source: Caselaw Access Project

author: Judge TAUBMAN.

license: Public Domain

text:
    Upon the Petition of BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ARAPAHOE, Colorado, Petitioner-Appellee, and Concerning Tracy Baker, Clerk and Recorder, Arapahoe County, and Leesa Sale, Assistant Deputy Clerk, Respondents-Appellants, and Denver Publishing Company, d/b/a Rocky Mountain News, a Colorado Corporation, Intervenor-Appellee.
    No. 03CA0074.
    Colorado Court of Appeals, Div. V.
    July 17, 2003.
    As Modified on Denial of Rehearing Oct. 23, 2003.
    Certiorari Granted July 26, 2004.

      Kathryn L. Schroeder, County Attorney, George Rosenberg, Assistant County Attorney, Ronald A. Carl, Assistant County Attorney, Littleton, Colorado, for Petitioner-Ap-pellee.
    Law Firm of Leonard M. Chesler, William P. Buckley, Denver, Colorado, for Respondent-Appellant Tracy Baker.
    Robert E. Goodwin & Associates, Robert E. Goodwin, Denver, Colorado, for Respondent-Appellant Leesa Sale.
    Baker & Hostetler, LLP, Marc D. Flink, Denver, Colorado, for Intervenor-Appellee.
   Opinion by

Judge TAUBMAN.

Respondents, Tracy Baker and Leesa Sale, appeal the judgment of the trial court requiring the release of 622 of their e-mails, including 570 sexually explicit or romantic e-mails, under the Colorado Open Records Act (CORA), § 24-72-101, et seq., C.R.S.2002. We reverse in part, vacate in part, and remand for further proceedings.

The facts underlying this controversy are undisputed. Arapahoe County is a political subdivision of the State of Colorado. Baker is the county’s elected clerk and recorder, and Sale is the clerk and recorder’s assistant chief deputy. Baker directly supervises Sale.

In 2002, the clerk and recorder’s former chief deputy made allegations against Baker of constructive discharge, sexual harassment-hostile work environment, violations of open meetings laws, violations of the Campaign Practices Act, and misuse of county-owned property and funds. In response, petitioner, the Board of County Commissioners of Arapahoe County, hired private investigator Rick Johnson to review these allegations, and he prepared a detailed report (Johnson Report).

The Johnson Report consists of a main report, attachments, and subreports, including a subreport entitled “Sexual Harassment/Hostile Work Environment Report.” Additionally, the Johnson Report includes the contents of 570 sexually explicit and romantic e-mails that Baker and Sale sent to one another.

The board released a redacted version of the Johnson Report in October 2002. The board then received written requests for inspection of public records from various media, including print and television. The requests for inspection asked for release of either the e-mails that were redacted from the publicly released report or the entire unredacted Johnson Report.

The board filed a petition for a judicial determination whether disclosure of the Johnson Report was prohibited under CORA. The Rocky Mountain News intervened in this action, seeking disclosure of the e-mails and the Johnson Report. After a hearing, the trial court ordered the release and public disclosure of the entire Johnson Report. The trial court’s order was stayed pending appeal.

On appeal, Baker and Sale challenge the trial court’s ruling relating to the e-mails and the “Sexual Harassment/Hostile Work Environment Report.”

I. Electronic Messages as Public Records under CORA

Baker and Sale contend that the trial court erred in ordering the disclosure of their email messages because they are not “public records” within the meaning of CORA. Rather, they maintain that the e-mails are private, personal, and confidential communications whose disclosure is prohibited by statute. We agree in part.

Baker and Sale do not challenge the underlying findings of fact by the trial court. Rather, they challenge the trial court’s legal conclusions, which we review de novo. Golden Lodge No. 13 v. Grand Lodge, 80 P.3d 857, 2003 WL 1089639 (Colo.App. No. 02CA0128, Mar. 13, 2003); see also Hartman v. Regents of Univ. of Colo., 22 P.3d 524, 529 (Colo.App.2000), aff'd sub nom. Middleton v. Hartman, 45 P.3d 721 (Colo.2002).

When construing statutes, a court’s primary purpose is to ascertain and give effect to the intent of the General Assembly. To determine intent, courts first look to the plain language of the statute and interpret statutory terms in light of their commonly accepted meanings. “If the words used are plain and unambiguous, our task is accomplished by giving effect to their commonly accepted meanings.” Bodelson v. City of Littleton, 36 P.3d 214, 216 (Colo.App.2001).

A.Public Records

Under CORA, Colorado’s public policy is “that all public records shall be open for inspection by any person at reasonable times, except as provided in this part 2 or as otherwise specifically provided by law.” Section 24-72-201, C.R.S.2002; see also § 24-72-203(l)(a), C.R.S.2002. However, the custodian of any public records may not allow the right of inspection to be exercised when such inspection would be contrary to state statute, federal statute, or regulation or would be prohibited by supreme court rules or by the order of any court. Section 24-72-204(1), C.R.S.2002. Further, CORA details many types of public records that are not subject to disclosure, including certain medical and mental health records and trade secrets. See § 24-72-204(3)(a), C.R.S.2002.

Here, Baker and Sale do not dispute that the e-mails are public records because CORA’s definition of “writings” expressly includes them. See § 24-72-202(6)(a)(I), (7), C.R.S.2002. It is also undisputed that the county maintains the'records.

B.Official Correspondence Exception

Baker and Sale contend, however, that the e-mails are not subject to public disclosure because they fall within the official correspondence exception under CORA. We disagree.

Subject to limited exceptions, there is a presumption in favor of disclosure of public records under CORA. See § 24-72-203(l)(a), C.R.S.2002; see also Int’l Bhd. Of Elec. Workers v. Denver Metro. Major League Baseball Stadium Dist., 880 P.2d 160, 165 (Colo.App.1994).

Section 24-72-202(6)(a) provides in pertinent part:

(II) “Public records” includes the correspondence of elected officials, except to the extent that such correspondence is:
(B) Without a demonstrable connection to the exercise of functions required or authorized by law or administrative rule and does not involve the receipt or expenditure of public funds....

(Emphasis added.) See also J.G. Colvin, II, E-mail, Open Meetings and Public Records, 25 Colo. Law. 99 (Oet.1996) (discussing, inter alia, 1996 amendments to CORA).

This exception to the correspondence provision contains two parts. Thus, to fall within the exception and not be subject to disclosure, the e-mails must lack a demonstrable connection to the exercise of functions required or authorized by law and not involve the expenditure of public funds. See § 24-72-202(6)(a)(II)(B), C.R.S.2002.

We need not address whether the e-mails have a demonstrable connection to the exercise of functions required or authorized by law because we conclude, for the reasons indicated below, that the e-mails involve the expenditure of public funds, and thus, are public records subject to disclosure under CORA.

First, Baker, an elected county official, and Sale, a county employee, are compensated by public funds. Baker and Sale sent many of the e-mails while they were working. An employee’s use of work time involves the expenditure of public funds:

Second, the e-mails were sent on the “Met-rocall” e-mail system purchased by the county for use by county employees. The county pays monthly fees to use this system. The use of this system to send sexually explicit emails or e-mails unrelated to county business is relevant to allegations that Baker misspent public funds, including improperly promoting and compensating Sale.

■Third, Baker and Sale used county-owned computers to send e-mails, to county-owned pagers over the Internet. The county expends public funds for the purchase, maintenance, and use of this equipment.

Finally, although the county’s e-mail and Internet policy contemplates some occasional use of e-mails for personal purposes, the volume of e-mails here exceeds any such occasional use.

C. Records of Sexual- Harassment Exception

Baker and' Sale also contend that the subreport entitled “Sexual Harassment/Hostile Work Environment” and the e-mails relating to • the employee who filed a hostile work environment complaint should not be disclosed under a CORA provision concerning records of sexual harassment. We agree in part.

An appellate court may affirm a judgment based on reasons different from those relied on by the trial court. Barham v. Scalia, 928 P.2d 1381, 1387 (Colo.App.1996).

Section 24-72-204(3)(a)(X)(A), C.R.S.2002, exempts from disclosure “any records of sexual harassment complaints and investigations.” However, an exception to this prohibition allows the disclosure of the result of an investigation of general employment policies and practices of an agency, to the extent disclosure can be made without disclosing the identity of the individuals involved. Section 24-72-204(3) (a) (X)(A).

Here, the trial court concluded that the record of sexual harassment exception does not apply to the “Sexual Harassment/Hostile Work Environment” subreport. The trial court characterized the subreport as concerning the former chief deputy clerk’s hostile work environment claim and primarily describing observations of Baker and Sale by various county employees. The trial court determined that this subreport was not a true sexual harassment report as contemplated by the statutory exemption. However, the trial court determined that this subreport was so intertwined with the rest of the Johnson Report that it, too, should be released.

Contrary to the trial court’s analysis, a hostile work environment is a type of sexual harassment. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).

Here, the plain language of the statute prohibits disclosure of the “Sexual Harassment/Hostile Work Environment” subreport as well as any e-mails, both in the Johnson Report and in its attachments, referring.to the employee who filed the hostile work environment complaint against Baker. See § 24-72-204(3)(a)(X)(A).

