F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 16, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
RUDY STANKO, individually and on
behalf of similarly situated cattle
traders,
Plaintiff - Appellant, No. 04-8084
v.
JIM MAHAR, individually and in his
official capacity,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 04-CV-03-B)
Submitted on the briefs:
Rudy Stanko, Gordon, Nebraska, Plaintiff-Appellant, Pro se.
Patrick J. Crank, Attorney General, John W. Renneisen, Deputy Attorney General,
Misha Westby, Senior Assistant Attorney General, David L. Delicath, Assistant
Attorney General, Office of the Attorney General, Cheyenne, Wyoming for
Defendant-Appellee.
Before LUCERO, McKAY, and ANDERSON, Circuit Judges.
McKAY, Circuit Judge.
Plaintiff Rudy Stanko, proceeding pro se, appeals from the district court’s
order granting summary judgment to defendant Jim Maher 1
on Mr. Stanko’s
complaint alleging violations of his constitutional rights. 2
We affirm the entry of
summary judgment in favor of Mr. Maher. 3
FACTS
Mr. Stanko is a resident of Gordon, Nebraska who operates as a stock
owner and drover in Fremont, Natrona, and Teton Counties, Wyoming.
Mr. Maher is a brand inspector employed by the State of Wyoming Livestock
Board (Board).
1
The case caption spells Mr. Maher’s name “Mahar” but it appears that the
correct spelling is “Maher.”
2
Mr. Stanko’s complaint recites that it is brought pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Bivens creates a remedy for violations of constitutional rights committed by
federal officials acting in their individual capacities. Mr. Maher is a state brand
inspector. Therefore, this action arises, if at all, pursuant to 42 U.S.C. § 1983
rather than Bivens.
3
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
1. Stanko’s complaint
In his complaint, Mr. Stanko alleges that on or about November 9, 2003,
Mr. Maher went on land leased by Mr. Stanko south of Jackson, Wyoming,
without Mr. Stanko’s consent or a warrant, and seized five head of livestock,
consisting of two cow/calf pairs and one yearling. He further asserts that
Mr. Maher, possibly acting in concert with others, 4
then transported the cattle to
Fremont County and instructed that they be sold at the Riverton Livestock
Exchange.
Mr. Stanko asserts that he is the owner of the cattle and has not been
compensated for them. He contends that Mr. Maher violated the United States
and Wyoming Constitutions by infringing on his rights to due process and just
compensation and by conducting an impermissible warrantless seizure. He further
asserts that Mr. Maher abused his office in violation of the Wyoming
Constitution.
2. Maher’s motion for summary judgment
In his motion for summary judgment, Mr. Maher states that Mr. Stanko
does business as Fish Creek Cattle Company (Fish Creek). Three separate brands
4
As originally captioned, Mr. Stanko’s complaint included four unnamed
“John Doe” defendants. He later moved to amend his complaint, asserting that he
had identified some of these defendants through the discovery process. The
district court denied this motion, however, finding that Mr. Stanko had failed to
comply with certain local rules in connection with the motion.
-3-
are registered with the Board for use by Fish Creek. (Mr. Maher supplies a copy
of the brand registrations for these brands.) Mr. Maher further recites that Fish
Creek leases the Sherr-Thoss Ranch in Teton County, Wyoming for its cattle
operation.
In the fall of 2003, Fish Creek wanted to move its cattle to a location
outside Teton County. Under the Wyoming Statutes, the cattle had to be brand
inspected before they could be moved across county lines. Mr. Maher contends
that Mr. Stanko arranged for the required inspection of the cattle he intended to
remove from Teton County.
