Karl Allred v. Eli D. Bebout, et al.

[¶1] Two Wyoming citizens sought to challenge legislation that authorized two

construction projects while maintaining a degree of legislative control which the citizens

contend violate the Wyoming Constitution. They also alleged a pattern of letting state

contracts without competitive bidding or required safeguards, contrary to the Wyoming

Constitution and laws. They sought to amend their complaint to add a third plaintiff who

would have alleged economic harm resulting from the contracting practices. The district

court found that the citizens lacked standing, and that adding the third plaintiff would be

futile. Appellants ask us to reverse that determination, which requires us to consider once

again the challenging question of standing in cases where matters of great public interest

are alleged.

[¶2] At this Court’s request, the parties also briefed the question of whether the statute

enacted in 2017, which prohibits naming a legislator in a lawsuit if he or she is sued in an

official capacity, violates the Wyoming Constitution. We will affirm the district court’s

decision, finding that the citizens lack standing, and because there is no justiciable

controversy, we will not address the constitutionality of the “naming statute.”

ISSUES

[¶3] Because the parties’ issue statements illustrate their radically different views, we

will restate them in full here.

[¶4] Appellants define the issues as:

(A) Where government officials have violated separation

of powers, have effected an alteration of the structure of

government without undertaking the constitutional

amendment process, and have violated the procurement and

anti-corruption provisions of the Wyoming Constitution and

Wyoming statutes, do citizens and taxpayers have standing to

contest violations of the Wyoming Constitution and

Wyoming statutes by government officials?

(B) Did the district court err in not applying the “great

public importance doctrine” where the doctrine is applied to

constitutional cases in Wyoming and where this case

indisputably involves constitutional questions of great public

importance?

(C) Do Wyoming citizens and taxpayers have standing to

contest violations of the Wyoming Constitution and statutes

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by government officials in the areas of separation of powers,

alterations of the constitution without utilization of the

constitutional amendment process, and competitive bidding

and spending provisions of the Wyoming Constitution and

Wyoming statutes?

(D) Did the district court err in not allowing the joinder of

a person who had been ousted from state contracting by

governmental officials who have refused to comply with

constitutional and statutory competitive bidding mandates?

(E) Does Senate Enrolled Act 70 (2017) (Wyo. Stat. § 1-

35-109) violate Article 2, Section 1 (separation of powers) of

the Wyoming Constitution in purporting to prescribe whether

a legislator can be sued in his or her name?

[¶5] The State defines the issues differently:

I. For a court to have jurisdiction over a declaratory

judgment action, the facts alleged in the complaint must

establish that the plaintiff satisfies each element of the

four part Brimmer v. Thomson justiciability test. The

facts alleged in their amended complaint show that Karl

Allred and Gerald Gay do not satisfy any of the elements

of the Brimmer test. Does their amended complaint

present a justiciable controversy?

II. In a declaratory judgment action, the justiciability

requirement may be relaxed if the plaintiff presents a

matter of great pubic interest or importance, provided he

alleges facts to show that he has suffered harm to a

tangible interest and he will benefit from a court

judgment. The facts alleged here show that Allred and

Gay do not satisfy the tangible interest and practical

benefit elements. Does the great public interest or

importance doctrine apply here?

III. In its sound discretion, a district court may deny a

motion to amend a complaint if the proposed

amendment would be futile. Allred and Gay filed a

motion to amend their amended complaint to add

Benjamin Hornok as a plaintiff. The district court

denied the motion because Hornok lacked standing and

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had not exhausted the available administrative remedies.

Did the district court abuse its discretion by denying the

motion to amend?

IV. For civil actions not involving the State of Wyoming,

the judicial branch has authority to regulate court

practice and procedure and the Wyoming Legislature

has authority to regulate the substantive rights of

persons. The Legislature enacted Wyoming Statutes

§ 1-35-109 to address who is the proper party in civil

actions involving a challenge to an official legislative

act. Does § 1-35-109 violate the separation of powers

provision in the Wyoming Constitution?

FACTS

[¶6] Appellants, Karl Allred, “on behalf of himself and the citizens of Wyoming,” and

Representative Gerald Gay, “in his representative capacity,” filed the complaint and

amended complaint in this matter. Because this is an appeal of an order granting a

motion to dismiss, we review the facts as alleged in the amended complaint. Mr. Allred

and Mr. Gay attempted to add Benjamin J. Hornok later, in the form of a motion to

amend the complaint to add a party, which the district court denied primarily because it

would be futile, reasoning that Mr. Hornok also lacked standing and had failed to exhaust

his administrative remedies.

I. Allegations in the amended complaint

A. The Parties

[¶7] Mr. Allred is identified as “a citizen of Wyoming and an individual residing in

Uinta County, Wyoming.” He brought the action “on behalf of himself in his capacity as

a citizen of Wyoming and on behalf of the citizens of Wyoming.” Mr. Gay was, at the

time the amended complaint was filed, “the duly elected representative of House District

36 from Natrona County and [] a member of the House of Representatives of the

Wyoming Legislature,” who brought this action “in his representative capacity.” They

sued Governor Matt Mead, Wyoming Attorney General Peter Michael, and legislative

members of the Capitol Square Oversight Group at the time: Senate President, Philip

Nicholas; House Speaker, Kermit Brown; Senate Majority Floor Leader, Eli Bebout;

Senate Minority Floor Leader, Chris Rothfuss; House Majority Floor Leader, Rosie

Berger; House Minority Floor Leader, Mary Throne; Senate President selected member,

Senator Tony Ross; and House Speaker selected member, Representative Tim Stubson.

They also named as defendants members of the Department of Health Facilities Task

Force at the time: senate co-chair, Senator Eli Bebout; senate member, Senator Dan

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Dockstader; senate member, Senator Drew Perkins; house co-chair, Representative Loyd

Larsen; house member, Representative Bob Nicholas; and house member, Representative

Tim Stubson. All the defendants are sued in their official capacities.

[¶8] The amended complaint alleges that each defendant is responsible for ensuring

compliance with the Wyoming Constitution, and each was responsible for enacting the

challenged laws, and has the statutory authority to implement those laws. It further

alleges that each defendant has been involved in the implementation of the challenged

statutes, and “through their oversight function has engaged [sic] violations of the

Wyoming Constitution and procurement statutes . . . .”

B. Leases and Contracts

[¶9] The amended complaint makes the following allegations regarding specific leases

and contracts:

1. Lease for Housing Legislature During the Capitol Renovation

[¶10] The Department of Administration and Information Construction Management

Division entered into a lease with Pershing Circle, LLC for the building known as the

Jonah Business Center, where the legislature is housed during the Capitol renovation.

Pershing Circle, LLC’s managing partner is Neil A. McMurry, who “made one of the

largest contributions [to Governor Mead] in a political campaign outside of the candidate

or immediate family of the candidate in Wyoming history . . . .” The lease was entered

into without competitive bidding and was not approved by the State Treasurer.

2. Lease for 2020 Carey Avenue

[¶11] The lease to house the Wyoming State Treasurer, Wyoming State Auditor, and

Wyoming Secretary of State during the Capitol construction was entered into without

competitive bidding and was not approved by the State Treasurer. The State entered into

contracts with various contractors who did work on the space to prepare it for occupancy,

without competitive bidding and without approval by the State Treasurer. The amount of

the contracts related to the 2020 Carey lease as of the date of the amended complaint was

$2,748,303.67. Wayne Voss, the signatory for the lease, made a $1,000 contribution to

Governor Mead’s campaign.

