:

'* * * Plaintiff contends that the annexation will operate to take property without due process of law. There is no merit in this contention. No one has a vested right to be either included or excluded from a local governmental unit * * *, and the fixing of territorial boundaries of a municipal corporation will not ordinarily constitute an invasion of federal constitutional rights. * * *'

In Burton v. Kautenburger, 88 Ariz. 319, 356 P.2d 412, 413, and Burton v. City of Tucson, 88 Ariz. 320, 356 P.2d 413, 417, it was stated that the annexation by the City although foreclosing judicial review in these cases by the board's determinations did not deprive appellant of any constitutionally protected vested rights.

In State ex rel. Miller v. Common School Dist. No. 87, Brown County, 163 Kan. 650, 185 P.2d 677, 680, a similar view was applied to the changing of school district boundaries....