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CHEYENNE — A recent Wyoming Supreme Court opinion in a fatal drunken driving lawsuit raised the issue of state law vs. municipal ordinance.

The case came before the state’s high court through a civil lawsuit filed by the representatives of the estates of Carol Ann and John Allan Munkberg.

Defendants in the lawsuit were Doug and Denny Freier, operators of Stockman’s Bar in Basin and the Smokehouse Saloon in Greybull.

The Munkbergs were killed in an auto accident caused by Randall LaBrie, according to law enforcement officials. LaBrie also died in the collision.

Before the accident, LaBrie became intoxicated as the result of drinking at both bars, the lawsuit stated. His inebriated condition was obvious, yet employees continued to serve LaBrie in both places, the suit said.

Big Horn County District Court Judge Steven Cranfill dismissed the lawsuit.

Decision upheld

The Supreme Court majority, in a 3-2 vote, upheld Cranfill’s decision.

The case boiled down to a judgment call between state law and municipal ordinance.

Wyoming’s dram shop liability law, adopted in 1985 and upheld by the Wyoming Supreme Court in 2003, gives bar operators who legally provide alcohol or malt beverages protection from liability for damages if the person served becomes intoxicated.

The town of Greybull adopted an ordinance that prohibits “excessive drinking of alcoholic and malt beverages.” The town of Basin has an ordinance which makes it unlawful for a saloon-keeper to “suffer any drunkenness” on their premises.

The Supreme Court majority said state law trumped the towns’ ordinances.

The majority opinion was written by Justice Barton Voigt, who was joined by Justices Michael Golden and James Burke.

The “home rule” issue came up in the dissent, written by Chief Justice Marilyn Kite, who was joined by Justice William Hill.

Kite wrote that the “home rule” constitutional amendment adopted by voters in 1972 gave municipalities the authority to determine their own affairs through ordinances that have the power of law and are subject only to state laws that uniformly apply to all cities and towns.

Self-government

The amendment also said these powers should be liberally construed to give the largest measure of self-government to cities and towns.

The majority ruled that the Legislature is best equipped to determine the state’s social and regulatory policy in the area of liquor provider liability. The lawmakers decided not to place upon the alcohol provider the duty of monitoring alcohol consumption of customers.

The municipalities may police the sale and consumption of alcoholic beverages to some extent, but “they may not by ordinance establish a negligence standard of care different from that chosen by the Legislature,” Voigt wrote.

In the dissent, Kite disagreed that the Legislature pre-empted the field and that municipalities can’t enact contrary laws.

The opinions highlight the differences a judicial tribunal can take when they look at “home rule,” said Mark Harris of the Wyoming Association of Municipalities.

In a sense, he said, not much has changed since the amendment was adopted nearly 40 years ago.

“It highlights how the ‘home rule’ provision is interpreted by different courts at different times, and even by the same court as this one, by different justices,” he said.

Harris said the Wyoming Association of Municipalities has no plans to seek changes in the law.

“It’s an interpretation issue and I don’t know how you fix that,” Harris said.

State Rep. Keith Gingery, R-Jackson, believes the Legislature should look at the issue of pre-empting municipalities.

He said he doesn’t want to explore the issue of dram shop liability at this point — not until there is some consensus on the subject.

Pat Crank, a Cheyenne attorney who represented the plaintiffs, said he hopes the Legislature looks at the dram shop law.

The tragedy of this case, he said, shows the need for change.

“This guy was horribly drunk and they continued to serve him,” Crank said.

The plaintiffs argued that the Wyoming Constitution prohibits special laws that give one type of business — such as liquor dealers — immunity from liability for damages if they over-serve a customer who gets drunk and injures or kills somebody.

“Unfortunately, three of the judges didn’t agree,” Crank said.

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