3. 516 South Greeley Highway Shopping Center Lease

[¶12] Other state agencies are being housed at 516 South Greeley Highway pursuant to a

lease that was entered into without competitive bidding, and without the State Treasurer’s

approval. Lessor Maurice Brown contributed $1,000 to Governor Mead’s campaign.

5

4. Bidding of JE Dunn Contract

[¶13] Pre-construction services were competitively bid, but the actual construction

activities by JE Dunn and several amendments which significantly increased the

construction cost limitation and expanded the scope of work were not competitively bid.

5. Prestige Corporate Relocation LLC Contract

[¶14] The Department of Administration and Information contracted with Prestige

Corporate Relocation LLC to move the Department of Environmental Quality from the

Herschler Building. The State Treasurer did not approve the contract. As a result of

miscalculations, the State overpaid the moving company. This work was put out for bid,

but the State justified a bid waiver because of non-response to the request for proposal.

[¶15] The amended complaint alleges a pattern of contracting by the State without

competitive bidding, asserting that 80 percent “of all contracting managed by the

Department of Administration and Information Procurement Division for the State of

Wyoming is not done by competitive bidding but rather through sole source contracting,”

representing $620,000,000 in expenditures in the current biennium.

[¶16] Finally, the amended complaint asserts that the Department of Health Facilities

Task Force, which is comprised of six legislators and two members of the executive

branch, entrusts to the legislative branch various executive branch functions, such as

implementing recommendations on the design of Department of Health Facilities,

procuring design studies, supervising design studies, and evaluating options for

management and ownership of the Wyoming Retirement Center.

[¶17] Plaintiff/Appellant Gerald Gay requested that the Wyoming Legislature call upon

the Attorney General to investigate these improprieties; that request was rejected. He

then asked the Attorney General directly to conduct an investigation; the Attorney

General did not respond to that request. Appellants clearly state that they do not

seek to set aside any contract(s). Rather, this Complaint

seeks a ruling as to the constitutionality of the statute,

potential violations of the Wyoming Constitution and

procurement statutes in the implementation of the statutes,

and of the proper administration of government.

C. Count I – Separation of Powers

1. The Capitol Square Project

[¶18] In the 2014 session, the Wyoming Legislature enacted

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AN ACT relating to administration of government; providing

for the rehabilitation and restoration of the capitol building

and the remodeling and construction of other state properties;

codifying and continuing a task force; specifying process and

duties relating to specified capital construction projects;

providing for reports; transferring unexpended appropriations

and making other appropriations; providing for interfund

borrowing and repayment of borrowed funds; amending,

conforming or repealing related provisions; authorizing

positions; and providing for an effective date.

2014 Wyo. Sess. Laws, ch. 40, § 1. The law, codified at Wyo. Stat. Ann. §§ 9-5-110

through 9-5-113, created an oversight group comprised of the Governor and persons

filling identified legislative positions (Capitol Square Oversight Group), § 9-5-111(a). It

authorized the renovation of the Herschler Building and the Capitol and associated

purchases, and arrangements for temporary accommodations during the pendency of the

work, with all plans subject to approval of the Capitol Square Oversight Group. § 9-5-

112(a)-(f).1 The amended complaint alleges that, by giving this power to the Capitol

Square Oversight Group, the legislation gives control of the “Capitol Square Project to

the legislative members of the Capitol Square Oversight Group,” and the named

defendant legislators “have departed from their constitutionally prescribed and limited

role and have usurped and taken control over executive branch functions in violation of

Article 2, Section 1 of the Wyoming Constitution and separation of powers doctrine.” It

requests a declaration that the Capitol Square Project legislation violates the separation of

powers provision of the Wyoming Constitution.

2. The Department of Health Facilities Task Force

[¶19] In the 2016 legislative session, the legislature created the Department of Health

Facilities Task Force, comprised of six legislators and two members of the executive

branch appointed by the Governor. 2016 Wyo. Sess. Laws, ch. 97, § 4(b). The Task

Force was charged with:

(i) Procuring and supervising a Level III design

study for the Wyoming state hospital and the Wyoming life

resource center; and

(ii) Evaluating potential options for the management

and ownership structure of the Wyoming retirement center;

(iii) Providing interim reports on the activities of the

task force to the joint appropriations committee and the joint

1 The law was amended in 2016 in ways not germane to this appeal. 2016 Wyo. Sess. Laws, ch. 105, § 3.

7

labor, health and social services interim committee not later

than November 1, 2016 and November 1, 2017;

(iv) Providing recommendations for legislative

action.

Id. at § 4(c). The Task Force is to be staffed by the Legislative Service Office, with the

Department of Administration and Information to serve in an advisory capacity. Id. at

§ 4(d).

[¶20] The amended complaint alleges that:

By vesting responsibility and control over for [sic]

implementation, procurement, supervision, execution, and

control over Department of Health facilities to a group

controlled by members of the Wyoming Legislature, who

hold power to overrule any vote of the executive branch, the

Legislature and a select group of legislators have departed

from their constitutionally prescribed and limited role and

have usurped and taken control over executive branch

functions in violation of Article 2, Section 1 of the Wyoming

Constitution and separation of powers doctrine.

The plaintiffs ask the court to enter declaratory judgment that this law violates the

separation of powers provision of the Wyoming Constitution because it “purports to

assign executive branch duties to the legislative branch,” and to declare that any further

executive branch function sought to be performed by the legislative members of the Task

Force shall be of no effect and must be performed by the executive branch.

D. Count II – All Power Inherent in the People

[¶21] Count II of the amended complaint alleges that by taking duties which the

Wyoming Constitution entrusted to the executive branch and assigning them to the

legislative branch, the challenged legislation has de facto amended the constitution. Yet,

constitutional amendment is a power reserved to the people in article 1, section 1 of the

Wyoming Constitution, which provides:

All power is inherent in the people, and all free

governments are founded on their authority, and instituted for

their peace, safety and happiness; for the advancement of

these ends they have at all times an inalienable right to alter,

reform or abolish the government in such manner as they

think proper.

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Thus, the amended complaint requests declaratory judgment that the Capitol Square

Oversight Group and Department of Health Facilities Task Force have violated this

provision of the Wyoming Constitution, and declaring void and severing all legislative

branch duties from the challenged statutes.

E. Count III – Constitutional and Statutory Contracting and Procurement of the

Capitol Square Project

[¶22] The amended complaint alleges that, with respect to the Capitol Square Project:

 contracts for repairing and furnishing the halls of the legislature were not let

utilizing a competitive bid process;

 contracts did not set a maximum price and have been allowed to escalate

through change orders and mismanagement;

 contracts were let in furtherance of the political interests of an elected official;

and

 contracts were not approved by the Governor and State Treasurer.

[¶23] These practices, it is alleged, violate Wyoming Constitution article 3, section 31,

which provides:

All stationery, printing, paper, fuel and lights used in

the legislature and other departments of government shall be

furnished, and the printing and binding of the laws, journals

and department reports and other printing and binding, and

the repairing and furnishing the halls and rooms used for the

meeting of the legislature and its committees shall be

performed under contract, to be given to the lowest

responsible bidder, below such maximum price and under

such regulations as may be prescribed by law. No member or

officer of any department of the government shall be in any

way interested in any such contract; and all such contracts

shall be subject to the approval of the governor and state

treasurer.