Mr. Maher further contends that on November 6, 2003, he and another
brand inspector went to the Sherr-Thoss Ranch to inspect brands on the cattle
Mr. Stanko wanted to remove from Teton County. Five of the animals inspected
– two cows, two calves and one steer -- did not bear brands registered to Fish
Creek. To be certain of the brands, Mr. Maher shaved the animals on their right
shoulder and right hip, but still did not find any Fish Creek brands. He did detect
two brands on each of the cows: (1) the Double T brand belonging to the Mary
Mead Revocable Trust, on each of their left shoulders, and (2) the A-Bar brand
registered to Leland and Karen Turner, on each of their left ribs. The calves were
not branded. The steer bore a mottled brand that Mr. Maher believes may have
been the Turner’s A-Bar, the Triangle brand registered to the Estate of Marvin
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Taylor Lawrence, or some similar brand. Mr. Maher removed all five animals as
estrays and completed an Estray Livestock Report.
Mr. Maher states that Mr. Stanko telephoned him on November 9, 2003 and
demanded return of the five cattle. He told Mr. Stanko that he must produce
proof of ownership of the animals; Mr. Maher contends that Mr. Stanko refused to
do this. Because Mr. Stanko did not produce proof of ownership, Mr. Maher
consigned the cattle to the Riverton Livestock Auction for sale. The animals were
sold and the proceeds were deposited with the Board. Mr. Maher further contends
that Mr. Stanko failed to petition the Board for a hearing concerning the Board’s
actions.
3. Mr. Stanko’s response
In Mr. Stanko’s response to Mr. Maher’s motion for summary judgment, he
disagrees with some of the aforementioned facts. He contends that he was the
owner of the livestock, that he did not request that the animals be removed from
Teton County, and that he did present his grievance before the Board at its
meeting on December 11, 2003. He attaches a number of documents that he
contends show his ownership of the cattle, and a Wyoming Livestock Board
Attendance Roster. As will be seen, none of these allegedly contested facts
precludes the entry of summary judgment on Mr. Stanko’s complaint.
-5-
ANALYSIS
1. Standard of review
We review a district court’s grant or denial of summary
judgment de novo. Summary judgment is appropriate if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. In determining whether the evidence
presents a genuine issue of material fact, we view it in the light most
favorable to the party against whom summary judgment was entered.
Petersen v. Farnsworth , 371 F.3d 1219, 1221 (10th Cir. 2004) (quotations and
citations omitted).
2. Alleged Seventh Amendment violation
Mr. Stanko contends that the district court deprived him of a right to trial
by jury in violation of the Seventh Amendment by entering summary judgment
against him. As we have stated on many occasions, however, “[t]he Seventh
Amendment is not violated by proper entry of summary judgment . . . because
such a ruling means that no triable issue exists to be submitted to a jury.”
Shannon v. Graves , 257 F.3d 1164, 1167 (10th Cir. 2001). Nor did the district
court engage in impermissible fact-finding, as he contends; its entry of summary
judgment was dependent on a determination that no genuine issue of material fact
existed for a jury to decide. See Fed. R. Civ. P. 56(c). 5
Mr. Stanko’s Seventh
5
Mr. Stanko also maintains that the entry of summary judgment violated Art.
(continued...)
-6-
Amendment assertion is valid only if summary judgment was improperly entered
in this case, an issue that we consider with regard to his other claims.
3. Alleged Fourth Amendment violation
Mr. Stanko contends that Mr. Maher and/or the State of Wyoming needed
an oath, affirmation and/or a warrant before they seized cattle belonging to him.
Mr. Maher responds that he seized the cattle as estrays, as he was permitted to do
by the Wyoming statutes.
The Wyoming brand inspection statutes provide that cattle may not be
removed from one Wyoming county to another without inspection:
Except as hereafter provided or except as provided in W.S.
11-20-224 [governing livestock used for “rodeo, show, racing,
pleasure or Wyoming farm or ranch work purposes” and supplied
with a permanent brand inspection certificate], it is unlawful for any
person, firm, partnership, corporation, or association to sell, change
ownership or to remove or cause to be removed in any way from any
county in Wyoming to any other county, state or country, any
livestock unless each animal has been inspected for brands and
ownership at the time of delivery or removal by an authorized
5
(...continued)
I, § 9 of the Wyoming Constitution. Federal law rather than state law governs the
use of summary judgment in the federal courts. Deepwater Investments, Ltd. v.
