Town of Upton v. Whisler, 90-278

• Decision Date: 10 January 1992
• Docket Number: No. 90-278,90-278
• Citation: 824 P.2d 545
• Parties: TOWN OF UPTON, Wyoming; Robert Oliver, in his official capacity as Mayor of the Town of Upton; Tom Barritt, Lucy McKenzie, Jennifer Silbaugh and Joseph Haynes, in their official capacities as members of the Town Council of the Town of Upton, Wyoming, Appellants (Defendants), v. Leonard WHISLER, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 545

824 P.2d 545

TOWN OF UPTON, Wyoming; Robert Oliver, in his official capacity as Mayor of the Town of Upton; Tom Barritt, Lucy McKenzie, Jennifer Silbaugh and Joseph Haynes, in their official capacities as members of the Town Council of the Town of Upton, Wyoming, Appellants (Defendants), v. Leonard WHISLER, Appellee (Plaintiff).

No. 90-278.

Supreme Court of Wyoming.

Jan. 10, 1992.

Donald B. Hansen, Hansen & Peck, Newcastle, for appellants.

Kennard F. Nelson, Kirkwood & Nelson, Laramie, for appellee.

Before URBIGKIT, C.J., THOMAS, CARDINE and GOLDEN, JJ., and HANSCUM, District Judge.

THOMAS, Justice.

There are two primary issues to be resolved in this case involving the discharge of Leonard Whisler (Whisler) from the appointive office of municipal judge by the Town of Upton (Upton). The first question is whether Whisler had the requisite property interest in the office of municipal judge so that he enjoyed a constitutional right to be afforded due process of law prior to discharge from that office. Specifically, the due process right would relate to the opportunity for a pre-termination hearing that was not conducted in this case. The second question to be resolved, assuming that there was a denial of a constitutional right enjoyed by Whisler, is whether he can maintain, pursuant to 42 U.S.C. § 1983, an action to recover damages for injuries that he suffered, including emotional distress. The district court ruled, as a matter of law, that Whisler was possessed of the requisite property right in the office of municipal judge so as to entitle him to due process of law. In a trial to a jury, the verdict disclosed the jury's finding that Upton had good cause to discharge Whisler, but it did find damages for emotional distress in favor of Whisler because of the denial of his right to due process. We agree with the ruling of the district court with respect to the possession of property right as a matter of law, and we affirm the judgment in Whisler's favor based upon the verdict of the jury. In response to the request by Whisler, we also rule that Whisler is entitled to attorney fees and costs in connection with this appeal.

Upton presents these issues in its Brief of Appellant:

"1. Did appellee [Whisler] have a property right in his position as municipal judge of the Town of Upton, Wyoming?

2. Did appellee prove that he suffered emotional distress as a direct result of the failure of appellants to provide notice and opportunity for a hearing?"

Whisler articulates the issues in this way, including his claim for attorney fees and costs with respect to the appeal:

"A. Leonard Whisler possessed a property right in his employment by virtue of W.S. § 5-6-104.

"B. There is sufficient evidence to support the jury's award of emotional damages.

"C. Attorney's fees and the costs of this appeal should be awarded to appellee."

By a Reply Brief, Upton contends that Whisler is not entitled to an award of attorney fees pursuant to 42 U.S.C. § 1988 for defending the appeal. Upton's position is that any award of attorney fees has to be governed by Rule 10.05., W.R.A.P.

The record demonstrates that Whisler began working for Upton on June 1, 1959, as its sole police officer, and he eventually was promoted to the office of chief of police. Early in 1984, Whisler retired as the chief of police, and he then was appointed the municipal judge effective April 1, 1984. He was reappointed to the office of municipal judge early in January of 1985 and, again, early in January of 1986. In late June of 1986, Whisler was discharged from the office of municipal judge for Upton.

Whisler's discharge, in part, was prompted by a criminal charge that was lodged against him on June 26, 1986 for official misconduct in violation of § 6-5-107, W.S.1977 (June 1983 Repl.). ¹ The essence of this charge against Whisler is that he had accepted a bribe of $350 to dismiss a charge of driving while under the influence of intoxicating liquor. Whisler did not deny that he had received the $350, but his position was that he received it as a bond on a charge of exhibition driving. In any event, the $350 was not accounted for. At his preliminary hearing, the criminal charge against Whisler was dismissed for the reason that there was not sufficient evidence that a crime had been committed or that Whisler had committed it. In its order, the court stated that the money, as likely as not, was lost in the "quagmire of ineptness" in the record-keeping policies of the Upton Police Department and the Upton Municipal Court.