Further, the amended complaint alleges that these practices violate the “procurement

statutes.”2 It seeks declaratory judgment that the Capitol Square Oversight Group and the

Attorney General “have violated the competitive bidding, maximum contract price, bar

2 Although the “procurement statutes” are never identified in the amended complaint, Appellant’s brief

references Wyo. Stat. Ann. § 9-2-1016, which provides that the Department of Administration and

Information is the agency charged with procurement of supplies and services, in accordance with certain

procedures, including competitive bidding, where feasible or practical.

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against self-interest, and signatory requirements of” the constitution and laws of

Wyoming. Appellants requested “an order directing that all further contracting be

performed” in accordance with article 3, section 31 and the procurement statutes. They

did not seek a judgment that would affect existing contracts.

F. Count IV -- Violation of Competitive Bidding Requirements of Procurement

Statutes

[¶24] Count IV of the amended complaint seems to address the award of state

contracts in general. It alleges that “[f]or the current biennium, a total of well over

$550,000,000 . . . has been expended under contracts that were not competitively bid,”

and that 80 percent of all contracting managed by the Department of Administration and

Information Procurement Division is done by sole source contracting and not competitive

bidding.

[¶25] The amended complaint seeks a judgment finding that the “Governor and Attorney

General have violated the competitive bidding requirements of the procurement statutes,”

and order that “all further contracting be performed under competitive bidding, except

where expressly excepted, and without self-interest . . . .” Appellants do not seek a

judgment that would affect existing contracts.

G. Count V – Injunctive Relief

[¶26] Count V asks the court to enjoin the defendants from any further violation of the

constitution and laws of Wyoming, and ordering that “all future actions taken by the

Capitol Square Oversight Group and the Department of Health Facilities Task Force, as

well as general contracting by the State of Wyoming, be performed in accordance with”

law. Appellants do not seek a judgment that would affect existing contracts.

II. Allegations in the proposed second amended complaint

[¶27] After defendants had filed their motion to dismiss the amended complaint,

plaintiffs filed a Motion to Amend Complaint to Add Party Plaintiff, attaching a proposed

Second Amended Complaint for Declaratory Judgment and Injunctive Relief for

Violations of the Wyoming Constitution. The second amended complaint sought to add

as a plaintiff Benjamin J. Hornok, alleging that he was a senior project manager for an

unnamed employer, who was required to lay Mr. Hornok off as a result of lack of work.

The lack of work was the “result of the construction management contract being awarded

to an out of state company,” MOCA Systems, without competitive bidding. Further, the

proposed second amended complaint alleges that Mr. Hornok has been denied the

opportunity to bid on contracts for which he was qualified by the “pervasive and ongoing

practice of the Defendants in maintaining a closed and anti-competitive market for state

contracts that violates competitive bidding requirements under state law.” Mr. Hornok

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would have the court order that any further construction management contracting related

to the Capitol Square Project, or “any other contracting for which he is qualified,” be

awarded pursuant to competitive bidding processes. Further, he would request an order

that MOCA Systems be paid for work performed and for expectancy interests, but that

any remaining work be subject to competitive bidding.

[¶28] The district court dismissed the amended complaint, finding that “the Plaintiffs

have not and cannot demonstrate that they have a genuine, tangible interest at stake in

this proceeding,” and they therefore have not presented a justiciable controversy that

would allow the court to exercise jurisdiction over the matter. The district court went on

to deny the motion to amend to add Mr. Hornok as a party, finding that such amendment

would be futile because he also failed to present a justiciable controversy, and he has

failed to exhaust administrative remedies.

DISCUSSION

I. Appellants Karl Allred and Gerald Gay do not have standing

A. Standard of Review

[¶29] Our review of a motion to dismiss, whether under W.R.C.P. 12(b)(6) or 12(b)(1),

is de novo. “We employ the same standards and examine the same materials as the

district court: we accept the facts alleged in the complaint or petition as true and view

them in the light most favorable to the non-moving party.” Moose Hollow Holdings, LLC

v. Teton Cty. Bd. of Cty. Comm’rs, 2017 WY 74, ¶ 20, 396 P.3d 1027, 1033 (Wyo. 2017)

(quoting Guy v. Lampert, 2015 WY 148, ¶ 12, 362 P.3d 331, 335 (Wyo. 2015)). When

we review dismissal of a complaint for lack of jurisdiction, “we focus on the allegations

contained in the complaint and liberally construe them in the light most favorable to the

plaintiff.” William F. West Ranch, LLC v. Tyrrell, 2009 WY 62, ¶ 9, 206 P.3d 722, 726

(Wyo. 2009) (quoting Cox v. City of Cheyenne, 2003 WY 146, ¶ 7, 79 P.3d 500, 504-05

(Wyo. 2003)). “Likewise, jurisdictional issues regarding the justiciability of a declaratory

judgment action are questions of law subject to de novo review.” Int’l Ass’n of

Firefighters Local Union No. 279 v. City of Cheyenne, 2013 WY 157, ¶ 8, 316 P.3d 1162,

1166 (Wyo. 2013).

[¶30] The keystone of justiciability in both federal and state jurisprudence is the

separation of powers. As the United States Supreme Court has explained:

The requirement that [a plaintiff] must show actual injury

derives ultimately from the doctrine of standing, a

constitutional principle that prevents courts of law from

undertaking tasks assigned to the political branches. It is the

role of courts to provide relief to claimants, in individual or

11

class actions, who have suffered, or will imminently suffer,

actual harm; it is not the role of courts, but that of the political

branches, to shape the institutions of government in such

fashion as to comply with the laws and the Constitution.

Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 2179, 135 L.Ed.2d 606 (1996)

(citations omitted). That rationale applies equally to the separation of powers provision

of the Wyoming Constitution, which proscribes each branch of government from

exercising the powers of another branch. Wyo. Const. art. 2, § 1. “It is not the function

of the judicial branch to pass judgment on the general performance of other branches of

government.” William F. West Ranch, 2009 WY 62, ¶ 32, 206 P.3d at 733.

[¶31] We begin by disposing of some issues which are not presented in this case.

B. No Taxpayer Standing was Alleged

[¶32] Although Appellants strenuously argued in their brief and at oral argument that

they had standing as taxpayers, they made no allegations in their amended complaint that

would support such a claim. In fact, the word “taxpayer” does not appear in the amended

complaint. On review of an order granting a motion to dismiss, we will liberally construe

facts alleged in the amended complaint; however, “liberal construction of pleadings does

not ‘excuse omission of that which is material and necessary in order to entitle one to

relief.’” The Tavern, LLC v. Town of Alpine, 2017 WY 56, ¶ 21, 395 P.3d 167, 173

(Wyo. 2017) (quoting Elworthy v. First Tenn. Bank, 2017 WY 33, ¶ 20, 391 P.3d 1113,

1119 (Wyo. 2017)). Further, we have not yet expressly recognized taxpayer standing in

Wyoming,3 although we have suggested in dicta that “[a] taxpayer is not entitled to

maintain a proceeding for a declaratory judgment in the absence of any showing that the

statute, ordinance, or act being questioned will increase the taxpayer’s burden as a

taxpayer.” Village Road Coalition v. Teton Cty. Hous. Auth., 2013 WY 38, ¶ 16 n.2, 298

P.3d 163, 169 n.2 (Wyo. 2013). No such allegation appears in the amended complaint.