Jackson Hole Ski Corp., 938 F.2d 1105, 1106 (10th Cir. 1991). Even if Wyoming
law concerning the entry of summary judgment were relevant, the Wyoming
courts have held that the entry of summary judgment in a proper case is
appropriate, even though it may deprive a party of his right to jury trial. See
Fiedler v. Steger, 713 P.2d 773, 776 (Wyo. 1986) (stating summary judgment “is
a final judgment which denies parties the right to a trial before a jury of their
peers”).
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Wyoming brand inspector and a proper certificate of inspection or
clearance has been issued.
Wyo. Stat. § 11-20-203(a).
The statutes further provide that a person wishing to remove his cattle
across county lines must seasonably notify the brand inspector and cooperate with
the inspection:
Except as otherwise provided, before removing any livestock
from any county of Wyoming, the person selling or intending to
cause removal shall notify the inspector of the date of the intended
removal and the time and place when and where the required
inspection for brands and ownership can be made. The inspection
shall be made within a reasonable time prior to shipment. The person
in charge of the livestock shall hold the livestock at the place
designated until the livestock have been inspected and an official
certificate of inspection is issued. The person in charge shall render
the inspecting officer such assistance as is practicable while the
required inspection is being made.
Id. § 11-20-205(a).
One of the purposes of the brand inspection is to determine whether the
cattle to be removed across county lines contain any estrays. “Estrays, the
ownership of which is unknown, shall not be removed from the county except by
order of the inspector in accordance with W.S. 11-24-102.” Id. § 11-20-205(d).
An estray is defined as follows:
“Estray” means any animal found running at large upon public or
private lands, fenced or unfenced, in Wyoming whose owner is
unknown in the territory where found or the owner of which cannot
with reasonable diligence be found, or that is branded with two (2) or
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more brands the ownership of which is disputed, neither party
holding a bill of sale. An estray includes any animal for which there
is no sufficient proof of ownership found upon inspection[.]
Id. § 11-24-101(a)(ii) (emphasis added).
A person who comes into possession of an estray is required to notify a
brand inspector, who is to inspect and attempt to identify the animal:
When any person takes up an estray he shall immediately notify an
inspector who shall inspect or cause to be inspected the estray for
brands and other evidence of ownership and make a diligent effort to
learn or determine ownership of the animal. The inspector may cause
any estray to be held for not more than ten (10) days after the
inspection at a total expense of not more than fifty cents ($.50) per
day to enable him to complete his investigation of ownership. . . . If
the rightful owner cannot be found, or when found, refuses or fails to
pay the charges for feed and care of the estray, the inspector shall
order the estray sent to the most feasible convenient public market
designated by the inspector to be sold. Incurred charges for feed and
care by the inspector and reasonable shipping and sales expense shall
be paid from the proceeds of sale. The net proceeds, if any, received
from the sale of the estray after deduction of authorized expenses,
shall be forwarded to the estray fund of the board or its agency. The
board or agency shall hold the proceeds in a special fund known as
estray fund until paid to the rightful owner of the estray or otherwise
disposed of according to law.
Id. § 11-24-102(a).
Mr. Maher contends that he complied with these procedures by inspecting
Mr. Stanko’s cattle after Mr. Stanko notified him that the cattle would be moved
from Teton County. During the course of the inspection, he discovered cattle for
which Mr. Stanko did not provide adequate proof of ownership. He seized these
cattle and they were ultimately sold as estrays.
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Mr. Stanko responds that the cattle belonged to him, not to Fish Creek, and
the lack of a Fish Creek brand was therefore irrelevant. He states that the cattle
were not branded because he does not brand his cattle, believing that this reduces
their value. Assuming these facts are true, Mr. Stanko was still responsible for
providing sufficient proof of ownership upon inspection. Failure to do so meant
that the cattle were defined as estrays under Wyo. Stat. § 11-24-101(a)(ii).