In contrast, we conclude that disclosure of the e-mails not related to county business and the other parts of the Johnson report was not prohibited by the sexual harassment exception to CORA. The Johnson Report was a general investigation of county employment policies because of allegations made against Baker. The investigation concerned reports of other employees being demoted, forced to resign, or intimidated into taking action in support of Baker. The Johnson Report also related to specific allegations against Baker by the former chief deputy clerk concerning constructive discharge, violations of open meetings laws, violations of the Campaign Practices Act, and misuse of county-owned property and funds.

The disclosure of e-mails not related to county business can be made without revealing the identities of other employees, as required by § 24-72-204(3)(a)(X)(A), for example, by redacting the names and initials of any individuals involved, except Baker and Sale. Because the public already is aware that sexually explicit e-mails were sent between Baker and Sale, limiting the disclosure of their identities would serve no practical purpose.

Therefore, we conclude the trial court erred in ordering the release of the “Sexual Harassment/Hostile Work Environment” su-breport and e-mails naming the employee involved.

To determine whether the e-mails not related to county business should be disclosed, we must consider the contentions of Baker and Sale regarding their constitutional right to privacy.

II. Constitutional Right to Privacy

Baker and Sale contend that the trial court erred in ordering disclosure of their e-mail messages and rejecting their claim that such disclosure violates their constitutional right to privacy. We agree in part.

A. Availability of Privacy Exception Under CORA

Initially, we reject the board’s contention that we should affirm the trial court’s ruling because there is no privacy exception under CORA.

The board maintains that unlike the federal Freedom of Information Act, 5 U.S.C. § 552 (2003), and open records acts of some other states, CORA does not contain a general exemption based on the right of privacy. The board thus asserts that because CORA specifies certain classes of public records that may not be disclosed because they are considered to be private, Baker and Sale may not raise a claim based upon their constitutional right to privacy. We disagree.

The board itself acknowledges that divisions of this court have considered the application of right to privacy claims in CORA eases. See Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150 (Colo.App.1998); Denver Post Corp. v. Univ. of Colo., 739 P.2d 874 (Colo.App.1987). However, the board contends that those cases are distinguishable because they concerned the “public interest” exemption under CORA. See § 24-72-204(6)(a). However, this is a distinction without a difference. A party may raise an argument based upon the constitutional right to privacy regardless of which section of CORA is at issue. Cf. CF & I Steel, L.P. v. Air Pollution Control Div., — P.3d --, 2003 WL 21026764 (Colo.App. No. 02CA0715, May 8, 2003)(steel company may seek to enjoin state agency from disclosing public records it alleges are not subject to disclosure under CORA confidential records exception).

Additionally, when CORA was amended in 1996 to encompass e-mail communications, the uncodified legislative declaration to the amendment acknowledged privacy concerns. It stated in part, “Electronic mail shares some features with telephonic communication, which generally is not stored in any form and is generally regarded as private,” and “[t]his act is intended to balance the privacy interests and practical limitations of public officials and employees with the public policy interests in access to government information.” Colo. Sess. Laws 1996, ch. 271, § 1 at 1479.

Accordingly, we reject the board’s contention that CORA has no privacy exception and therefore that Baker and Sale may not raise their constitutional privacy claims.

B. Martinelli Three-Prong Privacy Test

In Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980), the supreme court recognized that part of the constitutional right to privacy known as the “right to confidentiality.” See also T.B. Kelley & C.P. Beal, Developments in the Law of Privacy in Colorado, 31 Colo. Law. 9 (Mar.2002) (discussing Colorado appellate decisions concerning the right to privacy in tort context). This right encompasses the “power to control what we shall reveal about our intimate selves, to whom, and for what purpose,” but the court noted that it is not absolute. Rather, the court established a three-part balancing inquiry applicable to this aspect of the constitutional right to privacy. Those three prongs were stated as follows:

(1) does the party seeking to come within the protection of the right to confidentiality have a legitimate expectation that the materials or information will not be disclosed?
(2) is disclosure nonetheless required to serve a compelling state interest?
(3) if so, will the necessary disclosure occur in that manner which is least intrusive with respect to the right to confidentiality?

Martinelli v. Dist. Court, supra, 199 Colo. at 174, 612 P.2d at 1091; see also, Nixon v. Admr. of Gen. Servs., 433 U.S. 425, 465, 97 S.Ct. 2777, 2801, 53 L.Ed.2d 867 (1977)(public officials have legitimate expectation of privacy in their personal communications, but right to privacy must be weighed against government’s interest in disclosing the information).

We apply a de novo standard of review to the constitutional privacy claims of Baker and Sale. See Adkins v. Bd. of Educ., 982 F.2d 952 (6th Cir.1993); cf. Lewis v. Colo. Rockies Baseball Club, Ltd., 941 P.2d 266 (Colo.1997)(de novo standard of review applies when determining First Amendment status of government property; this is a mixed question of fact and law requiring independent review of the record).

Here, in applying the Martinelli test, the trial court concluded that Baker and Sale had no legitimate expectation that the e-mails at issue would not be disclosed and that disclosure was required to serve a compelling state interest. The trial court then ordered disclosure of the full contents of all the e-mails without applying the third prong of the Mar-tinelli test.

We agree in part with the trial court’s analysis with respect to the first two prongs of that test, but we conclude that the case must be remanded for, inter alia, application of the third prong.

1. Legitimate Expectation of Privacy

Baker and Sale contend they had a legitimate expectation of privacy because, although they recognized that the contents of their e-mails could be disclosed to the county, they had no basis to believe that the e-mails would be disseminated to the public. They further assert that the e-mails “simply do not contain the kind of governmental information that [CORA] was designed to make available to the public.” They also maintain that they had a legitimate expectation of privacy because they deleted some of the e-mails and the county had to retain the services of a computer expert to recover the text of their e-mail communications. Finally, Baker and Sale contend that all except 101 of the emails contain sexually explicit or passionate messages, and they are entitled to a greater expectation of privacy with respect to the contents of those e-mails. We agree in part.

Before discussing the applicability of Martinelli, we note that the county does not contend that Baker and Sale waived them right to privacy. Although the question of whether they waived their right to privacy may be related to whether Baker and Sale had a legitimate expectation of privacy, the waiver inquiry is complex, requiring consideration of factors such as (1) whether the purported waiver was knowing, intelligent, and voluntary, (2) whether it was express or implied, and (3) the scope of any waiver. See Veilleux v. Nat’l Broad. Co., 8 F.Supp.2d 23 (D.Me.1998)(although it is possible for the right of privacy to be waived or lost by a course of conduct, any such waiver must be knowing and voluntary); Jaillett v. Ga. Television Co., 238 Ga.App. 885, 520 S.E.2d 721 (1999)(although right of privacy may be waived, the effect of the waiver may not bring before the public those matters of a purely private nature that express law or public policy demands shall be kept private); Pohle v. Cheatham, 724 N.E.2d 655 (Ind.Ct.App.2000)(any waiver of an individual’s right to privacy justifies an invasion only to the extent warranted by the circumstances that brought about the waiver). Accordingly, we do not address whether a party may waive his or her constitutional right to privacy by signing an e-mail disclosure policy.

Under Martinelli, there are two factors to consider when determining whether a person has a legitimate expectation of nondisclosure. One factor is the person’s expectation of nondisclosure, and the other is the nature of the information sought to be disclosed. Martinelli v. Dist. Court, supra, 199 Colo. at 174, 612 P.2d at 1091.

Discussing the first prong of the balancing test, the MaHinelli court concluded that “the claimant must show that the material or information which he or she seeks to protect against disclosure is ‘highly personal and sensitive’ and that its disclosure would be offensive and objectionable to a reasonable person of ordinary sensibilities.” The MaHi-nelli court explained that those materials deserving the highest constitutional interest concern the intimate relationship of the claimant with other persons. See Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371, 377 (Colo.1997)(“facts related to an individual’s sexual relations ... are considered private in nature and the disclosure of such facts constitutes an invasion of the individual’s right of privacy,” citing Restatement (Second) of Torts § 652D cmt. b (1976)); see also Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)(sexual behavior is the most private human conduct). Material of this nature will be less likely to be subject to disclosure, especially when considered under the second and third prongs of the test.

In concluding that Baker and Sale did not have a reasonable expectation that their emails were not public records, the trial court did not address specifically how the nature of the information sought to be disclosed affected the expectations of nondisclosure of Baker and Sale.

The trial court made extensive findings relating to whether Baker and Sale had an “an actual or subjective expectation that the information ... not be disclosed.” See Martinelli v. Dist. Court, supra. The trial court found that, pursuant to CORA, the county is required to have an e-mail policy, that such policy must state that e-mails may be public records, that the county had such a policy, and that Baker and Sale signed statements acknowledging the existence of the policy.

Specifically, the trial court found that the county’s e-mail policy included provisions that: (1) e-mail is to be used for business purposes; (2) all e-mail messages are the property of Arapahoe County and are therefore not private; (3) the county reserves the right to monitor, review, and delete any email correspondence; (4) all e-mail users should be aware that, as with any electronic messaging, e-mail is not secure; (5) e-mail should never be used for confidential information; and (6) “all mail that travels over the Internet should be considered completely public and should never contain unprotected sensitive information.”

