Prosecutors are now making a second challenge to a Circuit Court judge’s order that upholds a magistrate’s decision that state brand-inspection stops are unconstitutional without probable cause. That decision – a potential precedent – is leading law enforcement, judges and the public to question proper procedures for carrying and checking livestock permits between counties. Not to mention the judge’s assignment of the case to an unqualified part-time magistrate. On Jan. 6, Sublette County Deputy Attorney Stan Cannon filed a petition for a writ of review in 9th District Court. This follows the prosecution’s earlier motion of Dec. 17 asking Sublette County Circuit Court Judge Curt Haws to review and reverse Magistrate Clay Kainer’s ruling that a deputy’s stop of Rex F. Rammell to search his livestock trailer and request brand inspections were “unreasonable.” On Dec. 23, Judge Haws upheld Magistrate Kainer’s legal analysis and order as “sound and appropriate.” He canceled the Jan. 14 trial and transferred the motion and Rammell’s case to Albany County Circuit Court Judge Robert Castor. Judge Haws had recused himself and assigned Kainer to Rammell’s misdemeanor case. Rammell case Rock Springs veterinarian Rammell is charged with five violations of the state brand inspection law on June 27 when he trailered five horses from Sweetwater County to Sublette County without proper paperwork. Cannon is prosecuting the case; Rammell chose to represent himself. The case centers on Wyoming statutes 11-21-103(a) and 11-21-204 that give “any inspector, game warden or peace officer” authority to stop any vehicle carrying livestock, poultry or carcasses to examine the owner’s permit and the contents. In November, Magistrate Kainer heard arguments from Cannon and Rammell about whether or not the June 27 incident report relating the stop and search of the horse trailer should be suppressed as evidence. Kainer wrote that as a “regulatory stop” under the law, prosecution had to show Rammell’s vehicle was “commercial property, involved in a closely regulated industry whose operation poses a clear and significant risk to public welfare.” Without those conditions, the magistrate said the June 27 stop was unconstitutional and ordered the deputy’s report to be suppressed. In his Dec. 23 ruling, Judge Haws wrote, “The state failed in its burden to establish that law enforcement’s contact with Mr. Rammell complied with constitutional requirements.” Then court and county officials realized that Kainer was not properly appointed and approved as a part-time magistrate. Sublette County commissioners amended their Dec. 17 meeting agenda for a 3-2 vote. Judge Haws addressed commissioners before the vote, saying he too was unaware of the statutory terms to appoint full-time and part-time magistrates and their roles.District Court The prosecution’s petition for writ of review was inititally assigned to 9th District Judge Marv Tyler. It asks him or another District Court judge to reverse or modify Judge Haws’ order upholding the magistrate’s decision. It also questions if the state brand-inspection law requires “reasonable suspicion of a crime” and if “a regulatory stop is limited to some commercial purpose.” The prosecution argues that Wyoming’s agriculture is a “necessary and ‘closely regulated’ industry, … which includes the use of brands and branding irons that Wyoming … uses to regulate livestock, including horses.” It continues, “Certainly, by plain language of the statute the legislature intended that all livestock, including those horses owned for recreation or pleasure be subject to brand inspections.” On Thursday, Jan. 8, Judge Tyler reassigned the petition for writ of review to Fourth District Court Judge John G. Fenn of Sheridan County. Whose burden? The petition also asks if proving a state law’s constitutionality is the prosecution’s burden. “The state repeatedly asserted during the (evidence suppression) hearing that WS 11-21-103 on its face allows peace officers to stop livestock carriers without probable cause or reasonable suspicion and that the issue before the court was the constitutionality of the statute,” it says. The Wyoming Supreme Court has not yet addressed the state law’s constitutionality so there are no precedents, the petition says. Cannon cited numerous California Supreme Court decisions that have upheld warrantless or “suspicionless” searches and inspections, using the example of a game warden asking for hunting and fishing permits. “Upon conclusion of the (Rammell) suppression hearing it was clear and indisputable that (Rammell) did not believe the statute as written was constitutional, and his arguments during hearing did not deviate from this stance,” the petition says. “Based upon the court improperly shifting the burden from the defendant to the state regarding statutory constitutionality, (Magistrate Kainer’s) ‘Order Granting Defendant’s Motion to Suppress’ and (Judge Haws’) ‘Order Approving Magistrates Decision’ should be vacated.” Magistrate unqualified? It also asks the District Court to reverse, vacate, remand or modify the magistrate’s order, saying Kainer exceeded his authority. First, he was not properly appointed as a part-time magistrate and second, in that role he exceeded his authority to hear and rule on evidence, according to the petition. “The appointment is not a mere formality and to be taken seriously, and it is unfathomable that a magistrate, prior to assuming a judicial role, would neglect to read readily available and easily located statutes governing lawful appointment,” it states. On Dec. 23 Judge Haws defended Kainer’s authority, saying, “At all relevant times (he) and Magistrate Kainer acted in a good faith belief that the magistrate’s appointment was properly conducted.” The new petition compares Kainer’s acting as a magistrate before county approval to that of public officials’ wrong actions before they are qualified. Kainer served in the Sublette County Attorney’s Office before being elected for four years and then defeated by Mike Crosson. “Allowing an unqualified magistrate to escape consequence for serving without authority due to negligently failing to peruse a short statutory section directly related to the appointment and role of magistrates would undermine the public’s confidence in the judiciary and establish that judicial officers are above the law,” the petition says. “The appropriate remedy is to vacate all orders that were rendered in this matter by Clayton Kainer in his role as an unqualified parttime magistrate.” Sets precedent “The ruling of the Circuit Court has caused understandable and predictable confusion within the law enforcement community, both locally and statewide,” the petition says. “The Circuit Court’s order establishes precedent that probable cause and reasonable suspicion of a crime are necessary prior to conducting a stop under (WSS 11-21-103).” Also, citizens should expect those in judicial roles to be “duly appointed and qualified to serve” and to honor the Wyoming Constitution and state laws, the petition says. In the meantime, nothing more was filed this week related to the reassigned Circuit Court motion or the District Court petition.