Mr. Stanko contends, however, that the cattle could not have been “estrays”
because they were not running at large, he was taking care of them, and he was
known to be their owner. While an estray animal is generally one that has
escaped from its owner and is running at large, § 11-24-101(a)(ii) also defines as
an “estray” any animal for which there is insufficient proof of ownership upon
inspection. 6 Thus, the fact that the cattle were not “running at large” and that
Mr. Stanko was taking care of them is immaterial. Mr. Stanko’s claim that he was
“known” to be the owner is not relevant proof of that ownership in the form
required by statute.
6
The brand inspection statutes in a neighboring state contain a similar
provision that sheds light on the definition of “estray” animals in the Wyoming
Statute. The Colorado Statute states that if, while inspecting animals prior to
shipment, a brand inspector “finds any animals bearing marks and brands other
than those of the owner of the other cattle in such shipment” and if the owner or
shipper fails to provide proof of ownership, the brand inspector “shall forthwith
declare them to be estrays.” Colo. Rev. Stat. § 35-53-107 (emphasis added).
Thus, under both the Wyoming and Colorado statutes, an animal need not be
found running at large or uncared for to be considered an estray.
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The Wyoming Statutes specify the type of proof of ownership that is
acceptable upon brand inspection. The person in charge of the livestock may be
required to produce a “brand record, bill of sale or the affidavits of at least two
(2) responsible citizens of the county who are not interested financially in the
animals.” Id. § 11-20-205(c). Mr. Stanko has failed to establish that he provided
any of the required types of proof, in a form acceptable to the Livestock Board,
upon inspection.
Mr. Stanko also asserts that he did not intend to move the cattle from Teton
County in the Fall of 2003, and did not want them brand inspected. He contends
that because of this, the search was not consensual and Mr. Maher had no right to
be on his land. The uncontroverted evidence shows, however, that Mr. Maher
performed the inspection because he was requested to do so. In Mr. Maher’s
deposition, he stated that he went on the Sherr-Thoss property because he was
requested to do a brand inspection that day. R doc. 22, ex. “A” at 89. 7
A
7
Mr. Maher’s deposition transcript was attached to Mr. Stanko’s “Pre-trial
Brief in Support of Injunction and Petition for Declaratory Judgment. ” R. doc.
22. Both parties make reference to Mr. Maher’s deposition in support of their
factual allegations on appeal. Although the deposition was not, strictly speaking,
submitted as part of the summary judgment record, it was before the district court
prior to the entry of summary judgment and we therefore consider it part of the
record for purposes of summary judgment review. See Fed. R. Civ. P. 56(c)
(authorizing entry of summary judgment based on “pleadings, depositions,
answers to interrogatories, and admissions on file”) (emphasis added); cf. 10A
Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice &
(continued...)
-11-
memorandum of the Wyoming Livestock Board submitted by Mr. Stanko, and
uncontroverted by appropriate factual evidence, further notes that the estray cattle
“were taken out of the [Fish Creek] herd as legitimate estrays during the course of
arranged Brand Inspections as provided by law.” Id. , ex. “B.” (emphasis added).
Although Mr. Stanko argued in his pleadings that he did not intend to move
the seized cattle from Teton County, he did not specifically deny Mr. Maher’s
contention that he called for a brand inspection. Even Mr. Stanko’s vague claims
that he did not intend for the cattle to be moved and that Mr. Maher went on his
land without permission are supported by nothing but unverified evidence. Under
the admissible evidence in this case, see Fed. R. Civ. P. 56(e), it is undisputed
that Mr. Stanko, or someone acting on his behalf, requested an inspection of the
seized cattle.
Under the circumstances presented, the brand inspection statutes authorized
Mr. Maher to inspect the cattle. There was no Fourth Amendment violation. A
warrantless search of cattle about to be transported outside the county was
authorized by statute to protect the urgent state interest of preventing trafficking
7
(...continued)
Procedure § 2722, at 378 (3d ed. 1998) (stating “an affidavit submitted to support
another motion may be taken into account on a motion for summary judgment”);
McCullough Tool Co. v. Well Surveys, Inc., 395 F.2d 230, 236 n.7 (10th Cir.
