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Judiciary

‘Roe v. Wade’ Court Leak ‘Deplorable,’ Could Backfire, Says Former Wyo Justice

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By Leo Wolfson, Cowboy State Daily

The leak of a U.S. Supreme Court draft decision on abortion will probably have little benefit and may even backfire on those responsible, according to several Wyoming attorneys.

The draft decision leaked last week to Politico seemed to show that a majority of Supreme Court justices support the reversal of the landmark abortion ruling “Roe v. Wade,” which recognized abortion as a constitutionally guaranteed right.

Former Wyoming Supreme Court Justice Bill Hill, who spent 20 years on the court, said the early release of the draft opinion may have the opposite effect of what the person who released the ruling may have intended.

“I think it could very easily backfire on the on those who wanted it released, surreptitiously,” he told Cowboy State Daily.

Lander attorney Christine Lichtenfels said she does not believe the leak benefited pro-choice advocates because they had been expecting the court to eventually overturn the 1973 ruling.

“What’s really going to matter is in June when the decision comes out,” she said.

The leak of the draft ruling, believed to be the first in the U.S. Supreme Court’s history, was harshly criticized by Hill, who spent several years as the Wyoming high court’s chief justice.

“It’s despicable, deplorable and criminal,” he said.

Hill said he sees the leak as a criminal theft of confidential U.S. government property and said the party found responsible will be in “deep trouble.” 

He said during his time on the Wyoming Supreme Court, such drafts were frequently circulated among the justices and their clerks.

“It gives each justice a chance to comment on the final order,” he said. “You’re depending on the good faith of your colleagues and the employees of your colleagues on the court to look out for the court.”

Hill said he had no recollection of any court documents being released preemptively during his 20 years as a justice.

The leak spurred protests over the weekend by demonstrators on either side of the issue, some of whom gathered at the homes of U.S. Supreme Court justices and outside of churches.

The draft opinion, which is expected to become official later this year, showed the majority of justices favor overturning Roe v. Wade. If the ruling remains unchanged prior to its final release, it will return authority over abortions to the states.

U.S. Supreme Court Chief Justice John Roberts, who called the leak “appalling,” has demanded an investigation into the source of the leak.

U.S. Sen. Cynthia Lummis, an attorney who previously served in the state Legislature and as state Treasurer, also criticized the leak.

“Whoever leaked the draft opinion to the media has done the Supreme Court a great disservice,” she said. “They undermined decades of precedent and attempted to fundamentally alter the way our highest Court operates.”

Lichtenfels runs Chelsea’s Fund, an organization that provides money for women leaving the state to obtain abortions.

She said she was more concerned with the content of the draft and the tone and language used by Justice Samuel Alito on behalf of the conservative majority of the court than with its leak.

“He showed an unbelievable disdain he showed for previous Supreme Court decisions and justices,” she said.

A number of theories have been offered for the document’s leak involving both pro-choice and pro-life forces, but Hill said he has no guesses as to the leaker’s motivation.

The release of the draft hasn’t slowed the plans of Wellspring Health Access and its owner Julie Burkhart from planning to open a new abortion clinic in Casper, the state’s second, this summer.

Tim Lasseter, a member of Park County Right to Life, said his organization and Wyoming Right to Life plan to protest outside the facility on its opening day.

Wyoming is one of many states to have adopted a “trigger” law that would ban abortions within five days of an official reversal of Roe v. Wade.

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Wyoming Gun Owners’ Aaron Dorr Hails Federal Court Ruling

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By Jim Angell, Cowboy State Daily

An official with a Second Amendment advocacy group is hailing a judge’s decision in the group’s favor in its lawsuit against the Wyoming secretary of state.

Aaron Dorr, policy advisor for Wyoming Gun Owners, said he was pleased that a federal court ruled as unconstitutional a state law that would have made the group disclose its donors.

“”With help from the Institute for Free Speech we won … securing a victory for the First Amendment and the Second Amendment at the same time,” he told Cowboy State Daily. “On to the primaries!”

