Clements v. Board of Trustees of Sheridan Cty. , 1978 Wyo. LEXIS 230 ( 1978 )

THOMAS, Justice,

concurring, with whom RAPER, Justice, joins.

I concur in the result reached by the Court in this case. I am concerned about an apparent construction of § 21-4-305(e), W.S.1977, which makes the application of its provisions dependent upon whether the student actually was punished under the laws of the state. I believe that construction to be too narrow. If correct, it broadens the possibility of a delegation or transfer of the public prosecution function from the prosecutor and the court system to the school board. Such action would be improper and unwarranted, but there could be situations in which criminal charges would not be filed on the assumption that punishment for the same conduct would be forthcoming in the form of suspension or expulsion from the school. Conversely, under more recent concepts of double jeopardy prompt action by the school board might be asserted as a bar to further prosecution under state law. That result would be even less satisfactory. If the statute applies whenever the grounds asserted by the school board for suspension or expulsion also describe an offense potentially punishable under state law, and not only those which are actually punished, then the school authorities are on notice to proceed with caution and to at least confer with the public prosecutor. Further, there would be no temptation to trade off statutory punishment for school discipline.

In resolving this case I would conclude that the provisions of § 21 — 4-305(e), W.S. 1977, are not applicable because I can find no offense described in the laws of the state which matches the conduct for which the school board disciplined Clements. Alternatively, the justification of the Court’s conclusion relative to the absence of double jeopardy resolves this issue as well because we hold that the Board did not suspend Clements for the purpose of punishment, and that even though the suspension has punitive effects a claim of double jeopardy is without merit. It follows that the discipline imposed by the School Board was not “additional punishment” under § 21-4— 305(e), W.S.1977.