The court further found that both Baker and Sale signed acknowledgments recognizing that the county’s e-mail systems were to be used only for conducting county business and also, “that Arapahoe County reserves and will exercise the right to review, audit, intercept, delete, access, and disclose all matters on the county’s e-mail systems at any time” (emphasis added).

The trial court also found that the county’s Internet policy was applicable, particularly its provisions that those using the county-provided Internet access “should not assume they have any degree of anonymity,” and that the Internet access was not to be used for personal communications.

Based on these findings, the trial court concluded:

Baker and Sale were on notice that any person, at any time, could request copies of their e-mail and other correspondence, and that such records might have to be disclosed. As such, Baker and Sale could not realistically have had any confidence that their e-mails would not be public records, and could not have had a legitimate expectation that they would never be disclosed.

We agree with the trial court’s conclusion that Baker and Sale were on notice that their e-mails might have to be disclosed. That conclusion is supported by decisions of other courts in similar circumstances. See, e.g., United States v. Angevine, 281 F.3d 1130 (10th Cir.2002)(no expectation of privacy where computer was provided only for work-related purposes and employer reserved ownership of data); United States v. Simons, 206 F.3d 392 (4th Cir.2000)(where employer had policy to inspect and monitor Internet activity, employee had no expectation of privacy in files transferred from Internet); Garrity v. John Hancock Mut. Life Ins. Co., No. CIV.A. 00-12143-RWZ, 2002 WL 974676, at *2, 146 Lab. Cas. (CCH) ¶ 59,541, 18 Individual Emp. Rights Cas. (BNA) 981 (D.Mass. May 7, 2002)(no reasonable expectation of privacy in e-mail messages transmitted over the Internet that are at some point accessible by a third party); S.J. Dawes & S.E. Dallas, Privacy Issues in the Workplace for Public Employees-Part II, 26 Colo. Law. 85, 85 (May 1997)(“As a general rule, an employee has no reasonable expectation of privacy in email messages sent and received at work...S. DiLuzio, Workplace E-mail: It’s Not as Private as You Might Think, 25 Del. J. Corp. L. 741 (2000)(employees generally have no expectation of privacy in their workplace e-mail); but see People ex rel. Tooley v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 369 (Colo.1985)(constitu-tional right to privacy protects against unjustified governmental interference); S.A. Sundstrom, You’ve Got Mail! (and the Government Knows It): Applying the Fourth Amendment to Workplace E-mail Monitoring, 73 N.Y.U. L.Rev.2064 (Dec.l998)(argu-ing that the Fourth Amendment should limit the government’s ability to monitor e-mails of government employees).

However, we disagree with the trial court that Baker and Sale were on notice that any person at any time could request and receive copies of their e-mail communications. The trial court did not consider whether the e-mails at issue concerned highly personal and sensitive information whose disclosure would be offensive and objectionable to a person of ordinary sensibilities, as required by Martinelli. Here, it is undisputed that the sexually explicit e-mails concern such information, but approximately 100 email communications which are not sexually explicit would arguably not be entitled to the same degree of protection from disclosure.

Further, several other factors support the contention of Baker and Sale that they had at least a limited expectation of privacy in the e-mails they exchanged. First, the email policy provided that “messages not deleted by users will be automatically purged after 90 calendar days ... with no further possibility of retrieval.” Second, here, the county had to employ a computer expert using specialized computer software to retrieve deleted e-mails. Third, the policy recognizes that “some occasional use of e-mail for personal reasons is anticipated.” Finally, the policy states that notwithstanding the county’s right to retrieve e-mails, they should be treated as confidential by other employees and accessed only by the intended recipient.

Accordingly, we conclude that even though Baker and Sale did not have a reasonable expectation that their e-mails would not be disclosed at all, they still had a reasonable expectation under CORA that there would be more limited disclosure of at least their sexually explicit e-mails.

2. Compelling State Interest

Baker and Sale next argue that disclosure of the contents of their e-mails does not serve any compelling state interest, because the e-mails do not relate to the functioning of government and because they concern highly personal and sensitive information. We agree in part.

The trial court listed twelve reasons that disclosure of all the e-mails was of compelling interest to the public. First, they were sent by Baker to Sale to each other while they were working on county-owned equipment and through county-supplied services. Also, the e-mails were relevant to: (1) the reason Baker promoted Sale to the position of assistant chief deputy; (2) the reason Baker gave Sale substantial salary increases and overtime pay; (3) public allegations of hostile work environment; (4) public allegations of misuse of county funds by Baker and Sale; (5) allegations that Baker and Sale violated county Internet and e-mail policies; (6) the reason that Sale has not been terminated despite public allegations that she embezzled money from a former employer and she may have been less than honest on her employment application; (7) whether the public should support efforts to recall Baker from office; (8) the need for a publicly funded investigation by the board into Baker’s actions; (9) whether Baker is a liability risk to the county; (10) allegations that Baker and Sale were having an affair and to the question of when the affair began; and (11) whether Baker has been dishonest about the affair, which relates to his honesty and fitness for office.

In our view, there must be a close nexus between the particular asserted compelling interest to the public and the information sought to be disclosed. See Martinelli v. Dist. Court, supra, 199 Colo. at 175, 612 P.2d at 1092 (when compelling state interest mandates disclosure of otherwise protected materials or information, trial court nevertheless must ensure that disclosure occurs in a manner consistent with the state interest to be served, which will intrude least on the claimant’s right to confidentiality). Thus, for example, we must inquire whether disclosure of the e-mails would further a compelling state interest because they are relevant to allegations that Baker and Sale violated county Internet and e-mail policies (reason 5). Because it is conceded that these e-mails concern either romantic or sexually explicit matters, it follows that they were violative of the county Internet and email policies. However, this conclusion may be reached regardless of whether the contents of the e-mails are disclosed to the public. Thus, no compelling state interest would be achieved by disclosure of the contents of the e-mails on this basis.

Similarly, with respect to the asserted interest in whether the public should support efforts to recall Baker from office (reason 7), it is not clear that releasing the contents of the e-mails would make that case more persuasive than it might otherwise be after disclosure of the nature and volume of the emails. The same analysis applies to the first stated reason and numbered reasons 3, 4, and 8 through 11.

In this regard, our analysis is supported by Tiberino v. Spokane County, 103 Wash. App. 680, 13 P.3d 1104 (2000), upon which Baker and Sale rely. There, the court considered whether disclosure of 467 e-mails containing personal messages was appropriate under Washington’s version of CORA. Although the Tiberino court concluded that the e-mails were public records under the state statute, it applied a statutory exemption that prohibited disclosure based upon a right to privacy. That statutory right to privacy, similar to the right to privacy at issue here, would be violated only if disclosure of information about a person would be highly offensive to a reasonable person and not of legitimate concern to the public. In concluding that the content of those e-mails should not be disclosed, the Tiberino court stated:

The content of Ms. Tiberino’s e-mails is personal and is unrelated to governmental operations. Certainly, the public has an interest in seeing that public employees are not spending their time on the public payroll pursuing personal interests. But it is the amount of time spent on personal matters, not the content of personal emails or phone calls or conversations, that is of public interest. The fact that Ms. Tiberino sent 467 e-mails over a 40 working-day time frame is of significance in her termination action and the public has a legitimate interest in having that information. But what she said in those e-mails is of no public significance. The public has no legitimate concern requiring release of the e-mails and they should be exempt from disclosure.

Tiberino v. Spokane County, supra, 103 Wash.App. at 691, 13 P.3d at 1110.

In three respects, however, we conclude that disclosure of certain e-mails, in some form, may serve a compelling state interest. Such disclosure may help explain why Baker promoted Sale to her current position, why she received substantial increases in salary as well as overtime pay, and why she has not been terminated despite allegations she embezzled money (reasons 1, 2, and 6).

Except with respect to these three categories noted above, disclosure of the contents of the e-mails does not serve a compelling state interest, and the trial court erred in concluding otherwise.

3. Disclosure in Least Intrusive Manner

Baker and Sale contend that the trial court erred in not applying the third prong of the Martinelli test and not considering whether any disclosure should be made in the least intrusive manner possible. We agree.

Specifically, Baker and Sale urge that, under the third prong of the Martinelli test, no disclosure is appropriate. In contrast, the board argues that under the third prong, complete disclosure should result. The trial court must resolve this dispute on remand.

The trial court determined that Baker and Sale had no legitimate expectation of nondisclosure of their sexually explicit e-mails, regardless of their highly personal and sensitive nature. It also concluded that disclosure would serve a compelling state interest. For that reason, it undoubtedly concluded that it was unnecessary to apply the third prong of the Martinelli test.

Given our conclusions (a) that Baker and Sale had only a limited legitimate expectation of privacy, (b) that nevertheless, many of the e-mails are highly personal and sensitive, and (c) that there is a compelling state interest in three areas favoring disclosure of the e-mails, we further conclude that the ease must be remanded to the trial court to apply the third prong of the Martinelli test, except as to those e-mails not disclosable under the sexual harassment exception discussed in part 1(C) of this opinion and the 101 e-mails Baker and Sale effectively concede may be disclosed. Further, all other e-mails, or portions thereof, that concern work-related matters should be released, except to the extent they identify persons other than Baker and Sale involved in the sexual harassment claim. On remand, the trial court may consider whether the contents of other e-mails should only be disclosed in redacted or summary fashion.

