Petition for Writ of Certiorari — V-1 Oil Co. v. Gerber

- Supreme Court, US,

FILED

90-351

AUG 22 1990

No. = _ JOSEPH F. SPANIOL,

CLERK

—

IN THE

Supreme Court of the United States

OcTOBER TERM 1990 -

STEVEN P. GERBER,

Cross-Petitioner,

V.

V-1 OIL COMPANY,

Cross-Respondent.

CROSS-PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOSEPH B. MEYER

Attorney General

State of Wyoming

Mary B. GUTHRIE

Senior Assistant

Attorney General

Counsei of Record

STEVE JONES ?

Senior Assistant

Attorney General

State of Wyoming

123 Capitol Building

Cheyenne, Wyoming 82002

(307) 777-7841

Attorneys for

Cross-Petitioner

Steven P. Gerber

QUESTIONS PRESENTED FOR REVIEW

1. Is WYO. STAT. §35-11-109(aXvi) (Cum. Supp. 1990),

which permits warrantless administrative searches by en-

vironmental inspectors, constitutional under the fourth

amendment?

2. Was V-1 Oil Company’s expectation of privacy adequate

to support an action pursuant to 42 U.S.C. §1983?

3. Is Steven P. Gerber entitled to good faith qualified im-

munity from suit under 42 U.S C. §1983, on the ground that

he did not violate a clearly established right of V-1 Oil

Company?

(1)

il

LIST OF PARTIES

Steven P. Gerber brings this matter before the United

States Supreme Court on a cross-petition for writ of certiorari.

V-1 Oil Company, a Wyoming corporation, is named in this

matter as the Cross-respondent.

ill

TABLE OF CONTENTS

Page

Sap gy fo TR on 4 | i

er ee re il

I PE a i se cakes cwuscueewsnwne en 1

Ra ET a et aN Pa RE 2

CONSTITIONAL PROVISIONS

AND STATUTES INVOLVED ................... 2

SiAlmmmnt OF Ime CASE .... 2... ccc cc cece 4

REASONS THE CROSS-PETITION

eS gS 5

I. THE CONSTITUTIONALITY OF WARRANTLESS

ENVIRONMENTAL INSPECTION STATUTES IS

AN ISSUE OF NATIONAL IMPORTANCE .... 6

I]. THE EXTENT OF A RETAIL BUSINESS’ EXPEC-

TATION OF PRIVACY IS AN IMPORTANT NA-

TIONAL ISSUE ON WHICH GUIDANCE FROM

pe ets gs 0: | 9

Ill. THERE IS A CONFLICT BETWEEN CIRCUIT

COURTS OF APPEAL ON THE SUBJECT OF

GOOD FAITH QUALIFIED IMMUNITY ...... 11

i a 6 oy ake Ga eb k ee ds ce wee ee 13

7 iv

TABLE OF AUTHORITIES

COURT CASES:

Air Pollution Variance Board v.

Western Alfalfa Corp.,

es ED cae hence ween ecnas

Anderson v. Creighton,

ee St: STD ie os sks ee ck ee ecaus

Blair v. Freeman,

Oe SMe NO CRUD ok cc nce cwksnes

Donovan v. Dewey,

| ee ree

Dow Chemical Company v. United States,

ge ee ee ree ee

Freeman v. Blair,

793 F.2d 166 (8th Cir. 1986) .............

Freeman v. Blair,

862 F.2d 1330 (8th Cir. 1988) ............

G.M. Leasing Corp. v. United States,

OS ea

Hester v. United States,

SN ee UD is wo a ies en ee on hs os

Katz v. United States,

a

Michigan Department of State Police v. Sitz,

bites: SE , 110 S.Ct. 2481,

E50 LB Be SEF CGR) . ww. ease.