Finally, Appellants’ argument that “this Court upheld citizen and taxpayer standing” in

Director of Office of State Lands & Investments v. Merbanco, Inc., 2003 WY 73, 70 P.3d

241 (Wyo. 2003) is not supported by a careful reading of that case. In Merbanco, we

determined that parents, schoolchildren, and the Wyoming Education Association (WEA)

had standing to challenge a land exchange without public auction because the children

would be “tangibly injured if they do not uniformly receive the best education that tax

resources can provide,” Id. at ¶ 17, 70 P.3d at 248, and because the WEA members and

parents would also be injured by reduced funding for schools. Id. at ¶ 18, 70 P.3d at 248.

We found these parties had a tangible interest that had been harmed “[b]ecause parents

3 Appellant cites MacDougall v. Board of Land Commissioners, 48 Wyo. 493, 49 P.2d 663 (Wyo. 1935),

for the proposition that we recognize taxpayer standing, but that case not only predates Brimmer by

several decades, it merely accepted plaintiff’s standing without challenge and without discussion.

12

have an interest in their children receiving a proper education, and the failure to

auction the land would directly affect the revenue available to enable their children’s

education . . . .” Village Road Coalition, 2013 WY 38, ¶ 15, 298 P.3d at 169 (citing

Merbanco, 2003 WY 73, ¶¶ 15-18, 70 P.3d at 248). Although the parties were interested

in the education that tax resources could provide, they asserted no interest as taxpayers.

C. No Standing is Conferred by Virtue of Having Been an Elected Representative

[¶33] Mr. Gay was, at the time of the amended complaint, the duly elected

representative of House District 36 and a member of the Wyoming House of

Representatives. He alleges that he

has the right to expect that the branch of government that he

represents is constrained to the functions delegated to it by

the Wyoming Constitution and he has been aggrieved to the

extent the branch of government that he represents acts

outside of its constitutionally prescribed authority.

[¶34] Mr. Gay’s position as an elected member of the House of Representatives,

standing alone, is not a basis to confer standing on him. His personal disappointment in

the actions of the legislature does not provide him a special right to act, and he offers no

basis to conclude that he has been authorized by the legislature to act on its behalf. As

we noted in William F. West Ranch, no action as a private attorney general may be

maintained absent a “statute specifically giving a party the right to act as a private

attorney general to enforce the state’s laws.” 2009 WY 62, ¶ 32 n.11, 206 P.3d at 733

n.11.

D. Federal Standing Law May Guide, but Does Not Govern, Wyoming’s Standing

Law

[¶35] Appellants assert that our standing analysis should not be governed by federal law,

and we agree. Federal standing law rests largely on the “case or controversy”

requirements of Article III, Section 2 of the United States Constitution. Flast v. Cohen,

392 U.S. 83, 94-95, 88 S.Ct. 1942, 1949-50, 20 L.Ed.2d 947 (1968). The Wyoming

Constitution has no comparable provision, and instead it contains provisions such as

article I, section 8, providing for access to courts. Robert B. Keiter, The Wyoming State

Constitution, at 31-32 (2d ed. 2017). We have on occasion found guidance in federal

standing law, see White v. Woods, 2009 WY 29A, ¶ 20, 208 P.3d 597, 603 (Wyo. 2009);

Miller v. Wyo. Dep’t of Health, 2012 WY 65, ¶ 18, 275 P.3d 1257, 1261 (Wyo. 2012),

and we continue to do so, although we recognize that we are not bound by the tight

constraints of federal law on this issue.

13

[¶36] We therefore turn to the question whether Mr. Allred and Mr. Gay, asserting rights

held by all Wyoming citizens to enforce the constitution and laws of Wyoming, have

alleged sufficient facts to present this Court with a justiciable controversy. For purposes

of this analysis, we assume without deciding that the legislative and administrative acts

alleged are illegal and unconstitutional.

E. The Brimmer Test

[¶37] In Brimmer v. Thomson, 521 P.2d 574 (Wyo. 1974), the attorney general sought

declaratory judgment, and legislators whose terms had not expired and who alleged they

wished to run for governor counterclaimed for judgment that they were eligible to run for

office despite a formal opinion of the attorney general placing “in serious question the

right of a State Senator who is serving a full term to become a candidate for another

elective office during the period of his term.” Id. at 576. There, the court found, “[i]t is

conceded that all of the defendants have the proper qualifications for such office unless

they be ineligible by virtue of the constitutional provisions.” Id. at 577. The Brimmer

court recognized that declaratory judgment actions are to be liberally construed, but that

nevertheless the court must make a threshold determination whether there is “such

dispute which could serve as the basis of a justiciable issue?” Id. Accordingly, the

Brimmer court adopted the following four-part test for standing:

First, a justiciable controversy requires parties having existing

and genuine, as distinguished from theoretical, rights or

interests. Second, the controversy must be one upon which

the judgment of the court may effectively operate, as

distinguished from a debate or argument evoking a purely

political, administrative, philosophical or academic

conclusion. Third, it must be a controversy the judicial

determination of which will have the force and effect of a

final judgment in law or decree in equity upon the rights,

status or other legal relationships of one or more of the real

parties in interest, or, wanting these qualities be of such great

and overriding public moment as to constitute the legal

equivalent of all of them. Finally, the proceedings must be

genuinely adversary in character and not a mere disputation,

but advanced with sufficient militancy to engender a thorough

research and analysis of the major issues. Any controversy

lacking these elements becomes an exercise in academics and

is not properly before the courts for solution.

521 P.2d at 578 (quoting Sorenson v. City of Bellingham, 496 P.2d 512, 517 (Wash.

1972)). In Brimmer, we found that “defendants certainly have a genuine and existing

right, i.e., to seek election for a public office for which they have proper qualifications.”

Id. at 578. Conversely, they would be injured if their candidacy were wrongfully

14

prevented, and the judgment of the court would “effectually operate to preserve this

right . . .” and “have the force and effect of a final judgment . . . .” Id. at 578-79. Finally,

it found the element of adversity existed because the attorney general opinion, if not

withdrawn or reversed, would be “a bar to the aspirations of these defendants.” Id. at

579. The court also found that, “concerning as it does the election process for the entire

State of Wyoming,” Id. at 578, this was a matter of great public importance. In

discussing that factor, the court cautioned:

This exception must be applied with caution and its exercise

must be a matter where strict standards are applied to avoid

the temptation to apply the judge’s own beliefs and

philosophies to a determination of what questions are of great

public importance.

Id.

[¶38] Our analysis and application of the Brimmer factors have not always been

consistent. In 1979, we held that the Board of Land Commissioners did not have

standing for a declaratory judgment on its decision giving state land lessees the right to

meet the highest bid and acquire state land, because “there was no guarantee the Whites

would exercise their right to meet the highest bid after public auction.” William F. West

Ranch, 2009 WY 62, ¶ 13, 206 P.3d at 728 (citing White v. Bd. of Land Comm’rs, 595

P.2d 76, 80 (Wyo. 1979)). In Gooden v. State, 711 P.2d 405 (Wyo. 1985), a motorist

who was cited for driving while under the influence of alcohol challenged a statute which

required that persons charged with the crime “shall be prosecuted under this section and

not under a reduced charge.” Id. at 408. Ms. Gooden argued that the statute constituted

an infringement on “the prosecutorial discretion of the executive branch” and violated the

separation of powers clause at article 1, section 2 of the Wyoming Constitution. We held

that Ms. Gooden “has not demonstrated that any right of hers had been infringed by this

challenged statute either in fact or in law.” Id. at 409. Without such a right, she had “no

personal stake in any unconstitutional infringement by a statute such as this one upon the

discretion of the prosecutor,” and she lacked standing. Id. at 410.