The judgment of the trial court is affirmed to the extent it releases the 101 e-mails noted above and any other e-mails or portions thereof that concern work-related matters, except to the extent they identify persons other than Baker and Sale involved in the sexual harassment claim. The judgment is also affirmed as to ant e-mails relevant to Sale’s promotion, salary, overtime, and potential grounds for termination.

The judgment of the trial court is reversed to the extent it releases: (1) the sexual harassment-hostile work environment subre-port; (2) any e-mails concerning the allegations of the former chief deputy clerk and recorder relating to the sexual harassment/hostile work environment claim; (3) references in e-mails to the names of any employees involved in the sexual harassment-hostile work environment claim other than Baker and Sale; and (4) the contents of any e-mails not mentioned above, including the sexually explicit or romantic e-mails. In all other respects the judgment is vacated, and the case is remanded for application of the Martinelli test in a manner consistent with this opinion to determine whether and in what form the balance of the e-mails may be released or their contents disclosed.

Judge CASEBOLT and Judge NIETO concur.


author: VOIGT, Justice.

text:
    2004 WY 92
    In the Matter of the Worker’s Compensation Claim of Abel TORRES, Appellant (Employee/Claimant), v. STATE of Wyoming, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION, Appellee (Objector/Defendant) .
    No. 03-152.
    Supreme Court of Wyoming.
    Aug. 12, 2004.
    Representing Appellant: Mike Cornia, Ev-anston, Wyoming.
    Representing Appellee: Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; and Michael S. Hill, Assistant Attorney General, Cheyenne, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[¶ 1] An injured worker was denied worker’s compensation benefits because he was not “authorized to work by the United States department of justice,” as required by state statute. Wyo. Stat. Ann. § 27-14-102(a)(vii) (LexisNexis 2001). The district court affirmed the Wyoming Workers’ Safety and Compensation Division’s (the Division) denial of benefits and the worker appealed. We dismiss the appeal because the constitutionality of a statute may not be raised in the direct appeal of an administrative agency decision.

ISSUES

[¶ 2] The issues presented by the parties are as follows:

1. May the appellant challenge the constitutionality of Wyo. Stat. Ann. § 27-14-102(a)(vii) in an appeal of an administrative agency action?

2. Does Wyo. Stat. Ann. § 27-14-102(a)(vii) violate the equal protection guarantees of the Wyoming Constitution?

3. Does Wyo. Stat. Ann. § 27-14-102(a)(vii) violate the equal protection guarantees of the Fourteenth Amendment to the United States Constitution?

4. Does Wyo. Stat. Ann. § 27-14-102(a)(vii) violate the supremacy clause of the United States Constitution?

FACTS

[¶ 3] While employed by Sims Industrial Services as a semi-skilled laborer, Abel Torres (the appellant) suffered a work-related injury. The Division determined the injury to be compensable and approved temporary total disability payments. Subsequently, however, payments were discontinued when the Division learned that the social security number given by the appellant did not “match” his name and that he was not authorized to work in the United States. That determination was upheld after a hearing before the Office of Administrative Hearings. The hearing examiner concluded that the appellant was not an employee as defined by Wyoming statute, but reserved ruling on the constitutional issues raised by the appellant.

[¶4] The appellant filed a petition for review in the district court in which he challenged the constitutionality of Wyo. Stat. Ann. § 27-14-102(a)(vii), which states:

“Employee” means any person engaged in any extrahazardous employment under any appointment, contract of hire or apprenticeship, express or implied, oral or written, and includes legally employed minors and aliens authorized to work by the United States department of justice, immigration and naturalization service.

(Emphasis added.) The district court affirmed the decision of the Office of Administrative Hearings “for the reasons set forth in the Respondent’s Brief.” Unfortunately, the Respondent’s Brief is not contained in the record before this Court, leaving us to speculate as to what reasons were set forth therein.

DISCUSSION

[¶ 5] The hearing examiner reached two conclusions that formed the gist of his decision. First, citing V-1 Oil Co. v. State, 934 P.2d 740, 743 (Wyo.1997), the hearing examiner concluded that his office did not have the authority to rule on matters of constitutional law. Second, he concluded that the appellant was not an “employee” for purposes of the worker’s compensation statutes. We presume these conclusions are what the district court affirmed.

[¶ 6] We will dismiss this appeal because neither the district court nor this Court has the authority in an administrative agency appeal to address a petition for review regarding the constitutionality of a statute. Rather, the correct course is an independent action for declaratory judgment. In re Conflicting Lease Application for Wyoming Agr. Lease No. 1-7027, 972 P.2d 586, 586-88 (Wyo.1999). See also Frankel v. Board of County Com’rs of Teton County, Wyoming, 2002 WY 13, ¶ 9, 39 P.3d 420, 423 (Wyo.2002); Disciplinary Matter of Billings, 2001 WY 81, ¶ 41, 30 P.3d 557, 572 (Wyo. 2001); Dorr v. Wyoming Bd. of Certified Public Accountants, 2001 WY 37, ¶ 13, 21 P.3d 735, 742 (Wyo.2001); In re Worker’s Compensation Claim of Shryack, 3 P.3d 850, 856 (Wyo.2000); and In re Worker’s Compensation Claim of Keck, 985 P.2d 430, 433 (Wyo.1999).

[¶7] The appellant cites several Wyoming eases in which this Court considered, in an appeal of administrative agency action, the constitutionality of a statute. We note, however, that those cases either preceded our clear holding to the contrary in In re Conflicting Lease Application for Wyoming Agr. Lease No. 1-7027, or the question of whether the constitutional issue was appropriate was not directly raised, or both. At any rate, to the extent that the following cases may be read as being inconsistent with the rule espoused in the present case, they are overruled: In re Wright, 983 P.2d 1227, 1232 (Wyo.1999); In re Pohl, 980 P.2d 816, 819 (Wyo.1999); Gonzales v. Grass Valley Mobile Home Park, 933 P.2d 484, 487-88 (Wyo.1997); Frantz v. Campbell County Memorial Hosp., 932 P.2d 750, 752-54 (Wyo. 1997); Hays v. State ex rel. Wyoming Workers’ Compensation Div., 768 P.2d 11, 15-16 (Wyo.1989); Paravecchio v. Memorial Hosp. of Laramie County, 742 P.2d 1276, 1282-83 (Wyo.1987), cert. denied, 485 U.S. 915, 108 S.Ct. 1088, 99 L.Ed.2d 249 (1988); Baskin v. State ex rel. Worker’s Compensation Div., 722 P.2d 151, 155-56 (Wyo.1986); Armed Forces Co-op. Insuring Ass’n v. Department of Ins., 622 P.2d 1318, 1332-33 (Wyo.1980); Belco Petroleum Corp. v. State Bd. of Equalization, 587 P.2d 204, 214 (Wyo.1978).

[¶ 8] Wyo. Stat. Ann. § 16-3-114 (LexisNexis 2003) defines the limits of judicial review of administrative agency action. Johnson v. Schrader, 507 P.2d 814, 817 (Wyo.1973). W.R.A.P. 12 does not modify or repeal the statute, but implements it by adopting procedures for such judicial review. Bruegman v. Johnson Ranches, Inc., 520 P.2d 489, 491 (Wyo.1974); Johnson, 507 P.2d at 817. Administrative agencies have no authority to determine the constitutionality of a statute, and thus, on appeal of agency action, neither the district court nor this Court has jurisdiction to consider the issue. However, the right to pursue the constitutionality of the statute under which the agency acts is preserved in W.R.A.P. 12.12 via the declaratory judgment action. In re Conflicting Lease Application for Wyoming Agr. Lease No. 1-7027, 972 P.2d at 587.

[¶ 9] Appeal dismissed.

      . The appellant has admitted that he is an "illegal alien” and that he was using a "false” social security number.

      . See W.R.A.P. 12.12, which states:
      The relief, review, or redress available in suits for injunction against agency action or enforcement, in actions for recovery of money, in actions for a declaratory judgment based on agency action or inaction, in actions seeking any common law writ to compel, review or restrain agency action shall be available by independent action notwithstanding any petition for review.

      . We further note that In re Wright, 983 P.2d at 1232, and In re Pohl, 980 P.2d at 819, the only two listed cases that were decided after In re Conflicting Lease Application for Wyoming Agr. Lease No. 1-7027, are also distinguishable in that Wright involved an attempt to avoid waiver by transforming a procedural objection into a constitutional issue, and Pohl involved a question of subject matter jurisdiction, rather than the constitutionality of the statute underlying agency action.


author: VOIGT, Justice. HILL, Chief Justice,

text:
    2004 WY 93
    PAXTON RESOURCES, L.L.C., Appellant (Defendant), v. Dan M. “Buck” BRANNAMAN and Mary C. Brannaman, Appellees (Plaintiffs). Dan M. “Buck” Brannaman and Mary C. Brannaman, Appellants (Plaintiffs), v. Paxton Resources, L.L.C., Appellee (Defendant).
    Nos. 03-143, 03-144.
    Supreme Court of Wyoming.
    Aug. 12, 2004.
    Rehearing Denied Sept. 8, 2004.