New York v. Burger,

458 US. -GOl (1967)... 2.6. cease

Oliver v. United States,

oe | Peer errr

Payton v. New York,

445 U.S. 573 (1980)

Rakas v. Illinois,

439 U.S. 128 (1978)

ee 6 4 6 8 &. 6 Oe #6 OS OOo SS

Page

7,8

11

Smith v. Maryland,

Oe Siu. FO IO as hk eee tee ea kas 10

V-1 Oil v. State of Wyoming, et al,

902 F.2d 1482 (10th Cir. 1990) ........ | ae

V-1 Oil v. Stete of Wyoming, et al,

696 F. Supp 578 (D. Wyo., 1988) ....... 1

CONSTITUTION:

US. Comet., ameomd. IV... wwe nice, 2

US. Gomet., ememd. ZIV... 2... eciau nuk.

bo

STATUTES AND COURT RULES:

7 USC. HON 6.6 aS. 6

15 US.C.99810 ...... 5. ese oe eas cess 6

98 UBL. 19641)... 2c. oe bcc: 2

33 U.S.C. §1318(aXB) .......0. 00 eee ee. 6

UAC. 18 as ee i, 2, 3, 5, 11, 12

Re Wa STM) ke a a ee eee ee 6

SE Tia. SH oo ee 6

Ge Te, GR Ge he eee 6

SB UG: Ge nko caves cnneesa ne 6

Rule 12.3 of the Rules of the

Supreme Court of the United States .... 2

SAR. STAT. $26-30-246 22. cece ees 12

WYO. STAT. §35-11-109%(aXvi)

(Com. Bee. TOG? nc leek se cae de i, 3

In THE

Supreme Court of the United States

OcToOBER TERM 1990

STEVEN P. GERBER,

Cross-Petitioner,

V.

V-1 OIL COMPANY,

Cross-Respondent.

CROSS-PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Cross-petitioner, Steven P. Gerber, requests that a writ of

certiorari be issued to review the judgment and opinion of

the United States Court of Appeals for the Tenth Circuit en-

tered on April 30, 1990.

OPINIONS BELOW

On September 28, 1988, the U.S. District Court fcr the Dis-

trict of Wyoming issued its decision in this matter, which

has been recorded at 696 F.Supp. 578 (D. Wyo. 1988). V-1

Oil Company appealed the decision of the District Court to

the Tenth Circuit Court of Appeals. The opinion of the Court

of Appeals is reported at 902 F.2d 1482 (10th Cir. 1990). A

copy of the Tenth Circuit’s opinion has been attached to V-1

Oil Company’s Petition for Writ of Certiorari as Appendix A.

2

A copy of the opinion of the U.S. District Court is attached

to V-1 Oil Company’s Petition for Writ of Certiorari as Ap-

pendix B.

JURISDICTION -

The judgment of the United States Court of Appeals for the

Tenth Circuit was entered on April 30, 1990. Jurisdiction

of this Court is invoked pursuant to 28 U.S.C. §1254(1). This

suit was brought initially pursuant to 42 U.S.C. §1983.

The Cross-respondent, V-1 Oil Company, filed a petition

for writ of certiorari in this matter on July 23, 1990. The

Cross-petitioner received that petition on July 23, 1990. The

Cross-petition is submitted pursuant to Rule 12.3 of the Rules

of the Supreme Court of the United States.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The following constitutional provisions and statutes are in-

volved:

United States Constitution

Amendment IV

The right of the people to be secure in their persons, houses,

papers and effects, against unreasonable searches and sei-

zures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the per-

sons or things to be seized.

“United States Constitution

Amendment XIV, Section 1

All persons born or naturalized in the United States and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shal]

make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

3

State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its juris-

diction the equal protection of the laws.

TITLE 42 U.S.C. §1983 ;

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the juris-

diction thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in eq-

uity, or other proper proceeding for redress. For the purposes

of this section, any Act of Congress applicable exclusively

to the District of Columbia shall be considered to be a sta-

tute of the District of Columbia.

WYO. STAT. §35-11-109 (Cum. Supp. 1990)

Powers and duties of director.