[¶39] We relaxed the standing requirements in State ex rel. Wyoming Association of

Consulting Engineers and Land Surveyors v. Sullivan, 798 P.2d 826 (Wyo. 1990), where

we found the existence of a matter of great public importance alone was sufficient to

confer standing, holding:

Without deciding whether Petitioners have standing to seek

the issuance of a writ of mandamus which requires Governor

Sullivan to implement the Wyoming Professional Review

Panel Act, we hold that the issue of whether the Wyoming

Professional Review Panel Act is constitutional is of great

public importance and, therefore, merits a decision from this

Court.

15

Id. at 829. We reached the same conclusion in Management Council of Wyoming

Legislature v. Geringer, 953 P.2d 839, 840 (Wyo. 1998), where we held that the issue

regarding the constitutionality of the governor’s partial veto power was one “of great

public importance that merits a decision from this Court, and we, therefore, recognize the

standing of the Management Council to seek a declaratory judgment on that question.”

Id. at 842. Although the court did not apply the four Brimmer elements in that case, it did

recognize that “standing is a concept utilized to determine if a party is sufficiently

affected to insure that a justiciable controversy is presented to the court.” Id. (quoting

Washakie Cty. Sch. Dist. No. 1 v. Herschler, 606 P.2d 310, 316 (Wyo. 1980)). In

Geringer, the Management Council of the Wyoming Legislature brought an action to

challenge the governor’s power to exercise a partial veto over legislation enacted in the

previous special session. 953 P.2d at 840. Clearly, each party—the legislature and the

governor—would be significantly affected by the outcome of a decision that would

determine whether the legislation would be adopted with or without the governor’s

changes.

[¶40] Since Geringer, we have retreated from this liberal application of the public

interest factor. In William F. West Ranch, we acknowledged that the plaintiffs had a

tangible interest affected by coal bed methane water and thus, they satisfied the first

Brimmer element. However, we held that they failed to “demonstrate that the

controversy is one upon which a judgment of the court may effectively operate.” William

F. West Ranch, 2009 WY 62, ¶ 26, 206 P.3d at 731. Thus, they failed the second prong

of the Brimmer test. We agreed that the issue there, the administration of water, was a

matter of great public importance. Id. at ¶ 44, 206 P.3d at 736. We recognized that

historically, we have relaxed our “definition of standing when a matter of great public

interest or importance is at stake,” Id. at ¶ 45, 206 P.3d at 736, or when “a constitutional

question is presented.” Id. at ¶ 45, 206 P.3d at 737. But, we stressed that “[t]his

exception must be applied with caution and its exercise must be a matter where strict

standards are applied to avoid the temptation to apply the judge’s own beliefs and

philosophies to a determination of what questions are of great public importance.” Id.

(quoting Jolley v. State Loan & Inv. Bd., 2002 WY 7, ¶ 10, 38 P.3d 1073, 1078 (Wyo.

2002)). We observed that “a great public interest alone is insufficient to warrant the

action of the court under any situation which we might at present foresee.” William F.

West Ranch, 2009 WY 62, ¶ 46, 206 P.3d at 737 (quoting Cranston v. Thomson, 530 P.2d

726, 729 (Wyo. 1975)). We explained our reluctance to weigh in on the State’s

administration of water, saying “[i]t is not the function of the judicial branch to pass

judgment on the general performance of other branches of government.” Id. at ¶ 32, 206

P.3d at 733. We concluded that the plaintiffs’ claims were too general, and “do not

connect the alleged deficiencies in the State’s administration of water to a direct harm

they have suffered.” Id. at ¶ 50, 206 P.3d at 738.

16

[¶41] Since William F. West Ranch, we have maintained a more faithful application of

Brimmer, and continued to apply a more balanced view of standing. See, e.g., Village

Road Coalition, 2013 WY 38, ¶¶ 13-16, 298 P.3d at 168-69; Guy, 2015 WY 148, ¶¶ 26-

28, 362 P.3d at 340; City of Torrington v. Smith, 2016 WY 126, ¶¶ 24-25, 386 P.3d 336,

344 (Wyo. 2016). Although we did find, in Maxfield v. State, 2013 WY 14, 294 P.3d 895

(Wyo. 2013), that “the requirement of a justiciable controversy may be relaxed in cases

involving matters of sufficient public interest,” id. at ¶18, 294 P.3d at 900, we also found

that the secretary of state’s complaint met the Brimmer elements for a justiciable

controversy because, “unlike the landowners in William F. West Ranch, Mr. Maxfield

alleged a connection between a specific statutory provision . . . and the particular harm he

will suffer—being precluded from seeking a third term as secretary of state.” Id. at ¶ 24,

294 P.3d at 901.

[¶42] Wyoming’s standing jurisprudence has been criticized by some commentators.

See, e.g., Robert B. Keiter, “[i]n the absence of constitutional or statutory underpinnings,

the court’s approach to standing law constitutes nothing other than naked judicial

lawmaking. It is indeed ironic that this is the case when a fundamental premise

underlying standing doctrine is judicial restraint.” Robert B. Keiter, An Essay on

Wyoming Constitutional Interpretation, XXI Land & Water L. Rev. 527, 541 (1986); see

also Amy M. Staehr, Civil Procedure -- The Wyoming Supreme Court Constricts the

Public Interest Exception of the Declaratory Judgments Act; William F. West Ranch,

L.L.C. v. Tyrrell 206 P.3d 722 (Wyo. 2009), 10 Wyo. L. Rev. 141, 143 (2010). In fact,

state and federal standing jurisprudence in general has been the subject of extensive and

sometimes strident attacks. See William A. Fletcher, The Structure of Standing, 98 Yale

L.J. 221, 221 (1988) (“The structure of standing law in the federal courts has long been

criticized as incoherent. It has been described as ‘permeated with sophistry,’ as ‘a word

game played by secret rules,’ and more recently as a largely meaningless ‘litany’ recited

before ‘the Court . . . chooses up sides and decides the case.’” (citations omitted));

Heather Elliot, The Functions of Standing, 61 Stan. L. Rev. 459 (Dec. 2008); Michael S.

Gilmore, Standing Law in Idaho: A Constitutional Wrong Turn, 31 Idaho L. Rev. 509

(1995). But see M. Ryan Harmanis, State’s Stance on Public Interest Standing, 76 Ohio

St. L.J. 729 (2015) (This note, cited by Appellants, concludes that “the rationales

supporting public interest standing are unconvincing,” and that “[p]ublic interest standing

equates to the judiciary expanding its own power, often at the expense of the political

process or another branch of government.” Ryan, supra, at 759).

[¶43] Appellants, however, do not ask us to reconsider our standing precedent. Rather,

they contend that this case raises matters of such overwhelming public import that our

precedent allows this Court to find a justiciable controversy exists. (“[T]he case presents

whether citizens and taxpayers can enter the courtroom to constrain violations of the

Wyoming Constitution and Wyoming statutes by government officials.”) Appellants

contend that if they cannot have access to the court to challenge unconstitutional acts of

the executive and legislative branches, nobody can. (“If the people do not have the right

17

to question unlawful alterations in the form of government, then who does?”) The State

takes the position that if we find these parties have standing, then everybody has standing

to sue the State with allegations of unconstitutional acts, and the floodgates will open.