      Representing Paxton Resources, L.L.C.: Kevin D. Huber, Richard Day and P. Craig Silva of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.
    Representing Dan M. “Buck” Brannaman and Mary C. Brannaman: Jay A. Gilbertz and Michael K. Davis of Yonkee & Toner, LLP, Sheridan, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[¶ 1] Dan M. “Buck” Brannaman and Mary C. Brannaman (the Brannamans) sued a coalbed methane gas developer, Paxton Resources, L.L.C. (Paxton), for damages to their real property and for lost income. The complaint stated causes of action for breach of contract, breach of the duty of good faith and fair dealing, trespass and negligence, and sought a declaratory judgment and punitive damages. A jury awarded the Branna-mans compensatory damages of $810,887.00 for Paxton’s breach of contract and breach of the duty of good faith and fair dealing. Pax-ton appealed the judgment and the district court’s denial of its W.R.C.P. 50 and 59 motions for judgment as a matter of law, for new trial, and for remittitur. The Branna-mans appealed the district court’s dismissal of their trespass and punitive damages claims.

[¶ 2] We dismiss the appeal and cross appeal because they were not timely filed.

ISSUES

1. Should this appeal be dismissed because it was not timely filed?

2. Did the district court err in refusing to give to the jury Paxton’s proposed damages instruction?

3. Did the district court abuse its discretion by refusing to allow Paxton’s expert witness to testify at trial?

4. Was there sufficient evidence to support the jury’s finding that Paxton breached the contract?

5. Did the district court abuse its discretion by denying Paxton’s motion for remitti-tur?

6. Did the district court abuse its discretion by denying Paxton’s motion for a new trial?

FACTS

[¶ 3] The relevant facts are those having to do with the chronology of procedural events after the jury trial:

February 7, 2003 Jury verdict
February 25, 2003 Post-trial motions filed
February 26, 2003 Judgment entered
March 31, 2003 Order setting hearing entered
June 9, 2003 Hearing on post-trial motions
June 27, 2003 Order denying post-trial motions entered
July 3, 2003 Paxton’s notice of appeal filed
July 11, 2003 Brannamans’ conditional notice of appeal filed

DISCUSSION

[¶ 4] The interplay of several court rules dictates the outcome of this case. To begin with, W.R.A.P. 2.01(a) provides that “[a]n appeal from a trial court to an appellate court shall be taken by filing the notice of appeal with the clerk of the trial court within 30 days from entry of the appealable or-der_” Subsection (a)(2) of the same section goes on to provide that “[i]f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 15 days of the date on which the first notice of appeal was filed.” Of particular significance to the present case is the exception to these time limitations found in W.R.A.P. 2.02:

(a) The running of the time for appeal in a civil case is tolled as to all parties by the timely filing of a motion for judgment un- • der Rule 50(b), Wyo. R. Civ. P.; a motion to amend or make additional findings of fact under Rule 52(b), Wyo. R. Civ. P., whether or not alteration of the judgment would be required if the motion is granted; a motion to alter or amend the judgment under Rule 59, Wyo. R. Civ. P., or a motion for a new trial under Rule 59, Wyo. R. Civ. P.
(b) The full time for appeal commences to run and is to be computed from the entry of any order granting or denying a motion for judgment; a motion to amend or make additional findings of fact; or a motion to alter or amend the judgment, or denying a motion for a new trial. If no order is entered, the full time for appeal commences to run when any such motion is deemed denied.

(Emphasis added.)

[¶ 5] W.R.C.P. 6(c)(2) governs the district court’s hearing of such motions:

A request for hearing may be served by the moving party or any party affected by the motion within 30 days after service of the motion. Absent a timely request for hearing the court may, in its discretion, determine the motion without a hearing. A motion not determined within 90 days after ftliny shall be deemed denied. A party whose motion has been deemed denied shall have 10 days after the effective date of such denial to serve such pleadings or other papers, if any, as may be required or permitted.

(Emphasis added.) And finally, the Wyoming Rules of Appellate Procedure spell out the consequences of an appeal being filed “too early” or “too late.” Under W.R.A.P. 2.04, “[a] notice of appeal filed prematurely shall be treated as though filed on the same day as entry of the appealable order....” On the other hand, W.R.A.P. 1.03 specifies that “[t]he timely filing of a notice of appeal ... is jurisdictional.”

[¶ 6] The following sequence of events sets the stage for our inquiry: the motions were filed, judgment was entered, the order setting the motions for hearing was entered, the ninety-day “deemed denied” date passed, the hearing was held, the thirty-day appeal deadline after the “deemed denied” date passed, the order denying the motions was entered, the notice of appeal was filed. There is no dispute that the appeal was filed more than thirty days after the “deemed denied” date. The sole question is whether the district court’s entry of the setting order during the ninety-day period acted to toll the time for appeal or acted as a determination of the motions.

[¶7] Wyoming’s case law in this area must be read in the context of the rules in effect at the time. In Brasel & Sims Const. Co. v. Neuman Transit Co., 378 P.2d 501, 502-03 (Wyo.1963), this Court denied a motion to dismiss the appeal where the appellee argued that the notice of appeal had not been filed within the time required by former W.R.C.P. 59(f) (1966), which provided as follows:

Motions for new trial and motions to alter or amend a judgment shall be determined within sixty days after the entry of the judgment, and if not so determined shall be deemed denied, unless within such sixty days the determination is continued by order of the court or by stipulation.

[¶ 8] Clearly, the rule as then incarnated provided methods for the parties and the district court to delay determination of such motions beyond the “deemed denied” date. In Brasel & Sims Const. Co., we concluded that the district court and the parties had proceeded as if the court’s order, issued at a party’s request, extending the time for determination of the motion apparently was to be effective “until the matter was resolved by the trial court.” Id. at 503. We further opined, however, that “a lack of clarity of Rule 59(f), Wyoming Rules of Civil Procedure, might well be contended because there is no provision as to what occurs after the continuance therein provided.” Id.

[¶ 9] In McMullen v. McMullen, 559 P.2d 37, 38 (Wyo.1977), under the same version of the court rule, this Court dismissed an appeal as untimely because it had not been filed within thirty days after a motion for mistrial was deemed denied, and no extension of time for the motion’s determination had been ordered by the district court or stipulated to by the parties. A similar result obtained in Johnson v. Hauffe, 567 P.2d 735, 736 (Wyo.1977), where we further held that “entry of a written order denying Rule 59 motions after they have been deemed denied does not extend the time for appeal[.]”

[¶ 10] In 1978, W.R.C.P. 59(f) was amended to read as follows:

Motions for new trial and motions to alter or amend a judgment shall be determined within 60 days after the entry of the judgment, and if not so determined shall be deemed denied, unless within such 60 days the determination is continued by order of the court, but a continuance shall not extend the time to a day more than 90 days from the date of entry of judgment.

This new version of the rule was applied in Blake v. Rupe, 651 P.2d 1096 (Wyo.1982), cert. denied, 459 U.S. 1208, 103 S.Ct. 1199, 75 L.Ed.2d 442 (1983). In Blake, the district court clerk, during the sixty-day period, issued a notice setting the post-trial motions for hearing on a date outside the sixty-day period, but within the ninety-day period. Id. at 1111-12. The hearing was held, no party objected to the lack of a formal order of continuance, and the district court, also within the ninety-day period, issued an order denying the motions. Id. In a 3-2 split, the majority of this Court held that the parties and the district court treated the notice of setting as if it were an order of extension under W.R.C.P. 59(f), and thus, the appeal was timely. Blake, 651 P.2d at 1113. In separate dissents, Justice Thomas and Chief Justice Rose decried the use of a “legal fiction” to salvage an untimely appeal. Id. at 1121-22, 1122-29. We relied upon and expanded the holding of Blake in Martinez v. City of Cheyenne, 791 P.2d 949, 955-56 (Wyo. 1990), rev’d on other grounds by Beaulieu v. Florquist, 2004 WY 31, 86 P.3d 863 (Wyo.2004), where we held that a telephone call from the district judge’s secretary vacating a motion hearing setting, later sanctified by an order nunc pro tunc, was sufficient to act as an order of the court under W.R.C.P. 59(f), where the district court and the parties treated it as such.

[¶ 11] Long ago, we identified the purpose behind the “deemed denied” concept:

Statutes of this kind in substance have been enacted in a number of States of the Union, and, without undertaking to be exhaustive, we may mention the commonwealths of Montana, California, Oregon, Wisconsin, Arizona, Alabama and Colorado. The enactment of such laws is evidently with the idea of expediting court business and preventing trial judges from keeping motions for new trial under advisement for an unreasonable length of time. Statutes of this character have generally been held to be mandatory.

Board of Com’rs of Natrona County v. Casper Nat. Bank, 55 Wyo. 144, 96 P.2d 564, 566 (1939). Undoubtedly, it is the desire to achieve this purpose that has caused periodic amendment of the rule. Initially, the period for determination of a motion for new trial could be continued by court order or stipulation of the parties, and there was no apparent limit to that continuance. The 1978 amendment added motions to alter or amend a judgment, thereby extending application of the “deemed denied” concept, deleted the provision for continuance by stipulation, and limited any continuance to ninety days after entry of the judgment. The present version of the rule, now found at W.R.C.P. 6(c)(2), in combination with W.R.A.P. 2.02, both of which are set forth in full hereinabove, covers motions for judgment, motions to amend or make additional findings of fact, motions to alter or amend a judgment, and motions for new trial, once again broadening the application of the “deemed denied” principle. Further, the present rule sets the “deemed denied” date at ninety days after filing of the motion and contains no provision for continuance, which indicates a firm commitment to the rule’s purpose of preventing delay in the determination of post-trial motions.