1968) (“It is clear that a movant for summary judgment may rely upon affidavits
already in the record.”).
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in lost or stolen cattle. See, e.g., United States v. Biswell , 406 U.S. 311, 317
(1972) (authorizing warrantless regulatory searches). The undisputed evidence
shows that Mr. Stanko requested or consented to the search in order to be
permitted to move the cattle.
As for the seizure of the cattle, once they were inspected and Mr. Stanko
did not provide the required proof of ownership, Mr. Maher was authorized by
statute to seize them. Such a regulatory seizure, specifically authorized by
statutes designed to protect the urgent state interest of preventing trafficking in
lost or stolen cattle, did not require Mr. Maher to obtain a warrant. See id . We
conclude that Mr. Stanko has failed to demonstrate a Fourth Amendment
violation.
4. Alleged Fifth Amendment due process violation
“‘The fundamental requirement of due process is the opportunity to be
heard at a meaningful time and in a meaningful manner.’ Time and again, the
Supreme Court has made clear that ‘some form of hearing is required before an
individual is finally deprived of a property interest.’” Lawrence v. Reed , 406 F.3d
1224, 1233 (10th Cir. 2005) ( quoting Mathews v. Eldridge , 424 U.S. 319, 333
(1976)). Property interests entitled to protection are created not by the
Constitution, but rather by sources independent of it such as state law. See
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Copelin-Brown v. New Mexico State Personnel Office , 399 F.3d 1248, 1254
(10th Cir. 2005).
The owner of cattle or other livestock clearly has a property interest
protected by the Fifth and Fourteenth Amendments against its seizure and
disposition. See, e.g., Siebert v. Severino , 256 F.3d 648, 659-60 (7th Cir. 2001).
Notwithstanding the fact that Mr. Stanko was unable to substantiate his ownership
of the cattle to Mr. Maher’s satisfaction, he had a sufficient claim of property
interest to require due process protections against seizure and disposition of the
cattle. See, e.g., Wolfenbarger v. Williams , 774 F.2d 358, 362 (10th Cir. 1985)
(holding pawnbroker had interest in stolen property sufficient to warrant due
process protection).
Having determined that Mr. Stanko had a property interest in the cattle, we
must next address what sort of process he was entitled to in connection with their
seizure and sale. The Supreme Court has identified three factors that should be
considered in determining the specific dictates of due process:
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.
Matthews , 424 U.S. at 335.
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Applying these criteria, we determine that the procedure provided prior to
the seizure of cattle in this case (the “pre-deprivation process”) met due process
requirements. While Mr. Stanko had a substantial interest in maintaining his
rights to the seized cattle, see Siebert , 256 F.3d at 660, this interest was
adequately served by the procedures provided. The risk of erroneous deprivation
was low, because the statutes (1) limit the persons authorized to make a seizure to
licensed brand inspectors; (2) provide the person in charge of the cattle with an
opportunity to avoid a proposed seizure by submitting proof of ownership; and (3)
require that the inspection leading to seizure “shall be made by daylight in such
manner as to enable the inspecting officer to make a thorough and efficient
inspection.” Wyo. Stat. § 11-20-205(c). Additional procedural safeguards such
as further verification of ownership or more elaborate hearings prior to seizure
would run the risk of unnecessarily delaying the shipment of cattle. Finally, the
government’s interest is high, because the statutes are designed to prevent estray
cattle from being transported to another county and sold or disposed of there. See
Alfred v. Esser , 15 P.2d 714, 715 (Colo. 1932) (stating estray statutes are
“intended to protect the cattleman against loss of his cattle by wandering or
theft.”). In sum, the procedures employed prior to seizure here provided adequate
pre-deprivation process.