Likewise, the parties present us with extreme positions on the interplay of a great public

interest factor with the four Brimmer elements—Appellants contending that the issues

they raise are of such great public importance, that alone is sufficient to confer standing,

while the State contends that all four elements must be satisfied before the public interest

is considered. The answer lies somewhere between these extremes. The Brimmer test is

imperfect, its elements often overlap, and our application has not been uniform. But it is

the mechanism we have for honoring the separation of powers and ascertaining

justiciability.

1. Existing and Genuine, as Distinguished from Theoretical, Rights or

Interests

[¶44] Appellants alleged in their amended complaint that Count I (violation of

separation of powers) meets this element because:

The executive branch was endowed with specific authority to

execute the laws passed by the legislative branch and has both

a right and duty to exercise and perform those duties without

usurpation of those duties by the Legislature. In violation of

Article 2, Section 1 of the Wyoming Constitution, executive

branch powers have been removed by the Legislature.

While it describes their separation of powers contentions, this allegation does nothing to

establish the existence of genuine rights or interests, or, in other words, that Appellants

“have a tangible interest which has been harmed.” William F. West Ranch, 2009 WY 62,

¶ 22, 206 P.3d at 730. In Appellants’ brief, they again argue passionately about the

importance of separation of powers, but say little about a tangible interest that has been

harmed. They contend that they “have a right to protect their liberty interests by calling

upon the judiciary to confine the legislature to its constitutional limits,” and, they say,

“[t]heir liberty interests are genuine and very personal in the assurance that the legislature

adheres to the rule of law by confining itself to constitutional limits.” But that conclusory

statement fails to establish a tangible interest that has been harmed. In Jolley, we found

that the appellant had failed to establish this element because he asserted “interests

indistinguishable from that which could be raised by any citizen of Wyoming,” and we

held that “[c]laims of injury of a broad and general nature are not sufficient to

demonstrate that Appellant was ‘aggrieved or adversely affected in fact by the Boards’

actions.’” 2002 WY 7, ¶ 8, 38 P.3d at 1077 (emphasis in original).

[¶45] The cases cited by Appellants do not persuade us of the existence of this element

here. In Washakie County School District No. 1 v. Herschler, we found that “the rule

18

requiring the existence of justiciable controversies is somewhat relaxed in matters of

great public interest or importance,” but we addressed that element only after we held

each of the four Brimmer elements “to be met in the instant case.” 606 P.2d at 318. We

held that each of the categories of plaintiffs had a tangible interest at stake.

The school districts and the members of school boards are

charged with the responsibility of providing education to the

children of Wyoming and are tangibly injured if the statutes

which guide their hands disenable them from so providing.

Parents are keenly concerned and suffer tangible injury if

their children do not receive a proper education. The children

themselves are, obviously, tangibly injured if they do not

uniformly receive the best education that tax resources can

provide.

Id. at 317.

[¶46] In Wyoming Association of Consulting Engineers and Land Surveyors v. Sullivan,

the Court did dispense with an analysis of the Brimmer factors because “the issue of

whether the Wyoming Professional Review Panel Act is constitutional is of great public

importance and, therefore, merits a decision from this Court.” 798 P.2d at 829. As

discussed, see supra ¶ 40, we have retreated from such a broad application of the public

interest to standing analysis. Further, the plaintiff there, the Association, had a genuine

and existing right in compelling the governor to implement the Wyoming Professional

Review Panel Act, whose purpose was to “[r]educe the costs of professional malpractice

claims . . . by a less formal professional review of claims before litigation is pursued in

the courts.” Id. at 829. Appellants cite us to no Wyoming case, and we have found none,

that recognize standing of a party that had no more interest in the matter than that of any

citizen.

[¶47] Appellants contend that Cathcart v. Meyer, 2004 WY 49, 88 P.3d 1050 (Wyo.

2004) and Maxfield v. State, 2013 WY 14, 294 P.3d 895 stand for the proposition that

“[t]he right to vote . . . is a right genuine and personal to every elector (voter).” In fact,

those two cases rely for their finding that the parties had standing on very specific rights

asserted by individuals on their own behalf. In Cathcart, two legislators who would be

barred from running again by Wyoming’s term limits law, and two qualified electors who

were represented in the legislature by the two legislators, brought an action to challenge

the term limits law. The court found no “serious challenge to the [appellants’] standing”

because “[t]he term limit law has an immediate and profound impact upon the appellants’

interests.” Cathcart, ¶ 12, 88 P.3d at 1057-58. The Cathcart court went on to say that

“the constitutionality of a statute may only be questioned by a party whose rights are

affected thereby,” and therefore the appellants could not assert that the law was

unconstitutional as to other elected officials. Id. at ¶ 37, 88 P.3d at 1064. In Maxfield,

19

the secretary of state challenged the application of the term limit law to him. 2013 WY

14, ¶ 1, 294 P.3d at 896. The court held that “[a] judgment declaring that [the law] is, or

is not, constitutional will operate to determine whether he is entitled to seek a third term

as secretary of state and will act as a final judgment upon his rights.” Id. at ¶ 24, 294

P.3d at 901. The court there found that “[e]ven without our conclusion that Mr.

Maxfield’s complaint involves a matter of great public importance, we would hold that

the case presents a justiciable controversy.” Id. at ¶ 22, 294 P.3d at 900. Neither

Catchcart nor Maxfield held, or even addressed, the question of whether there exists

some broad standing for voters or citizens in general.

[¶48] Finally, Appellants cite to Metropolitan Washington Airports Authority v. Citizens

for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 111 S.Ct. 2298, 115 L.Ed.2d 236

(1991). That case is likewise unhelpful to their position. There, the plaintiff citizen’s

group alleged that the actions of the petitioners would “result in increased noise,

pollution, and danger of accidents.” Id. at 264, 111 S.Ct. at 2306. The Court found that

many members of the citizens group lived under flight paths to and from the airports, id.

at 262, 111 S.Ct. at 2304, thus distinguishing their interest from citizens in general.

Again, we find nothing here to support Appellants’ position that they have alleged

existing and genuine, as distinguished from theoretical, rights or interests.

[¶49] Here, the amended complaint identifies Karl Allred as a “citizen Plaintiff” who

“brings this suit on behalf of himself in his capacity as a citizen of Wyoming and on

behalf of the citizens of Wyoming,” and not in his personal capacity. Gerald Gay has

alleged no personal interest distinguishable from the interest of any Wyoming citizen.4

The Appellants’ claim of injury is “indistinguishable from that which could be raised by

any citizen of Wyoming,” Jolley, 2002 WY 7, ¶ 8, 38 P.3d at 1077, they claim no

application of the statute to them, and they fail to demonstrate that they are aggrieved or

adversely affected in fact.

2. Controversy Upon which the Judgment of the Court May Effectively

Operate

[¶50] This redressability element is the other side of the injury coin. “The first two

elements of the Brimmer test are inextricably linked: if a plaintiff fails to allege that an

interest has been harmed, a judicial decision cannot remedy a nonexistent harm.” Village

Road Coalition, 2013 WY 38, ¶ 16, 298 P.3d at 169. Appellants’ failure to satisfy this

element is well-illustrated by an examination of the relief they request in their amended

complaint. There, the Appellants expressly disclaim any desire to challenge existing

contracts:

4 See supra ¶¶ 33-34 for our discussion of Appellant Gerald Gay’s “representative capacity” claim.

20

This Complaint makes no accusations against recipients of

contracts for work related to the Capitol Square Project or for

other contracts awarded by the State of Wyoming or those

making political donations. Nor does this Complaint seek to

set aside contract(s). Rather, this Complaint seeks a ruling as

to the constitutionality of the statute, potential violations of

the Wyoming Constitution and procurement statutes in the

implementation of the statutes, and of the proper

administration of government.