(a) In addition to any other powers and duties imposed by

law, the director of the department shall:

(vi) Designate authorized officers, employees or repre-

sentatives of the department to enter and inspect

any property, premise or place, except private resi-

dences, on or at which an air, water or land pollu-

tion source is located or is being constructed or

installed, or any premises in which any records re-

quired to be maintained by a surface coal mining

permittee are located. Persons so designated may

inspect and copy any records during normal busi-

ness office hours, and inspect any monitoring equip-

ment or method of operation required to be

maintained pursuant to this act at any reasonable

time (upon reasonable notice) upon presentation of

appropriate credentials, and without delay, for the

purpose of investigating actual or potential sources

4

of air, water or land pollution and for determining

compliance or noncompliance with this act, and any

rules, regulations, standards, permits or orders

promulgated hereunder. For surface coal mining

operations, right of entry to or inspection of any

operation, premises, records or equipment shall not

require advance notice. The owner, occupant or

operator shall receive a duplicate copy of all reports

made as a result of such inspections within thirty

(30) days. The Department shall reimburse any

operator for the reasonable costs incurred in

producing copies of the records requested by the

department under this section.

STATEMENT OF THE CASE

Steven P. Gerber is the Northwest District Supervisor for

the Wyoming Department of Environmental Quality, Water

Quality Division. Part of Mr. Gerber’s duties include inves-

tigating discharges of pollution, including petroleum

products, into surface water or groundwater within the

State.

The actions taken by Cross-petitioner Gerber in this mat-

ter occurred on April 28, 1988, in Lander, Wyoming at a re-

tail gasoline station owned by Cross-respondent V-1 Oi!

Company (hereinafter “the V-1 station’).

The V-1 station is a self service gasoline station that sells

gasoline to retail customers and is open to the public during

normal business hours from 7:00 a.m. until 9:00 p.m. daily.

In addition to selling gasoline, the V-1 station also sells liquid

propane and certain grocery products and operates a video

movie rental business.

When Steve Drake, an employee of V-1 Oil, came on duty

at the station at 3:00 p.m. on April 28, 1988. Rick Evans,

the station manager, told him to notify him if anyone want-

ed to “look at dirt or whatever” and that “DEQ might come

by and look at it.”

et

5

At approximately 8:20 p.m., Cross-petitioner Gerber, act-

ing upon the advice of an assistant attorney general for

the State of Wyoming, walked onto the V-1 station premises

and notified the attendant that he was there to conduct an

inspection of the nremises pursuant to state statute. Mr.

Gerber had been «ware that the V-1 station was a source of

gasoline pollution because samples of groundwater taken

from wells located hydrologically downgradient from the V-1

station had revealed that the groundwater was polluted by

gasoline.

Mr. Gerber inspected the area where underground storage

tanks containing gasoline were located. He observed that the

underground storage tanks, although they had been unco-

vered, were being prepared for testing, and not removal. Mr.

Gerber also noticed very strong hydrocarbon odors in the ex-

cavation area. He collected a sample of soil near one of the

underground storage tanks. Shortly thereafter, Mr. Gerber

left the area. The entire incident lasted approximately ten

minutes.

REASONS THE

CROSS-PETITION SHOULD BE GRANTED

Summary

This matter should be heard by the Court for three rea-

sons. It presents an important question of the constitution-

ality of warrantless administrative search statutes relat-

ing to environmental violations. It presents an excellent

opportunity for the Court to define the limits of a reason-

able expectation of privacy, in the context of a retail busi-

ness setting, for actions brought pursuant to 42 U.S.C. §1983.

Finally, a conflict in circuit court opinions exists on the is-

sue of good faith qualified immunity from suit in civil rights

action.

6

I.

THE CONSTITUTIONALITY OF WARRANTLESS

ENVIRONMENTAL INSPECTION STATUTES IS

AN ISSUE OF NATIONAL IMPORTANCE.

Introduction

In the last twenty-five years, Congress has passed an ar-

ray of environmental statutes which give inspectors “‘a right

of entry” to various facilities.’

All of these inspection statutes authorize the federal govern-

ment to enter and inspect designated property without ob-

taining a search warrant. These statutes are not limited to

particular types of businesses.