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The procedures provided after seizure and disposition also provided an
adequate post-deprivation remedy. First, we note that the statutes did not place
sole responsibility on Mr. Stanko to establish ownership after seizure, but
required the brand inspector to make a “diligent effort to learn or determine
ownership of the animal.” Wyo. Stat. § 11-24-102(a). Mr. Maher testified that he
and other inspectors fulfilled this duty by attempting to verify the ownership of
the seized cattle, traveling to Idaho to check out Mr. Stanko’s contention that he
had bought the cattle at a sale barn there. As provided by the statutes, Mr. Maher
caused the cattle to be held for five days while he completed his investigation.
See id. He also completed an Estray Livestock Report identifying the cattle that
had been seized.
Second, Mr. Stanko was provided with an opportunity to prove his
ownership of the cattle. When he failed to provide adequate proof of ownership,
the cattle were transported to a public market and sold, the proceeds held by the
Wyoming Livestock Board and made available to Mr. Stanko upon proof of
ownership. See id. These proceeds were to be held for a year to permit
Mr. Stanko to provide adequate proof that he was the owner of the cattle. Id. §
11-24-112. Mr. Stanko has failed to establish that the submissions he made to
prove ownership satisfied the requirements of the statutes, but his opportunity to
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do so certainly satisfied the requirements of due process. These procedures
provided adequate post-deprivation process. 8
5. Alleged Fifth Amendment just compensation violation
Mr. Stanko further claims that Mr. Maher took his property without
providing just compensation. His argument on this point is extremely cursory.
He cites the principle that private property may not be taken without just
compensation, then lists his own estimate of the valuation of the cattle, and states
that he “has not receive[d] one penny for his property from the State of
Wyoming.” Aplt. Opening Br. at 21. Mr. Stanko does not address the effect of
the Wyoming Statutes permitting him to provide proof of ownership, and to
receive the proceeds for the sale of the cattle. His argument lacks merit.
8
In support of his due process claim, Mr. Stanko cites Bowden v. Davis, 289
P.2d 1100 (Ore. 1955) (en banc), a case in which the Oregon Supreme Court
declared unconstitutional a much more draconian statute than that at issue here.
Bowden is easily distinguished from the facts in this case. In Bowden, the
relevant statute gave the owner of a horse found on public lands only two days to
pay a roundup charge or see his animal deemed abandoned and forfeited to the
state. Id. at 1103. No provision was made for payment to the owner of any
proceeds received from a forfeited horse. Id. at 1111. The defendants in Bowden
admitted that animals they had seized running at large on public lands were
owned by plaintiff. Id. at 1101. They nevertheless withheld the animals from
plaintiff, because plaintiff had failed to pay the applicable roundup charge. Id.
Here, by contrast, Mr. Stanko was given appropriate opportunities to provide
acceptable proof of ownership and thereby to recover the cattle or their proceeds,
but apparently failed to do so.
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6. Alleged violation of Art. I, § 7 of Wyoming constitution
Mr. Stanko argues that he has stated a claim under Article I, Section 7 of
the Wyoming Constitution, which provides that “Absolute, arbitrary power over
the lives, liberty and property of freemen exists nowhere in a republic, not even in
the largest majority.” He also argues that the Wyoming Constitution grants him
certain greater protections of “basic common law rights” than the United States
Constitution. Aplt. Opening Br. at 16. An action under § 1983, however, cannot
be maintained on the basis of alleged violations of state law. See, e.g., Rector v.
City & County of Denver , 348 F.3d 935, 947-48 (10th Cir. 2003). 9
We therefore
reject Mr. Stanko’s alleged state-law based claims for relief.
The judgment of the district court is AFFIRMED. The mandate shall issue
forthwith.
9
We further note that Mr. Stanko has failed to provide any independent
constitutional analysis based on the Wyoming Constitution, a prerequisite to
assertion of greater protections than those provided by the federal constitution.
See, e.g., Kenyon v. State, 96 P.3d 1016, 1021 n.5 (Wyo. 2004), cert. denied, 125
S. Ct. 1389 (2005).
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