[¶51] The remedy sought for Count I (violation of separation of powers by the Capitol

Square Oversight Group Health Care Facilities legislation) and for Count II (improper

legislative amendment of the constitution) is for a declaration that “any executive branch

function sought to be performed by the legislative members . . . after the entry of an order

by this Court on the separation of powers question shall be of no effect . . . .” With

respect to Count III (violation of article 3, section 31 and procurement statutes), the

amended complaint sought a declaration that the Capitol Square Oversight Group and the

Attorney General have violated that provision of the Wyoming Constitution, and “an

order directing that all further contracting be performed under competitive bidding, under

maximum contract pricing, without self-interest, conforming to the signatory

requirements of article 3, section 31, as administered and carried out by the executive

branch alone.” The remedy Appellants sought for Count IV (pattern of violation of

competitive bidding requirements), is likewise only prospective, requesting “an order

directing that all further contracting be performed under competitive bidding . . . and

without self-interest on the part of any member of the executive or legislative branches.”

Finally, in Count V, the request for injunctive relief is for an order “requiring that all

future actions . . . be performed in accordance with the Wyoming Constitution and

procurement statutes.” In Brimmer, we recognized that “[a] declaratory judgment is a

binding adjudication of the rights and status of the litigants even though

no consequential relief is awarded.” 521 P.2d at 579. Here, however, Appellants’ failure

to seek a judgment that would have an effect on the alleged existing and ongoing

violations they object to highlights the fact that there is no remedy for their nonexistent

harm.5

5 Appellants argue in their brief on appeal that the remedy they seek is “terminating contracts that were

not competitively bid (while paying the contractors for work performed and expectancy damages as it has

never been the Appellants’ desire to harm contractors) and re-letting the contracts using competitive

bidding . . . .” However, there is no request to terminate the contracts in the amended complaint. Further,

it is doubtful the public interest would be served by paying the contractors their expectancy interests and

then re-letting the contracts and paying for the same thing again.

21

3. Controversy the Judicial Determination of which Will Have the Force and

Effect of Final Judgment in Law/or, Wanting These Qualities be of Such

Great and Overriding Public Moment as to Constitute the Legal

Equivalent

[¶52] The district court held that this element was present, because it is the judiciary’s

role to declare “the validity of statutes in relation to the constitution.” It concluded that,

as in Rocky Mountain Oil & Gas Ass’n v. State, 645 P.2d 1163, 1168 (Wyo. 1982),

“giving or refusing relief requested in the complaint will have final force and effect upon

the rights, status and legal relationship of the parties.” Because the district court ruled in

Appellants’ favor on this issue, they present little argument that would support our

finding that this element exists on de novo review. The State, however, contends that this

element cannot be met because, without elements 1 and 2, the court lacks jurisdiction.

We agree that Appellants’ amended complaint does not contain allegations that satisfy

the third Brimmer prong, though for slightly different reasons than the State proposes.

[¶53] We must examine the complete language of this prong:

Third, it must be a controversy the judicial

determination of which will have the force and effect of a

final judgment in law or decree in equity upon the rights,

status or other legal relationships of one or more of the real

parties in interest, or, wanting these qualities be of such great

and overriding public moment as to constitute the legal

equivalent of all of them.[6]

Brimmer, 521 P.2d at 578. A judicial determination would have the force and effect of

final judgment. However, in addition to requiring that the judicial determination have the

force and effect of a final judgment, this element requires that the judgment affect “the

rights, status or other legal relationships of one or more of the real parties in interest.”

We have determined that these parties have not alleged “rights, status or other legal

relationship,” because they have not asserted either injury or redressability.

4. Proceedings Genuinely Adversary

[¶54] As the district court noted, “[t]he body of case law that examines the fourth

Brimmer element is sparse.” It is clear from the briefing, both in the district court and on

appeal, that the parties have advanced their positions “with sufficient militancy to

6 This language seems to indicate that the public interest should be considered as part of the third prong.

However, in Brimmer, the court treated it as a separate element, 521 P.2d at 579, and all of our cases

since then likewise analyze the public interest as an independent element that can have an effect on the

weight placed on the four elements, rather than as part of the third element. See supra ¶¶ 38-41.

22

engender a thorough research and analysis of the major issues.” Brimmer, 521 P.2d at

578. It is less clear that the proceedings can “be genuinely adversary in character and not

a mere disputation,” Id., when we have determined that these Appellants have alleged

neither injury nor redressability. The militancy with which the parties advance their

positions can never suffice to overcome the absence of the other prongs of justiciability.

5. Matter of Great Public Interest and Importance

[¶55] It is undisputed the allegations that statutes and actions of the legislative and

executive branches violate the Wyoming Constitution raise matters of great public

interest and importance. We held in William F. West Ranch, 2009 WY 62, ¶ 46, 206 P.3d

at 737, however, that:

The Uniform Declaratory Judgments Act envisions a

true justiciable controversy before the court may decide a

matter, even if the case presents a matter of great public

importance. The act does not extend the jurisdiction of the

court and § 1-37-103 specifically requires that an “interested”

person present an appropriate “right” for declaration before

the court can assume jurisdiction.

[¶56] Appellants neither contest this holding, nor advance an argument for a different

application of the public interest factor. Rather, they continue to contend that they have

“shown tangible interests in enforcing separation of powers, power over alterations in the

form of government without following the constitutional amendment process, and

the fiscal impact of failing to follow competitive bidding and other spending

requirements . . . .” As we have discussed above, Appellants have failed to meet any of

the four Brimmer elements; therefore, the existence of a matter of great public importance

is insufficient to confer standing on them.

[¶57] In their reply brief, Appellants make another attempt to argue for public interest

standing, contending that “[m]ost states, including Wyoming, have found that taxpayer

challenges of unlawful expenditures of money show tangible interests achieving practical

benefit from a judicial decision.” Putting aside the fact that Appellants have failed to

allege taxpayer standing in any form, see supra ¶ 32, not one of the cases they cite in

support of that statement withstands a reading of the case.7 In Ex parte State ex rel.

Alabama Policy Institute, 200 So.3d 495, 527 (Ala. 2015), abrogated by Obergefell v.

Hodges, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), the Alabama Supreme Court found that

the plaintiff had standing because he had alleged an injury “peculiar to himself.” In

Keller v. French, 205 P.3d 299 (Alaska 2009), a case which Appellants cite for

7 See Antonin Scalia & Bryan A. Garner, Making Your Case, The Art of Persuading Judges, at 123 (2008)

(“Describe and cite authorities with meticulous accuracy.”).

23

proposition that “citizen-taxpayer standing [is] recognized, requiring showing that the

case is of ‘public significance,’” the Alaska Supreme Court, applying a standing test that

is quite different than Wyoming’s, held that the appellants there lacked standing, in part

because they failed to “demonstrate that they have a ‘sufficient personal stake’ in the

outcome of the controversy and ‘an interest which is adversely affected by the

complained-of conduct.’” Id. at 304. In Chapman v. Bevilacqua, 42 S.W.3d 378 (Ark.