The State of Wyoming’s environmental inspection statute

covers all businesses at which a pollution source may be

1. See Clean Water Act of 1977 $308, 33 U.S.C. §1318(aXB) (1986). (Giv-

ing the administrator a right of entry to, upon or through a facility

in which an effluent source is located or in which any records required

to be maintained under the Act or located in and to have access or copy

such records, inspect monitoring, equipment and sample effluents);

Comprehensive Environment Response. Compensation and Liability

Act of 1980 (CERCLA) §104(e), 42 U.S.C. §9604(e) (West Supp. 1985)

(giving any officer, employee, or representative of the President, duly

designated by the President, the right to enter at reasonable times,

any vessel, facility, establishment or other place or property where any

hazardous substance may be or has been generated, stored, treated,

disposed of or transported from, from which or to which a hazardous

substance has been or may have bene released, where such a release

is or may be threatened or where entry is needed to determine the need

for or the appropriate response or to effectuate a response action)

(amended by SARA 1986); Resource Conservation and Recovery Act

of 1976 (RCRA) $3007, 42 U.S.C. §6927(aX 1982) (giving the Adminis-

trator a right of entry to, upon or through in which an effluent sources

is located and to have access to or copy such records, inspect monitor-

ing equipment and sample emissions); Hazardous Liquid Pipeline Safety

Act of 1979 §211(c), 49 U.S.C. §2010(c) (West Supp. 1988); Hazardous

Materials Transportation Act of 1974 §10%c), 49 U.S.C. §1808ic) (1982);

Federal Insecticide. Fungicide and Rodenticide Act (FIFRA) §9, 7 U.S.C.

§136g(aX 1980); Toxic Substances Control Act (TSCA) §11, 15 U.S.C.

§2610 (1982).

7

located. Except for this somewhat broader “‘pollution source”

language, Wyoming’s inspection statute is very similar to

the federal inspection statutes contained in several federal

environmental protection acts.

Both federal and state governments have recognized the

need to conduct environmental inspections without search

warrants. If the Tenth Circuit opinion is allowed to stand,

the constitutionality of those statutes would be challenged.

This, under at least some circumstances, would be a disaster

for environmental! enforcement in the United States.

A Balancing Test Reveals that Searches of this Type are

Reasonable.

The expectation of privacy of a commercial business own-

er must be balanced against the considerable public need to

use warrantless inspection statutes of general applicability.

In Michigan Department of State Police v. Sitz, __ U.S. _.,

110 S.Ct. 2481, 110 LEd2d 412 (1990), the Court utilized a

balancing testing in which a substantial state interest was

weighed against a defendant’s expecation of privacy. The

Court also observed that in order for a search to be valid it

must be “reasonable” under the fourth amendment. 110 S.Ct.

at 2485.

Based on its holding in Sitz, the Court should now examine

Wyoming's administrative inspection statute to determine

whether environmental inspections are reasonable. There is

a substantial governmental interest in protecting the en-

vironment and the public from harmful pollution. This in-

terest, if balanced against the slight intrusion on the privacy

expectations of V-1 Oil Company, must weigh more heavi-

ly. Under such a balancing test, the search conducted by

Cross-petitioner Gerber is reasonable and within the bounds

of the fourth amendment.

Probable cause to conduct the search was established by

the State’s evidence that gasoline was present in the ground-

water immediately downgradient from the V-1 Oil station.

The warrantless search was also reasonable because of the

8

need to collect information without delay. The State had

made an effort to obtain a court order. But only after it was

obvious that a court order could not be obtained while the

tanks were still exposed did the state abandon its efforts to

get a warrant. The need for this warrantless administrative

inspection was great and the governmental interest was sub-

stantial. Further, the statute under which Mr. Gerber oper-

ated limited the inspection as to time, place and scope.

Balanced against this need for a warrantless inspection,

is V-1 Oil Company’s arguable expectation of privacy.

However, any expectation of privacy that V-1 Oil Company

had was, at best, insignificant. The V-1 station sold gasoline

to the public and the public was free to enter on its property

for that purpose, as well as to buy grocery items, or rent mo-

vies. The underground storage tanks which were inspected

by Cross-petitioner Gerber were in open view. There was no

enclosure around the area.

Under the balancing test of Michigan Department of State

Police v. Sitz, supra, Mr. Gerber’s search was reasonable.

The Wyoming Warrantless Environmental Inspection

Statute Meets the Requirements of New York v. Burger.

In New York v. Burger, 482 U.S. 691 (1987), this Court held

that a New York statute which authorized the warrantless

inspection of automobile junkyards satisfied the fourth

amendment. The Court specifically held that in order for a

warrantless inspection statute to be valid the statute must

support a substantial governmental interest; the statute must

be necessary to further a regulatory scheme; and the statute

must be limited in time, place and scope so that the inspec-

tor has little discretion.