[¶ 12] This is the context in which we must evaluate the legal effect of the post-trial events in the present case. Paxton contends that its motions were never deemed denied because, as in Brasel & Sims Const. Co., Blake, and Martinez, the parties and the district court treated the order setting the hearing as a continuance. Second, Paxton contends that, by not objecting to the setting date, the Brannamans waived their “deemed denied” argument. And third, Paxton contends that the order of setting satisfies W.R.A.P. 2.02’s provision that the time for appeal commences to run when a motion is deemed denied only if “no order is entered .... ”

[¶ 13] We find these contentions unpersuasive. To begin with, the present version of the “deemed denied” rule does not allow for continuances, making Brasel & Sims Const. Co., Blake, and Martinez irrelevant in that respect. Furthermore, while the right to object to a continuance under the former rules could be waived without affecting subject matter jurisdiction, the same is not true under the present rule, where there is no continuance provision. In other words, under the former versions of the rule, the time for filing an appeal could be tolled by stipulation of the parties or by court order. If such a continuance occurred because the movant’s opponent did not object, the appeal remained timely, and subject matter jurisdiction was not offended. That process no longer exists.

[¶ 14] Paxton’s final argument — that the order of setting was an order that was entered within the meaning of the last sentence of W.R.A.P. 2.02(b) — simply defies the sense and purpose of the rule. The previous sentence of W.R.A.P. 2.02(b) specifies orders granting or denying the subject motions. Clearly, it is these orders to which the second sentence refers. Otherwise — if any order would suffice — the rule’s purpose would be thwarted; the motion might never be heard or decided, yet neither the “deemed denied” period nor the time for appeal would ever begin. Such an interpretation would also fly directly in the face of the specific wording of the “deemed denied” provision; that is, a motion is deemed denied if is not determined within the specified time. Something is “determined” within the meaning of the law when a final decision has been made by the court. Black’s Law Dictionary 480 (8th ed.2004). The word “determine” means “to decide, to adjudicate, to come to a decision, to decide upon an investigation, to perform a judicial act.” Swift v. Smith, 119 Colo. 126, 201 P.2d 609, 614 (1948).

[¶ 15] As we stated earlier herein, the timely filing of a notice of appeal is jurisdictional. W.R.A.P. 1.03. We have steadfastedly held to that principle, and to the concomitant principle that dismissal must befall an untimely appeal. TPJ v. State, 2003 WY 49, ¶ 13, 66 P.3d 710, 713 (Wyo.2003); Cosco v. Uphoff, 2003 WY 30, ¶ 4, 66 P.3d 702, 703 (Wyo.), cert. denied, — U.S.-, 124 S.Ct. 121, 157 L.Ed.2d 84 (2003); Harding v. Glatter, 2002 WY 124, ¶ 10, 53 P.3d 538, 540 (Wyo.2002); Tusshani v. Allsop, 1 P.3d 1263, 1265 (Wyo.2000); Miller v. Murdock, 788 P.2d 614, 616 (Wyo.1990); Wiens v. American Motors Corp., 717 P.2d 322, 323 (Wyo.1986); State v. Berger, 600 P.2d 708, 709 (Wyo.1979); Johnson, 567 P.2d at 736; McMullen, 559 P.2d at 38; Jackson v. State, 547 P.2d 1203, 1205 (Wyo.1976).

[¶ 16] Court rules have the force and effect of law and are construed in the same manner as statutes. Vanasse v. Ramsay, 847 P.2d 993, 999 (Wyo.1993) (quoting Lapp v. City of Worland, 612 P.2d 868, 874-75 (Wyo.1980)). Compliance with court rules is mandatory. Matter of Estate of Obra, 749 P.2d 272, 275 (Wyo.1988); Greenwood v. Wierdsma, 741 P.2d 1079, 1084 (Wyo.1987) (quoting Hickey v. Burnett, 707 P.2d 741, 745 (Wyo.1985)). In particular,

“[T]he error of the trial judge in entertaining the motions could not be validated by the acquiescence of the [other party]. It is elementary that the parties cannot confer jurisdiction on the court.
We have said that untimely motions * * * for new trial are of no legal significance whatsoever because the limiting language of Rule 6(b) is ‘mandatory and jurisdictional and [can]not be extended regardless of excuse.’ ... In my view we should abide by these rules or amend them, rather than emasculate them.
Rules of procedure are a necessary part of an orderly system of justice. Their efficacy, however, depends upon the willingness of courts to enforce them according to their terms.”

Miller, 788 P.2d at 616-17 (quoting Thompson v. Immigration and Naturalization Service, 375 U.S. 384, 389, 84 S.Ct. 397, 400, 11 L.Ed.2d 404, 407 (1964) (Clark, J. dissenting)).

[¶ 17] In other states with similar rules, courts are not hesitant to dismiss appeals rendered untimely by a “deemed denied” provision. See, for example, Bombardier Capital, Inc. v. Williams, 850 So.2d 363, 364 (Ala.Civ.App.2002); Freiberg v. City of Mission Viejo, 33 Cal.App.4th 1484, 39 Cal. Rptr.2d 802, 805 (1995); Barker Phillips, Inc. v. Caviness, 603 S.W.2d 715, 715 (Mo.App.1980); Beneficial Finance Corp. v. Morris, 120 N.M. 228, 900 P.2d 977, 978 (1995); and Minor v. Leisure Lodge, Inc., 154 Or.App. 301, 961 P.2d 915, 916-17 (1998). While such may seem harsh, it must be remembered that litigants may protect themselves against dismissal for late filing by filing “prematurely,” a practice authorized by W.R.A.P. 2.04. Furthermore, “ ‘[t)he first and fundamental question on every appeal is that of jurisdiction; this question cannot be waived; it is open for consideration by the reviewing court whenever it is raised by any party, or it may be raised by the court of its own motion.’ ” Wyoming Community College Com’n v. Casper Community College Dist., 2001 WY 86, ¶ 12, 31 P.3d 1242, 1247-48 (Wyo.2001) (quoting Hirschfield v. Board of County Com’rs of County of Teton, 944 P.2d 1139, 1141 (Wyo.1997)). The timeliness of an appeal being jurisdictional, we cannot simply enforce or ignore the rule as we choose.

CONCLUSION

[¶ 18] The whole point of a “deemed denied” provision is that the judgment automatically becomes final and ap-pealable upon passage of the specified period. Sun Land & Cattle Co. v. Brown, 387 P.2d 1004, 1006 (Wyo.1964). Therefore, an appeal that is not filed within thirty days after the post-trial motions are deemed denied is untimely. In the present case, the motions were deemed denied before the district court heard and purported to determine them. The judgment had become final and appeal-able at the time the motions were deemed denied and the district court no longer had jurisdiction to determine the motions. Indeed, the district court’s order denying the motions was entered one day after the thirty days allowed for appeal under W.R.A.P. 2.01.

[¶ 19] This appeal is untimely and is, therefore, dismissed, as is the Brannamans’ conditional appeal.

HILL, Chief Justice,

specially concurring.

[¶ 20] The application of W.R.C.P. 6(e)(2) in these circumstances is, without a doubt, harsh and predecessors of that rule have had similarly harsh impacts on litigants in the past. There are precedents from which we might have tailored a less unforgiving imperative than that set out in the majority opinion. See, e.g., Blake v. Rupe, 651 P,2d 1096, 1115 (Wyo.1982). ' However, it does appear that that was the clear intent of the authors of the most recent version of the “deemed denied” rule, and practitioners could discern that. As written, the rule makes no mention of a continuance, whether in written form or as it might be gleaned from tacit material.

[¶ 21] I concur with the result reached by the majority opinion because adoption of a “tacit” exception to the deemed denied rule would result in the same old uncertainty that used to exist. I take some solace from the harshness of this result in my conviction that, having carefully reviewed the merits of all issues raised by Paxton, this Justice would have held for Brannaman in this appeal in any event.

      . Wyoming's "deemed denied” rule was originally enacted as a statute:
      Motions for new trial shall be determined within sixty days after the rendition of judgment, and if not so determined shall be deemed denied, unless continued by order of the court, or by stipulation.
      Wyo. Sess. Laws ch. 112 at 158 (1935).

      . In Oregon, where a court rule requires similar post-trial motions to be " 'heard and determined by the court within 55 days from the time of the entry of the judgment,' ” a motion is not determined until actual entry in the trial court register of a written order disposing of the motion. Ryerse v. Haddock, 185 Or.App. 679, 60 P.3d 1107, 1109-10 (2003) (quoting ORCP 64 F); Matter of Marriage of Conley, 97 Or.App. 134, 776 P.2d 860, 861 (1989). The court in Matter of Marriage of Conley explained that, if a motion was determined by a mere verbal decision from the bench, the “deemed denied” provision would never come into effect, even if there was a failure to enter the final decisional order, thereby defeating the purpose of the rule. Matter of Marriage of Conley, 776 P.2d at 861.