The lawsuit stemmed from a radio ad purchased by WyGO in August 2020 that portrayed state Sen. Anthony Bouchard, who was seeking re-election, as a champion of Second Amendment rights and his primary opponent, Erin Johnson, as “pathetic” because she did not mention gun rights on her website.

The Wyoming secretary of state found the ad to be “campaign electioneering” and said as a result, WyGO would need to provide its list of campaign income and expenses in keeping with state law.

The law in question requires organizations that spend more than $500 on “electioneering communication” to report its income and expenses “related to” the communication.

WyGO sued the secretary of state’s office, claiming the law created an unconstitutional hinderance to the right to free speech.

“Wyoming Secretary of State Ed Buchanan thought he could put a muzzle on Wyoming Gun Owners as a favor to his political friends in Cheyenne,” Dorr said. “He never thought we’d drag him into federal court.”

Judge Scott Skavdahl, in his ruling Monday, agreed the debate centered on the right to engage in political speech.

Skavdahl said while the state does have an interest in knowing who is speaking about a candidate before an election, it must narrowly tailor its laws make groups only report donations made to support advertising.

Without such limits, groups such as WyGO would have to separate out donations from people who only want to support activities such as lobbying or the creation of newsletters, Skavdahl said.

“Otherwise, small incidental donors with no intention of contributing to electioneering communications will be reported, which does not support the state’s interest in knowing who is speaking before an election,” he wrote.

While the secretary of state’s office argued WyGO could be required to account for the way different donations are made and used, Skavdahl said that would be too much of a burden for the group.

“If the statute is written in such a way that organizations like WyGO are required to design specific bookkeeping systems to comply with the statute, it is not clearly written or narrowly tailored,” he wrote. “It is on the state of Wyoming to prove they have narrowly tailored the statute to meet their interests and putting the responsibility on WyGO to keep proper records does not meet that burden.”

Skavdahl also found a section of the law requiring the reporting of expenses which “relate to” campaign advertising to be unconstitutionally vague.

“By this broad phrase, nothing prevents the state of Wyoming from requiring disclosure of expenses spent on gas driving to the … radio station,” his ruling said. “A reasonable person could read the statue and have trouble deciphering what ‘relate to’ means.”

Dorr, in a video posting, said if the law had been allowed to stand, groups like Wyoming Gun Owners would not be able to share information on candidates.

“But if we let these bureaucrats muzzle us through these two tyrannical First Amendment attacks via campaign finance laws, we will lose our right to expose these people at election time,” he said. “And if that happens, it will directly begin to impact our gun rights in a very very, very negative way.”

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Man Convicted Of Torturing, Killing 22-Month-Old Daughter Files Federal Appeal

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By Clair McFarland, Cowboy State Daily

A man convicted in 2006 of killing his toddler daughter is asking a federal court to reverse his murder conviction, saying a recent U.S. Supreme Court case supports his claims that he was prosecuted in the wrong jurisdiction.  

Andrew Yellowbear Jr. was sentenced to life in prison without parole in 2006 for abusing and murdering his 22-month-old daughter Marcella Yellowbear. The girl died July 2, 2004 after weeks of torture in a Riverton apartment.  

Because the crime occurred in Riverton, Yellowbear was convicted in state, not federal court. He has filed multiple appeals arguing that the Wind River Indian Reservation abutting the town should include Riverton within its borders, based on the 1868 Treaty between the Shoshone Tribes and the federal government.  

Therefore, Yellowbear has argued, he was convicted in the wrong court and should be freed.  

Courts have rebutted Yellowbear’s prior appeals by deferring to the Surplus Land Act of 1905, a new treaty that diminished the boundaries of the reservation and placed the town of Riverton under state, not tribal and federal, jurisdiction.  

But this time, Yellowbear’s bid for freedom cites McGirt vs. Oklahoma – a 2020 Supreme Court case that raised the standards for reviewing historical agreements in which tribes have given up portions of reservation lands to other entities.    