It is undisputed that Cross-petitioner Gerber complied with

the Wyoming statute when he made his warrantless inspec-

tion. The inspection occurred while the gasoline station was

open during regular business hours. Mr. Gerber presented

his credentials and “inspected without delay.’’ Mr. Gerber’s

9

inspection was limited to investigating “sources of pollution.”

All that Mr. Gerber did was observe the station’s under-

ground storage tanks and take a small sample of soil near

the tanks.

The environmental inspection of a closely regulated indus-

try, such as the retail distribution of gasoline, under a sta-

tute which authorizes the investigation of any “actual or

potential sources of pollution” should be upheld by this Court.

“There was a substantial governmental interest in the pro-

tection of the environment and the public from pollution. The

warrantless inspection was necessary to further the State’s

regulatory environmental scheme. The Wyoming statute em-

bodies the two basic aspects of a warrant: it requires that

the owner of the commercial premises be advised that the

search was being made pursuant to law and it limits the scope

of the search to environmental! concerns. The statute further

limits the discretion of the inspecting officer by requiring that

the inspection be made “during normal office hours” or at

a “reasonable time.”’ New York v. Burger, 482 U.S. at 711.

Furthermore, the scope of the statute is properly defined. An

inspection is only permitted so that actual or potential sources

of pollution may be identified.

The effect of the Tenth Circuit’s opinion will be to require

both Congress and state legislatures to develop statutes

which recite a laundry list of inspection authority for vari-

ous closely regulated businesses. This is unnecessary when

the essential requirements of New York v. Burger, supra,

have been met and when the need for warrantless environ-

mental inspections is clearly in the public interest.

II.

THE EXTENT OF A RETAIL BUSINESS’ EXPEC-

TATION OF PRIVACY IS AN IMPORTANT NA-

TIONAL ISSUE ON WHICH GUIDANCE FROM

THE COURT IS NEEDED.

The fourth amendment to the United States Constitution

protects “people” and secures them against unreasonable

10

searches of their “persons, houses, papers and effects.”

Whether an unreasonable search has occurred will depend

in part upon whether the person had an expectation of privacy

in the thing or area to be searched.

While an expectation of privacy has been held to extend

to commercial premises, that expectation is less than an in-

dividual has in his own home. Donovan v. Dewey, 452 U.S.

594, 598-99 (1981). This expectation of privacy for business-

es in “closely regulated” industries is particularly attenu-

ated. New York v. Burger, 482 U.S. at 700.

In Katz v. United States, 389 U.S. 347, 361 (1967), in a con-

currence, Justice Harlan set out a two-prong test for deter-

mining whether an expectation of privacy had been violated.

First, there must be an actual or subjective expectation of

privacy in the area inspected. Second, that expectation must

be one that society would deem reasonable. 389 U.S. at 361.

See also, Smith v. Maryland, 442 U.S. 735, 740 (1979) and

Rakas v. Illinois, 439 U.S. 128, 139-40 (1978)

At some point, under the Katz doctrine, the outer limits

of a corporation’s expectations of privacy is reached. This case

presents an excellent opportunity for this Court to define pre-

cisely the nature of those outer limits.

As this Court concluded in Air Pollution Variance Board

v. Western Alfalfa Corp., 416 U.S. 861 (1974), privately owned

lands constitute ‘‘open fields” so long as the public is able

to enter them. 416 U.S. at 865. The principle that no expec-

tation of privacy exists in an open field was first articulated

in Hester v. United States, 265 U.S. 57 (1924). In Dow Chem-

ical Company v. United States, 476 U.S. 227 (1986), the Court

declined to find any “industrial curtilage” in which a corpo-

ration could claim that it had a legitimate expectation of

privacy. Without a reasonable expectation of privacy, there

can be no violation of fourth amendment rights, and there-

fore, no need to obtain a search warrant.

As was made clear in Air Pollution Variance Board v.

Western Alfalfa Corp., supra, entry onto private land on which

11

the public is able to enter does not constitute an unreason-

able search. Similarly, Cross-petitioner Gerber’s entry onto

the retail gasoline station owned by V-1 Oil Company should

not be considered to have constituted an unreasonable search,

because he did not intrude upon any legitimate expectation

of privacy.

