Lacombe v. City of Cheyenne , 733 P.2d 601 ( 1987 )

THOMAS, Justice.

At issue in this case is whether a stipulation setting forth the traditional plea bargaining practice in the Municipal Court of the City of Cheyenne is sufficient to afford standing to Larry J. LaCombe to challenge the constitutionality of § 31-5-233(h), W.S. 1977, Nov. 1984 Replacement. The Municipal Court of the City of Cheyenne denied a motion for a declaratory judgment which challenged the constitutionality of the statute and found Larry J. LaCombe guilty of the offense of driving while under the influence of intoxicating beverages in violation of § 31-5-233, W.S.1977, as adopted by the City of Cheyenne Municipal Ordinance No. 28-2. An appeal was taken to the District Court of the First Judicial District in and for Laramie County, and the conviction was affirmed. We conclude that LaCombe does not enjoy standing to challenge the constitutionality of this statute on the premise that it violates the separation of powers doctrine, and we dismiss this appeal without addressing other contentions.

In his brief Larry J. LaCombe asserts the following issues:

“I. Does Section 31-5-233(h) W.S.1977 (Cum.Supp.1986) violate the separation of powers mandated by Article 2, Section 1 of the Wyoming Constitution?

“Argument 1: Appellant has standing to challenge the constitutionality of Section 31-5-233(h) W.S.1977 (Cum.Supp.1986). “Argument 2: Section 31-5-233(h) W.S. 1977 (Cum.Supp.1986) violates the separation of powers mandated by Article 2 Section 1 of the Wyoming Constitution. “Argument 3: The unconstitutionality of Section 31-5-233(h) W.S.1977 (Cum.Supp. 1986) applies to prosecutions in municipal courts.”

This appeal is defended by the City of Cheyenne which articulates the questions in this way:

“Issue I: Does Section 31-5-233(h) W.S. 1977 (Cum.Supp.1985) violate the separation of powers mandated by Article 7, Section 1, of the Wyoming Constitution? “Argument I: Section 31-5-233(h) W.S. 1977 (Cum.Supp.1985) does not violate the separation of powers mandated by Article 2, Section 1, of the Wyoming Constitution.

“Argument II: The issue of constitutionality of Section 31-5-233(h) W.S.1977 (Cum.Supp.1985) does not apply to prosecutions in municipal courts.”

On September 10, 1984, LaCombe was arrested by an officer of the Police Department of the City of Cheyenne and charged with driving while under the influence of intoxicating beverages in violation of § 31-5-233, W.S.1977, as adopted by the City of Cheyenne in Ordinance No. 28-2, and careless driving proscribed by § 28-184 of the ordinances of the City of Cheyenne. La-Combe pleaded not guilty to both charges, and the case was set for trial. LaCombe then filed a motion for declaratory judgment in which he asserted that the state statute which had been adopted by Ordinance No. 28-2 of the City of Cheyenne is unconstitutional. He contended that § 31-5-233(h), W.S.1977, inhibits the authority of the prosecuting attorney to enter into plea bargains which is an unconstitutional invasion by the legislative branch of government of the prerogatives of the executive branch in violation of Article 2, Section 1 of the Wyoming Constitution. Thereafter, briefs were filed on behalf of LaCombe and the City. In addition, a stipulation was made by the City of Cheyenne and La-Combe which provided in operative part as follows:

“1. The Defendant, Larry J. LaCombe, was arrested and charged with the offense of Driving While Under the Influence of alcohol contrary to W.S. 31-5-233 and Cheyenne Municipal Ordinance 28-2. “2. The record of the Defendant herein reflects no previous convictions for violations of said W.S. 31-5-233 or Cheyenne Municipal Ordinance 28-2.

“3. Prior to the effective date of enrolled Act No. 30, 47th Legislature of the State of Wyoming, 1984, Budget Session, the Defendant herein would have routinely been allowed to plead guilty to the charge of careless driving, pay a substantial fine and receive a suspended jail term conditioned upon no further alcohol related offenses for a period of one (1) year and in return therefore the charge of D.W.U.I. under W.S. 31-5-233 and Municipal Ordinance 28-2 would have been dismissed.

“4. As a result of the enactment of W.S. 31-5-233(h) the prosecuting attorney for the City of Cheyenne is prohibited from reducing or dismissing a charge of D.W.U.I. unless said attorney in open court moves or files a statement to reduce the charge or dismiss, with supporting facts, stating that there is insufficient evidence to sustain the charge.

“5. But for the enactment of said W.S. 31-5-233(h) the Defendant herein would have been allowed to enter into an agreement as discussed in paragraph 3 above and the charge of Driving While Under the Influence of alcohol contrary to W.S. 31-5-233 and Municipal Ordinance 28-2 would have been dismissed.”

After trial on the merits, the Municipal Court of the City of Cheyenne denied La-Combe’s motion for declaratory judgment, found him guilty of both charges and fined him $240 plus $10 in court costs. LaCombe then appealed to the district court alleging error in the failure of the municipal court “to declare W.S. Section 31-5-233(h) unconstitutional as an impermissible intrusion by the Legislative branch of government into the scope of the Executive branch in violation of Article 2, Section 1 of the Constitution for the State of Wyoming.” The district court decided the appeal by a letter to counsel in which that court affirmed the convictions. The district court ruled that the separation of powers doctrine does not extend to municipalities and furthermore that the city prosecutor was not an extension of the executive arm of the state. The district court concluded that the appellant had failed to meet his burden of proof to overcome the presumption of constitutionality accorded to the statute and affirmed his conviction.

The decision of the district court was filed prior to the decision of this court in Gooden v. State, Wyo., 711 P.2d 405 (1985). We held in that case that the defendant did not have standing to challenge the constitutionality of § 31-5-233(h), W.S.1977, because her argument that it inhibited prose-cutorial discretion which infringed upon the separation of powers doctrine did not demonstrate an adverse impact upon her rights. LaCombe seeks to distinguish that case by focusing upon the comment in the opinion of the court to the effect that nothing appeared in the record or in the briefs to suggest that the prosecutor had any desire to enter into any plea bargain with Gooden. Pointing to the stipulation which is quoted above, LaCombe contends that he has provided the requisite factual basis for asserting infringement upon his rights by this statute.

LaCombe’s contention is not well taken. It simply ignores the point that this court went on to make in Gooden v. State, supra, to the effect that the law does not vest in any criminal defendant any right to a plea bargain. Our conclusion in Gooden v. State, supra, was that whether the statute was unconstitutional was a matter which Gooden could not raise because, lacking a right to a plea bargain, she had no personal stake in any unconstitutional infringement by the statute upon the discretion of the prosecutor.

We conclude that LaCombe lacks standing to present the contention which he argues in his brief. Apparently the City of Cheyenne would like to have the constitutional matter resolved, because it chose to concede standing and argue the case on the merits. We do not permit parties to confer standing by agreement, and our decision is that this appeal must be dismissed.

Because we dismiss for lack of standing by the appellant to present his claims, we have no occasion to consider the unconstitutionality of § 31-5-233(h), W.S.1977, nor the claim that such unconstitutionality would have efficacy at the municipal government level. The appeal is dismissed.

URBIGKIT, J., filed a dissenting opinion.