      . The post-trial motions were filed on February 25, 2003, and were deemed denied on May 27, 2003. The thirty-day appeal period ended on June 26, 2003, and the denial order was entered on June 27, 2003.


author: GOLDEN, Justice.

text:
    2004 WY 95
    James Allen MORGAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-263.
    Supreme Court of Wyoming.
    Aug. 13, 2004.

      Representing Appellant: Ken M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel. Argument by Mr. Roden.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Assistant Attorney General. Argument by Mr. Fetsco.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[¶ 1] Appellant James Allen Morgan entered a conditional plea of guilty to two counts of possession of marijuana. He reserved his right to appeal the district court’s denial of his motion to suppress the evidence seized during, and as the result of, the search of his disabled vehicle. Specifically, Morgan complains that a drug dog sniff of the exterior of the vehicle was an illegal search under the Fourth Amendment to the United States Constitution and Article 1, Section 4 of the Wyoming Constitution. He also claims the State failed to establish the reliability of the canine. This Court concludes that the canine sniff was not a search under the Fourth Amendment to the United States Constitution and that Morgan did not present a sufficient state constitutional analysis. We further hold that Morgan did not properly preserve his right to contest the State’s failure to establish the reliability of the drug dog. Consequently, we affirm.

ISSUES

[¶ 2] Morgan articulates two issues on appeal:

I. Whether the district court erred in denying appellant’s motion for suppression of all evidence discovered by and because of the drug dog’s initial sniff of appellant’s broken down vehicle?
II. Whether the State failed to establish that the drug dog use[d] by Patrolman Peech was reliable?

Appellee State of Wyoming phrases the issues a little differently:

I. Did the district court properly deny appellant’s motion to suppress evidence?
II. Was the State required to establish that the drug dog was reliable, and was such claim preserved by appellant’s conditional guilty plea?

FACTS

[¶ 3] On November 18, 2001, Morgan and Daniel Fisher were traveling northbound on Interstate 25 in Laramie County. Their vehicle experienced mechanical difficulties, and they pulled to the side of the road. Highway Patrolman Benjamin Peech proceeded to the scene after receiving a call concerning the disabled vehicle. Morgan and Fisher identified themselves to the patrolman and asked him to take them to a nearby truck stop.

[¶4] Patrolman Peech thought he recalled Morgan’s name from a prior drug intelligence report. Consequently, after he left the men at the truck stop, he asked dispatch to run criminal history checks on them. The criminal history checks revealed that Morgan had a prior drug conviction. Patrolman Peech requested that a canine unit from the Laramie County Sheriffs Department meet him at the disabled vehicle. Deputy Sheriff Rivers commanded his drug dog to sniff around the exterior of the vehicle, and the drug dog alerted.

[¶ 5] Patrolman Peech returned to the truck stop to visit with Morgan and Fisher, while Deputy River and the dog remained with the vehicle. A third officer, Deputy Camery, joined Patrolman Peech at the truck stop. The officers located Morgan and Fisher in the coffee shop, and Patrolman Peech asked Morgan to accompany him outside. The patrolman informed Morgan that he thought he recalled his name from a drug intelligence report and that the drug dog had alerted to the vehicle. Morgan denied that there were any controlled substances in the vehicle. Patrolman Peech then spoke with Fisher. Fisher admitted that there was a small amount of marijuana and a marijuana pipe in the vehicle. He also consented to a search of his person, during which Patrolman Peech discovered a small amount of methamphetamine in his wallet.

[¶ 6] Morgan and Fisher agreed to accompany the officers back to the disabled vehicle. Morgan rode with Deputy Camery, and Fisher rode with Patrolman Peech. During the trip, Fisher again admitted that there were drug paraphernalia and small amounts of controlled substances in the vehicle. When they arrived at the vehicle, Patrolman Peech asked Morgan for the keys, and he complied. Patrolman Peech unlocked the doors, and Deputy Rivers directed the dog to enter the vehicle. The dog alerted to a red and black duffle bag which belonged to Morgan. The patrolman searched the bag and discovered a plastic bag containing eight ounces of marijuana.

[¶ 7] The State charged Morgan with one count of possession of marijuana with intent to deliver, in violation of Wyo. Stat. Ann. § 35 — 7—1031 (a)(ii), and one count of possession of more than three ounces of marijuana, in violation of § 35 — 7—1031(c) (iii). Morgan filed a motion to suppress the evidence gathered during the search of his person, the vehicle, and his luggage. He argued that the canine sniff of the exterior of his vehicle amounted to a search, which was not justified by probable cause or a reasonable articulable suspicion of criminal -conduct. The district court held a hearing and denied Morgan’s motion to suppress.

[¶ 8] Morgan and the State entered into a plea agreement in which Morgan conditionally pled guilty to the felony charge of possession of more than three ounces of marijuana and a misdemeanor charge of possession of marijuana. Morgan reserved' his right to appeal the district court’s denial of his motion to suppress. The district court sentenced Morgan to serve a suspended sentence of three to five years in prison for the felony and sixty days in county jail for the misdemeanor. Morgan filed a timely notice of appeal.

DISCUSSION

A. Standard of Review

[¶ 9] Our standard for reviewing a district court’s decision on a motion to suppress has been stated as follows:

Findings on factual issues made by the district court considering a motion to suppress are not disturbed on appeal unless they are clearly erroneous. Wilson v. State, 874 P.2d 215, 218 (Wyo.1994). Since the district court conducts the hearing on the motion to suppress and has the opportunity to asséss the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions, evidence is viewed in the light most favorable to the district court’s determination. Id. The issue of law, whether an unreasonable search or seizure has occurred in violation of constitutional rights, is reviewed de novo. Id.; Brown v. State, 944 P.2d 1168, 1170-71 (Wyo.1997).

McChesney v. State, 988 P.2d 1071, 1074 (Wyo.1999); see also Damato v. State, 2003 WY 13, ¶ 7, 64 P.3d 700, ¶7 (Wyo.2003); Meadows v. State, 2003 WY 37, ¶ 14, 65 P.3d 33, ¶ 14 (Wyo.2003).

B. Dog Sniff

[¶ 10] Morgan argues that the canine’s sniff of the exterior of his vehicle amounted to a search under the Fourth Amendment to the United States Constitution. He claims, therefore, that the officer should have had probable cause or, at- least, a reasonable articulable suspicion of criminal conduct before he ordered the canine sniff. The State maintains that the canine sniff was not a search entitled to Fourth Amendment protection.

[¶ 11] Although this Court has earlier decided cases involving canine sniffs, see e.g., Damato; Putnam v. State, 995 P.2d 632 (Wyo.2000); State v. Welch, 873 P.2d 601 (Wyo.1994), this is the first case which squarely presents the issue'whether or not a canine sniff of the exterior of a vehicle amounts to a search. In Damato and Welch, the appellants complained that they had been illegally seized after traffic stops when the authorities made them wait for a dog to conduct a sniff test of their automobiles. Damato, ¶ 15; Welch, 873 P.2d at 605. There was no discussion, in either case, of whether or not a canine sniff amounts to a search. Id. In Putnam, we rhetorically broached the issue of the propriety of a dog sniff, but ultimately concluded that the appellant did not have standing to contest the search of the vehicle. 995 P.2d at 639. In the case at bar, Morgan was not detained while the canine sniff took place, and he has standing to contest the search of the vehicle. Consequently, the question of whether or not a canine sniff around the exterior of a vehicle amounts to a constitutionally protected search is directly at issue in this case.

[¶ 12] The Fourth Amendment to the United States Constitution protects “[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. The beginning point for our analysis of an issue involving the. Fourth Amendment to the United States Constitution is, of course, the United States Supreme Court. In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), Place argued that he was subjected to an illegal search and seizure under the Fourth Amendment when law enforcement authorities detained his luggage for ninety minutes in a public airport. During the detention of his luggage, the authorities had a trained narcotics dog sniff the luggage. Id. at 699, 103 S.Ct. at 2640. The Court ruled that the authorities’ seizure of Place’s luggage violated the Fourth Amendment. Id. at 710, 103 S.Ct. at 2646. Nevertheless, in the course of reaching that decision, the United States Supreme Court opined that a canine sniff of luggage in an airport was not a search within the meaning of the Fourth Amendment. Id. at 706-07, 103 S.Ct. at 2644-45. The High Court reasoned:

The Fourth Amendment protects people from unreasonable government intrusions into their legitimate expectations of privacy. We hiave affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. A “canine search” by a well-trained detention dog, however does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.
In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here — exposure of the respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a “search” within the meaning of the Fourth Amendment.

Id. (citations and quotation marks omitted).

[¶ 13] Just a year later, the United States Supreme Court reiterated its position that investigative techniques which are limited to determining the presence or absence of illegal items are not searches within the purview of the Fourth Amendment. In United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the Court concluded that a field test to determine whether cocaine was present did not infringe upon a reasonable expectation of privacy. Id. at 122-24, 104 S.Ct. at 1661-62. Thus, the Supreme Court has clearly stated that when a test reveals only the absence or presence of contraband items, it is not a search because it does not intrude upon a legitimate privacy interest. Id:; Place, 462 U.S. at 706-07, 103 S.Ct. at 2644. See also, United States v. Morales-Zamora, 914 F.2d 200, 204-05 (10th Cir. 1990); United States v. Colyer, 878 F.2d 469, 476-77 (D.C.Cir.1989).