On June 7, 1988, Whisler filed a complaint in which he claimed that he had been improperly discharged from the office of municipal judge. The complaint sounded in tort for deprivation of constitutional rights protected by 42 U.S.C. § 1983. In the complaint, Whisler alleged that Upton, its elected mayor, and the members of its town council deprived him of a liberty interest in his good reputation, as well as a property interest in the office of municipal judge. Whisler asserted that, in accomplishing the discharge, the defendants denied him due process of law because they capriciously, and without a hearing, discharged him from that office. He further claimed that the discharge was a breach of his contract of employment; a breach of a covenant of good faith and fair dealing; and a violation of public policy. He sought damages as a remedy and also sought to recover his costs and attorney fees pursuant to 42 U.S.C. § 1988. Upton filed a counterclaim, pursuant to which it attempted to recover $430 from Whisler representing money that he had received during the time he served as chief of police, but for which he had not accounted to Upton. Cross-motions for summary judgment were filed, and the district court ruled that Whisler was entitled to summary judgment on his claim of deprivation of a property right without due process of law and that Upton was entitled to summary judgment on all other claims made by Whisler. The scheduled trial in the district court then was to address the remaining issue of Whisler's damages.

The parties agreed that Whisler had lost $2,205 in salary, if he was entitled to recover, because he was removed without a hearing, and that amount was entered upon the verdict by the trial judge. The jury then determined that Upton had good cause to remove Whisler as municipal judge and, therefore, he was not entitled to any damages for his removal. The jury did decide, however, that Whisler had suffered emotional distress as a result of Upton's failure to furnish him with notice and a hearing before removing him from office, and that the resulting damages to Whisler amounted to $17,640. This appeal is taken from the summary judgment granted Whisler by the district court and the judgment entered upon the jury's verdict for damages.

The first issue concerns the correctness of the decision of the district court that Whisler was deprived of a property right without due process of law. The parties present two statutes which they claim, respectively, are dispositive of this case. Whisler relies upon Section 5-6-104, W.S.1977 (1991 Cum.Supp.), and argues that this statute establishes his property interest in the office of municipal judge. That statute reads as follows:

" § 5-6-104. Term of office; compensation.

"The terms of municipal judges shall be the same as the terms of other appointed officers of the city or town, unless earlier removed for good cause as provided by law. Compensation shall be prescribed by ordinance of the city or town."

Upton, for its position, relies upon Section 15-2-102, W.S.1977 (1991 Cum.Supp.), which it argues impliedly repealed Section 5-6-104, W.S.1977. Section 15-2-102 provides:

" § 15-2-102. Officers; election, appointment and removal; conditions for appointive office or position.

"(a) The officers of a town are a mayor and four (4) councilmen, all of whom shall be elected. The clerk, treasurer, marshal, attorney, municipal judge and department heads as specified by ordinance shall be appointed by the mayor with the consent of the governing body and may be removed by the mayor. All other appointments, except the appointment of members of a board or commission, and removals shall be made by the mayor without consent of the governing body, unless consent is required by separate statute. The governing body shall determine the method of appointing members of a board or commission, unless the method of appointing such members is specified by separate statute.

"(b) The governing body, by ordinance or resolution, may specify conditions for any office or position to which a person is appointed under this section including:

"(i) Level or range of salary;

"(ii) A description of the duties and responsibilities of the office or position;

"(iii) Term of appointment;

"(iv) Requirements for:

"(A) Promotion;

"(B) Suspension; and

"(C) Hearing of appeals from decisions of the mayor to remove or discharge an appointee other than members of a board or commission, after which the governing body may affirm, modify or reverse the mayor's decision; and

"(v) Other matters which are part of the personnel policies of the town.

Although the jury was instructed by the district court that the court already had determined that Whisler was entitled to notice of the cause asserted for discharge and an opportunity to rebut the claimed cause prior to dismissal, a pre-termination hearing, the jury also was instructed on the provisions of Section 5-6-104. That instruction related to the question of whether there was, in fact, cause for discharge. The jury found as a fact that cause for discharge was established and, consequently, with respect to the issues presented in this appeal, the only factual determination the jury was called to make was whether Whisler suffered damages in the form of emotional distress because of the failure of Upton to afford him a pre-termination hearing.

It is clear that, in reaching its...