McGirt re-established the Muscogee Nation in Oklahoma, barring state police and prosecutors from enforcing state laws within its borders and relegating law enforcement instead to tribal and federal authorities, depending on the offense.  

In His Own Hand 

Yellowbear is representing himself in his appeal. A perpetual litigant, he has sued or petitioned for various concessions and appeals more than a dozen times throughout his imprisonment in the Wyoming Department of Corrections.  

Yellowbear wrote in his most recent petition that in 2008 he was given a new sentencing document with just one felony-murder conviction, instead of the original four, several months after his actual sentencing. He asserted that with the altered sentencing terms, he should have been given a new sentencing hearing and a chance to argue for a lesser punishment before a judge.  

Felony murder is a variant of first-degree murder punishable by life in prison with or without parole, or the death penalty. Felony murder is a murder that occurs in the course of another felony, such as child abuse. 

Yellowbear wrote that the court should consider his appeal again because it refers to the newer sentencing terms, rather than the older ones.  

He asked the court to “review anew… jurisdictional claims” in light of the McGirt standards.  

Innumerable Abrasions 

When she died on July 2, 2004, court documents state, Yellowbear’s daughter Marcella Hope Yellowbear was 22 months old, and riddled with “innumerable abrasions, wounds, burns, and broken bones.”  

The cause of her death was deemed “repetitive, abusive, blunt-force injuries,” and the manner of death was homicide.  

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Federal Judge Sides With Wyoming Gun Owners In Campaign Ad Lawsuit

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By Jim Angell and Ellen Fike, Cowboy State Daily

A federal judge has ruled that the state cannot force a Second Amendment advocacy group to share the names of its donors.

Judge Scott Skavdahl ruled Monday in favor of the group Wyoming Gun Owners, finding that the Wyoming law requiring the the group to share a list of people who helped pay for a campaign ad is unconstitutional.

“This case demonstrates the delicate balance of the First Amendment right to engage in political speech verses the need to provide for an informed electorate during elections by requiring disclosure of those who are funding media and promoting certain candidates throughout election season,” Skavdahl wrote.

“However, while this is of critical importance, the state can only impose these disclosure and disclaimer requirements where it satisfies exacting scrutiny,” he wrote.

The lawsuit stems from a radio ad paid for by WyGO in 2020 comparing state Senate candidates Anthony Bouchard and Erin Johnson. The ad portrayed Bouchard as a Second Amendment champion and Johnson as a “self-described, country-club, chamber of commerce moderate.”

The Wyoming secretary of state’s office, acting on a complaint, said WyGO was required to file campaign finance reports, including a list of contributions and expenditures, because it had spent more than $500 on “political activity.”

The state cited a law which requires groups involved in such activity to list all contributions of more than $100 used for political activity.

But Skavdahl said it would be impossible for the organization to determine which contributions would be used specifically for political advertising and which would be used to pay for other activities, such as the group’s newsletters.

“WyGO does not only fund electioneering communications or focus on election issues, but rather offers several media formats to keep subscribers informed on Second Amendment rights,” the ruling said.

Skavdahl also said the statute is also unconstitutional because it calls for the reporting of expenditures which “relate to” campaign communications, a term he said was unconstitutionally vague.

As a result, the law is unconstitutional as it was applied to WyGO, Skavdahl wrote.

Bouchard said he tried to warn fellow legislators the language in the law was an unconstitutional obstacle to the First Amendment.

“During this year’s session, another bill to expand the same section of law was passed and signed by the Governor,” he told Cowboy State Daily. “Both times I argued against the legislation and tried to amend it. It fell on deaf ears. It makes the judge’s order ever so sweet. 

“Yes, free speech matters,” he continued. “I told you so.”

Secretary of State Ed Buchanan said his office would review the ruling and added he was glad the court had decided the issue.

“When there is disagreement about the meaning of a particular statutory provision, the appropriate place to seek clarification is with the judicial branch,” he said. “I am grateful that is what occurred in this case.

“I would like to thank the court for its well-reasoned decision,” he continued.

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