[¶ 14] Many commentators and legal scholars have criticized or questioned the Supreme Court’s statement in Place that the dog sniff of the luggage was not a search. See, e.g., Hope Walker Hall, Sniffing out the Fourth Amendment: United States v. Place — Dog Sniffs — Ten Years Later, 46 Me. L.Rev. 151, 152 (1994); 1 Wayne L. Lafave, Search and Seizure § 2.2(f) (3d. ed.1996). They have called upon federal courts of appeal to dismiss the conclusion as dictum. Id. Nevertheless, federal circuit courts, including Wyoming’s own Tenth Circuit Court of Appeals, continued to rely upon and follow the Place ruling. See, e.g., United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir. 1998); United States v. Ludung, 10 F.3d 1523, 1527 (10th Cir.1993); Morales-Zamora, 914 F.2d at 203-04.

[¶ 15] The Supreme Court finally put to rest the confusion over this issue when it reaffirmed that a canine sniff is not a search in City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 453, 148 L.Ed.2d 333 (2000). In Edmond, the Supreme Court specifically held that a drug dog sniff of stopped cars at a drug interdiction checkpoint did not amount to a search. Id. The Court stated:

The fact that officers walk a nareoties-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search. Just as in Place, an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics. Like the dog sniff in Place, a sniff by a dog that simply walks around a car is much less intrusive than a typical search.

Id. (citations and quotation marks omitted).

[¶ 16] Despite the Supreme Court’s clear language in Edmond, Morgan argues that Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), undermines the Place decision and supports his argument that the canine sniff of his vehicle amounted to an unconstitutional search. In Kyllo, a law enforcement agent suspected that Kyllo was growing marijuana in his home. Id. at 29, 121 S.Ct. at 2041. High-intensity lamps are typically required in order to grow marijuana indoors. Id. The agent, therefore, used a thermal imager to scan Kyllo’s home to determine whether unusual amounts of infrared radiation were emitting from the home. Id. at 29-30, 121 S.Ct. at 2041. The scan was performed from outside of the home and revealed that the roof over the garage and a side wall of the home were “relatively hot compared to the rest of the home and substantially warmer than neighboring homes_” Id. at 30, 121 S.Ct. at 2041. Based on the results of the scan and other information, the agent procured a search warrant to physically search the home. Id.

[¶ 17] Kyllo appealed the denial of his motion to suppress the evidence on the basis that the thermal imaging scan amounted to an illegal search of his home. The United States Supreme Court concluded that the thermal imaging scan was a search. Id. at 34-35, 121 S.Ct. at 2043. The Supreme Court reasoned:

We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman [v. United States ], 365 U.S. [505] at 512, [81 S.Ct. 679, 5 L.Ed.2d 734 (1961),] constitutes a search — at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.

533 U.S. at 34, 121 S.Ct. at 2043.

[¶ 18] The Kyllo decision does not undermine the validity of Place or Edmond or mandate a finding that the canine sniff of the exterior of Morgan’s vehicle was a search. The differences between a thermal imaging scan of a person’s home and a canine sniff of the exterior of an automobile are apparent. A person’s home is sacrosanct in Fourth Amendment jurisprudence. “ ‘At the very core’ of the Fourth Amendment ‘stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ” Kyllo, 533 U.S. at 31,121 S.Ct. at 2041 (quoting Silverman, 365 U.S. at 511, 81 S.Ct. at 683). Although an automobile is entitled to limited Fourth Amendment protection, the Supreme Court has repeatedly recognized there is a reduced expectation of privacy with motor vehicles. See, e.g., Edmond, 531 U.S. at 40, 121 S.Ct. at 453; Florida v. White, 526 U.S. 559, 563-64, 119 S.Ct. 1555, 1558, 143 L.Ed.2d 748 (1999); California v. Carney, 471 U.S. 386, 390-93, 105 S.Ct. 2066, 2068-70, 85 L.Ed.2d 406 (1985); Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). Moreover, the United States Supreme Court emphasized in Place and Edmond that a canine sniff is limited to the determination of the existence or nonexistence of contraband. Place, 462 U.S. at 707, 103 S.Ct. at 2644-45; Edmond, 531 U.S. at 40.121 S.Ct. at 453. In contrast, the thermal imaging scan in Kyllo revealed the presence or absence of infrared radiation, which is not, in and of itself, illegal. Federal law, therefore, clearly holds that Fourth Amendment protections do not extend to canine sniffs of the exterior of an automobile. We conclude, therefore, that Morgan was not subjected to a search protected by the Fourth Amendment when Patrolman Peech ordered the canine sniff of his vehicle.

[¶ 19] Morgan also argues that Article 1, Section 4, of the Wyoming Constitution provides greater protection than the federal constitution. Article 1, Section 4, states:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized.

Relying on decisions from other states, Morgan insists that, under our state Constitution, a canine sniff is a search, subject to constitutional protection. It is true that some states have interpreted their state constitutions as providing broader protections than those guaranteed by the Fourth Amendment. See, e.g., Commonwealth v. Rogers, — Pa.-, 849 A.2d 1185, 1190 (2004); State v. Tackitt, 315 Mont. 59, 67 P.3d 295, 300 (2003); Commonwealth v. Martin, 534 Pa. 136, 626 A.2d 556, 559-60 (1993); State v. Pellicci, 133 N.H. 523, 580 A.2d 710, 715 (1990); People v. Dunn, 77 N.Y.2d 19, 563 N.Y.S.2d 388, 564 N.E.2d 1054, 1057 (1990); Pooley v. State, 705 P.2d 1293, 1311 (Alaska Ct.App.1985). Those states have ruled that canine sniffs are included within the category of searches protected by their state constitutions. Id.

[¶ 20] While this Court is certainly open to an argument that Article 1, Section 4, of the Wyoming Constitution provides greater protection against unreasonable searches than the Fourth Amendment, Morgan did not present a sufficient state constitutional analysis to persuade us to consider that issue in this case. We have repeatedly directed that, in order for this Court to undertake an independent state constitutional analysis, the appellant must “use a precise and analytically sound approach and provide us with the proper arguments and briefs to ensure the future growth of this important area of law.” Saldana v. State, 846 P.2d 604, 624 (Wyo.1993) (Golden, J., concurring). See also, Gronski v. State, 910 P.2d 561, 565-66 (Wyo. 1996); Dworkin v. LFP, Inc., 839 P.2d 903, 909 (Wyo.1992).

[¶ 21] In this case, Morgan simply relies on the decisions of other states in arguing for a broad interpretation of Wyoming’s constitutional protections against unreasonable searches and seizures. That method does not satisfy our specific requirements. Therefore, we reserve, for another time, the question of whether Article 1, Section 4 of our state Constitution provides greater protection from warrantless canine sniffs than the Fourth Amendment.

C. Reliability of Drug Dog

[¶22] In his second issue, Morgan argues that the drug dog alert was not probable cause to justify a warrantless search of his vehicle because the State did not establish that the dog was reliable. The State argues that Morgan failed to preserve this issue when he entered his conditional plea of guilty in the district court.

[¶23] In general, when a criminal defendant enters a plea of guilty to a charge, he waives appellate review of all non-jurisdictional issues. Bailey v. State, 12 P.3d 173, 177 (Wyo.2000); Smith v. State, 871 P.2d 186, 188 (Wyo.1994). “An exception to this rule can be found in W.R.Cr.P. 11(a)(2), which allows a defendant to plead guilty while reserving the right to seek review on appeal of any specified pretrial motion.” Bailey, 12 P.3d at 177. W.R.Cr.P. 11(a)(2) states:

(2) Conditional Pleas.—With the approval of the court and the consent of the attorney for the state, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to seek review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.

[¶ 24] In Bailey, we ruled that a conditional plea of guilty does not provide carte blanche permission for the appellant to present any and all arguments on appeal. 12 P.3d at 177-78. Instead, the appellant may only raise those issues on appeal which were clearly called to the attention of the district court. Id.; see also, Elder v. Jones, 608 P.2d 654, 660 (Wyo.1980). In other words, “[w]e will not consider non-jurisdictional issues on appeal unless they have been raised before the lower court with at least a minimum effort to present a cogent legal argument.” Bailey, 12 P.3d at 178.

[¶25] Morgan’s motion to suppress and his argument at the suppression hearing focused exclusively on whether or not the dog sniff was a search. He did not address the probable cause issue and did not challenge the State’s failure to establish foundation for the reliability of the dog. Under W.R.Cr.P. 11(a)(2) and the teachings of Bailey, when Morgan pled guilty, he only preserved the issues raised in his suppression motion. Consequently, because Morgan did not contest the reliability of the drug dog or raise the probable cause issue in the district court, he waived his right to make those arguments on appeal.

CONCLUSION

[If 26] The district court properly concluded that a dog sniff is not a search under the Fourth Amendment to the United States Constitution. We will not consider, in this case, whether Article 1, Section 4 of the Wyoming Constitution should be interpreted as including a dog sniff within its definition of unreasonable searches because Morgan failed to present a sufficient state constitutional analysis. Finally, Morgan waived his right to contest the State’s reliance on the dog’s alert as establishing probable cause for the physical search when he failed to present that issue to the district court.

[¶ 27] Affirmed.