# Billis v. State

> Wyoming Supreme Court · October 5, 1990 · 800 P.2d 401

URL: https://www.frixlaw.com/law-library/cases/9792512

## Case

- **Full name:** Jeffrey D. BILLIS, Appellant (Defendant), v. the STATE of Wyoming, Appellee (Plaintiff); Vicki MOON, Appellant (Defendant), v. the STATE of Wyoming, Appellee (Plaintiff); Wilfred J. VIGIL A/K/A Two Dogs, Appellant (Defendant), v. the STATE of Wyoming, Appellee (Plaintiff); Scott P. McIVER, Appellant (Defendant), v. the STATE of Wyoming, Appellee (Plaintiff); Nellie MAGARAHAN, Appellant (Defendant), v. the STATE of Wyoming, Appellee (Plaintiff); STATE of Wyoming, Plaintiff, v. Victoria LOWRY, Defendant
- **Court:** Wyoming Supreme Court
- **Decided:** October 5, 1990
- **Citations:** 800 P.2d 401; 1990 Wyo. LEXIS 119; 1990 WL 149946
- **Precedential status:** Published
- **Opinion:** Dissent by MacY
- **Judges:** Urbigkit, Thomas, Cardine, MacY, Golden
- **Cited by:** 99 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9792512

## How later opinions describe it (automated extraction)

- noting the judiciary has exclusive power in a prosecution “to adjudicate substantive legal issues raised by the litigants”

## Opinion text

MACY, Justice,
dissenting, with whom URBIGKIT, Chief Justice, joins.
I dissent. I commend the author for his struggle to compose the prestigious opinion for the majority. I simply disagree and dissent with the hope that somehow it will help to discourage further erosion of our constitution.
I am firmly dedicated to the proposition that the power and duty to adjudicate should remain exclusively in the judiciary. It is axiomatic that it is a violation of the separation of powers doctrine for the legislature to require a presiding judge to obtain the consent of a member of the executive branch of government before he can enter an order imposing a legislatively determined alternative for the disposition of a criminal charge.
I cannot submit to the majority’s view that the framers of our constitution had in mind “a pragmatic, flexible view of differentiated governmental power.” To believe this is to ignore Article 2, Section 1 of the Wyoming Constitution, which plainly states:
The powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.
I am convinced that each of the three distinct departments of government, or, if you prefer, the “three air-tight compartments),” has exclusive power of its own not to be compromised in the interest of another branch of government. It was intended that there be a balance of power. If we continue to merge the powers, who is going to balance them?
We cannot carve out exceptions to our constitution without threatening the existence of the rights guaranteed by it. Once exceptions are made, the guarantees become shallow and meaningless, and further erosion becomes inevitable. Former Supreme Court Justice William 0. Douglas once commented:
But that guarantee is not self-executing. As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air — however slight — lest we become unwitting victims of the darkness.
The Douglas Letters: Selections from the Private Papers of Justice William 0. Douglas at 162 (M. Urofsky ed. 1987).
I am informed that at least one city council has instructed its prosecutor not to give his consent to allowing the first offender status, now permitted by Wyo.Stat. § 7-13-301 (1977), for an accused if he is charged with driving while under the influence of alcohol. It does not take a mental giant to foresee how the exception to the separation of powers doctrine carved out by the majority will expand and fall into common abuse, depending upon the whims of the prosecutor or his boss. Hopefully, we will not become victims of the darkness.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9792512. Public record. Not legal advice.