It is true that Mr. Gerber also took a sample of soil from

near the underground storage tanks. Because Mr. Gerber not-

ed strong hydrocarbon odor in the area of the underground

storage tanks, his removal of a soil sample as evidence was

justified under the plain view doctrine. Payton v. New York,

445 U.S. 573, 586-87 (1980) and G.M. Leasing Corp. v. Unit-

ed States, 429 U.S. 338, 354 (1977). He was legitimately

present on the V-1 station property, as any member of the

public would be, and only after smelling the strong odor

emanating from the tank area (the equivalent of a “plain

view’) did the need to preserve the soil sample as evidence

arise. Probable cause was present and the evidence was seized

from an essentially open field. See Oliver v. United States,

466 U.S. 170 (1984).

The use, or misuse, of 42 U.S.C. §1983, by corporations as

a vehicle for filing lawsuits against governmental officials

will be greatly expanded if the Tenth Circuit Court of Ap-

peals decision is allowed to stand. However, a ruling from

this Court on the limits of a corporation’s reasonable expec-

tations of privacy in retail business establishments would

decrease the number of such lawsuits to situations where a

corporation’s privacy has actually been invaded.

IIT.

THERE IS A CONFLICT BETWEEN CIRCUIT

COURTS OF APPEAL ON THE SUSJECT OF

GOOD FAITH QUALIFIED IMMUNITY.

In Freeman v. Blair, 793 F.2d 166 (8th Cir. 1986), the Cir-

cuit Court of Appeals for the Eighth Circuit held that South

Dakota officials who had inspected a campground pursuant

12

to a warrantless administrative search statute were not en-

titled to a good faith qualified immunity from suit for actions

brought under 42 U.S.C. §1983. The ratio decidendi was that

the statute did not provide sufficiently detailed guidelines

to insure that the warrantless inspection of campgrounds

would be conducted with the requisite “certainty and regular-

ity.” 793 F.2d at 175. S.DAK. STAT. §34-18-24 directed the

Secretary of Health to “‘periodically inspect ...every...

campground operating within this state for compliance with

the provisions of this chapter and the rules and regulations

of the Department of Health.’”” Any search was to be done

at any “reasonable time.” See Freeman v. Blair, 793 F.2d

at 175.

The case was appealed and the United States Supreme

Court, in Blair v. Freeman, 483 U.S. 1014 (1987), reversed

and remanded with instructions to the Eighth Circuit to de-

cide the case in light of this Court’s decisions in Anderson

v. Creighton, 483 U.S. 635 (1987) and New York v. Burger,

supra.

On remand, the Eighth Circuit Court concluded that at the

very least, the regulatory scheme established by the South

Dakota statute was “not sufficiently obvious to make the

defendant’s reliance on the scheme objectively unreasonable.”

Freeman v. Blair, 862 F.2d 1330, 1331 (8th Cir., 1988). The

defendants in that case were, therefore, entitled to a good

faith qualified immunity from suit.

At the time of the inspection conducted by Cross-petitioner

Gerber, Blair v. Freeman was on remand. At that point in

time, a reasonable interpretation of the status of warrant-

less inspection statutes would have been that any statute

which was at least minimally circumscribed would general-

ly be viewed as constitutional. Yet, the Tenth Circuit Court

of Appeals in V-1 Oil v. State of Wyoming, et al., 902 F.2d

1482 (10th Cir. 1990) ruled that the law in this area is clear-

ly established and that Cross-petitioner Gerber would not

have been entitled to a good faith qualified immunity from

suit, but for extraordinary circumstances.

13

There is a clear contradiction between the Eight and Tenth

Circuit Courts of Appeal on this issue. The Supreme Court

should settie this conflict.

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari

should be granted.

Respectfully submitted,

JOSEPH B. MEYER

Attorney General

Mary B. GUTHRIE*

Senior Assistant

Attorney General

STEVE JONES

Senior Assistant

Attorney General

123 Capitol Building

Cheyenne, Wyoming 82002

(307) 777-7841

Attorneys for Cross-Petitioner

Steven P. Gerber

August, 1990

* Counsel of Record