CHEYENNE — Wyoming Supreme Court Justice Keith Kautz lit a fire last March with his jarring dissent in an opinion that came to be known as the hemp case or — in some quarters— an utter mess.
The ruling was 3-2 which was unusual in a court that consistently issues unanimous decisions.
Kautz, since retired who was joined in his dissent by Justice Kari Gray, warned that if the majority opinion in the case was accepted, law enforcement officers would be more liable to being sued for negligence in their investigations.
That dissent was bound to provoke interest in the Legislative Service Office where the lawyers watch these decisions. And so it was.
The Legislature’s Joint Judiciary Committee will deal with a draft bill to modify the supreme court majority opinion in November at its next meeting.
The case involved a damage claim filed by Deborah Palm-Egle, owner of a hemp farm near Albin.
She was known to many legislators from her support of hemp growers during a previous legislative session.
In August 2019, an officer of the Wyoming Division of Criminal Investigation (DCI), John Briggs, got a tip about a suspected marijuana grower near Albin.
Briggs and perhaps another officer went to investigate but no one was at home at the property which also had a barn and greenhouse.
Spotting a green leafy substance hanging outside the broken window of the barn, Briggs took photos of the plant and submitted them to a lab for analysis.
During Briggs’ visit an unidentified person at the barn also gave officers two certificate of analysis for samples showing a Delta-9 THC level of zero percent. according to the majority court opinion.
In a subsequent affidavit submitted to show probable cause for a search warrant. Briggs identified the nine test results showing a total Delta-9 THC level of slightly more than 0.3 percent – the legal limit – but failed to mention the two zero test cases.
A judge approved the search warrant so Briggs returned to the farm to seize about 722 pounds of material.
The prosecutor then filed felony charges against Deborah Palm-Egle for raising marijuana plants.
If you lived in Cheyenne and Laramie County and listened to the chattering on the streets when felony charges were filed —particularly among the young crowd—you knew the Palm-Egle case could be a prosecution disaster that would be thrown out of court.
Sure enough —a circuit judge ruled there was no probable cause and no case.
Deborah Palm-Egle then sued Briggs for damages on grounds he was negligent in his investigation and did not show the duty of care required by law.
The lawsuit was filed in federal court which then tossed two questions of Wyoming law to the state supreme court.
During a recent meeting of the judiciary committee, a majority of members voted to move ahead with a draft bill to modify the supreme court majority ruling.
The concern was that the court decision made Wyoming the only state to rule in favor of the right to sue police for a specific claim of negligence — involving a lack of showing duty of care.
Kautz’s dissent pointed out that the majority opinion provided no analysis of whether such duty of care is owed to the suspect in a case.
“The majority opinion effectively recognizes a new tort (law) in Wyoming permitting a criminal defendant to sue an investigating officer for simple negligence because a prosecutor filed criminal charges which were later dismissed,” Kautz wrote.
Judiciary committee members had various opinions about a draft bill, according to a video of the meeting.
Rep. Ember Oakley, R-Riverton, a prosecutor, said she believes the supreme court majority wanted to punish what they thought were bad actions.
“But I think bad law followed.”
The result, she said “is extremely dangerous for law enforcement.”
But other legislators either supported the majority opinion outright or the bill and were uncomfortable changing the law based on a case that was riddled with bad conduct, bad laws, lies and a censure.
Rep. Karlee Provenza, D-Laramie, questioned why the Legislature needs to write a law that will have great impact based on the behavior of people involved in this one failed case.
More to come in November.
Contact Joan Barron at 307-632-2534 or jmbarron@bresnan.net