2001), the court found that the plaintiff had standing to sue for allegedly improper

disbursements of federal funds only to the extent that those funds were derived from

taxpayer monies, as distinguished from federal funds. Id. at 384. The court reasoned

that, as to federal funds which the city was not liable to repay, the taxpayer would have

no liability, and therefore no standing. Id. at 383-84. In Reeder v. Wagner, 974 A.2d 858

(Del. 2009), the Delaware Supreme Court affirmed the dismissal of a complaint for lack

of standing, noting that the plaintiffs “were seeking an advisory opinion from the

Superior Court reflecting their interpretation of certain statutes . . . .” Id. (citations

omitted). In School Board of Volusia County v. Clayton, 691 So.2d 1066, 1068 (Fla.

1997), the court also rejected the appellants’ claim of standing, noting “[t]he requirement

that a taxpayer seeking standing allege a ‘special injury’ or a ‘constitutional challenge’ is

consistent with long established precedent.” Finally, Appellants quote a phrase from

Brock v. Hall County, 236 S.E.2d 90, 91 (Ga. 1977): “citizens and taxpayers may contest

the expenditure of public funds by suit for injunction.” That phrase appears in a

discussion that applied a “substantial interest aggrieved citizen” test and affirmed the

lower court’s finding that plaintiffs lacked standing. Id. at 91. Every case cited by

Appellants held that public interest standing must be accompanied by some allegation of

a special, individual interest, which these Appellants have simply failed to allege.

[¶58] We adhere to our standing analysis in William F. West Ranch, and continue to

require parties to assert enough of a stake in the outcome to permit the judiciary to

exercise jurisdiction over a case without exceeding its authority and violating separation

of powers limitations. “If we were to rule that any matter of great public importance

could be litigated under the Declaratory Judgments Act, we would be impermissibly

extending our jurisdiction beyond that allowed under the act and the concept of

justiciability firmly established in our jurisprudence.” William F. West Ranch, 2009 WY

62, ¶ 47, 206 P.3d at 737. We affirm the district court’s order dismissing the amended

complaint of Karl Allred and Gerald Gay because they lack standing.

II. The district court did not abuse its discretion when it denied the motion to amend

to add party plaintiff

[¶59] The decision to allow a plaintiff to amend his complaint “is vested within the

sound discretion of the district court and subject to reversal on appeal only for an abuse

of that discretion.” Foxley & Co. v. Ellis, 2009 WY 16, ¶ 32, 201 P.3d 425, 433 (Wyo.

2009) (citation omitted). In denying a motion to amend a complaint, a district court

“abuses its discretion when it acts in a manner which exceeds the bounds of reason under

24

the circumstances.” Three Way, Inc. v. Burton Enters., 2008 WY 18, ¶ 16, 177 P.3d 219,

225 (Wyo. 2008) (citation omitted).

[A] district court may refuse to allow amendment if it would

be futile. A proposed amendment is futile if the complaint,

as amended, would be subject to dismissal. . . . [W]here leave

was denied based on a determination that amendment would

be futile, our review for abuse of discretion includes de novo

review of the legal basis for the finding of futility.

Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013) (citations and

quotation marks omitted).

[¶60] Appellants devote less than two pages of their brief on appeal to this issue, without

a single citation to authority. Their argument is that Mr. Hornok had standing because he

is entitled to bid on the contracts and “could not be awarded the contracts without the

opportunity to bid on them.” Construing the allegations in the light most favorable to Mr.

Hornok, we could find that he has alleged an injury in that he was not awarded any of the

contracts on the Capitol Square Project. His standing fails, however, on the second

element of the Brimmer test. He has alleged no facts that would establish a judgment of

the court would remedy that injury. He has not identified which contracts, if let for

competitive bid, he would have bid on, nor has he alleged that he would have been the

low or successful bidder on those contracts. Just as in William F. West Ranch,

Appellants’ proposed second amended complaint fails to “demonstrate that the

controversy is one upon which a judgment of the court may effectively operate.” 2009

WY 62, ¶ 26, 206 P.3d at 731. The amendment would have been futile, and the district

court did not abuse its discretion when it denied the motion. Because we find that Mr.

Hornok would have lacked standing, we do not address the district court’s alternative

finding that he failed to exhaust administrative remedies.

CONCLUSION

[¶61] We affirm the district court’s conclusion that Mr. Allred and Mr. Gay lack

standing, and we find no error in the denial of their motion to amend to add a plaintiff.

Because we conclude that there is no jurisdiction over this matter, we will not address the

challenge to the constitutionality of Wyo. Stat. Ann. § 1-35-109.

25

KAUTZ, J., specially concurring.

[¶62] I concur in the opinion very ably written by Justice Fox. I write separately to

provide my observations about the nature of standing requirements and the application of

Wyoming’s constitution to the issue of standing.

Standing and Separation of Powers

[¶63] It is ironic that Appellants ask this Court to find they have standing to challenge a

claimed violation of Wyoming’s constitutional separation of powers provision, art. 2, § 1.

In this request, they are asking this Court to go beyond the power granted it, potentially

violating that very provision. The “judicial doctrine of standing is a crucial and

inseparable element” of separation of powers. Antonin Scalia, The Doctrine of Standing

as an Essential Element of the Separation of Powers, 17 Suffolk U.L. Rev. 881, 881

(1983). “[T]he law of standing roughly restricts courts to their traditional undemocratic

role of protecting individuals and minorities against impositions of the majority, and

excludes them from the even more undemocratic role of prescribing how the other two

branches should function in order to serve the interest of the majority itself.” Id. at 894.

[¶64] Appellants claim that “it is the duty of courts of justice to declare void all

legislative acts contrary to the manifest tenor of the constitution,” (internal citation

omitted) implying that such a duty automatically gives the court the power to hear a case

brought by anyone who claims a statute violates the Wyoming Constitution. This

approach suggests that constitutional limits on judicial authority and standing

requirements may be ignored or dispensed with when they become obstacles to judicial

review. The U.S. Supreme Court bluntly responds, “this philosophy has no place in our

constitutional scheme.” Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464, 489, 102 S. Ct. 752, 767, 70 L. Ed.

2d 700 (1982). Such an approach to defining the court’s power would expand the court’s

authority over the other branches of government far beyond what is authorized in our

constitution.

[¶65] Professor Robert P. George describes an additional problem arising from

undisciplined expansion of standing in order to review the constitutionality of legislation:

“its practice tends to encourage the belief among legislators

(and, worse still, among citizens more broadly) that the

constitutionality of proposed legislation is not the concern of

the people’s elected representatives; if a proposed piece of

legislation is unconstitutional, they say, then it is up to the

courts to strike it down. But this is a travesty. For structural

constraints to accomplish what they are meant to accomplish,

for them to constrain the power of government as they are

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meant to do, the question of the constitutionality of legislation

in light of those constraints is everybody’s business – judges

exercising judicial review, yes, but also legislators,

executives, and the people themselves.”8

Robert P. George, Conscience and Its Enemies, 24 (2016).

[¶66] Wyoming courts have only the authority granted by our constitution. State v.

True, 184 P. 229 (Wyo. 1919). Only when the authority exists to hear a cause should the

courts determine whether a legislative or executive act is constitutional. But, even if the

courts do not or cannot consider a particular claim of constitutionality, each branch of

government must seriously consider the constitutionality of its actions.

[¶67] Although Wyoming’s constitution takes a different approach from the U.S.

Constitution when defining judicial authority (see below), the principles stated in cases

discussing the U.S. Constitution describe the relationship between standing and judicial

authority well. “The law of (standing) serves to prevent the judicial process from being

used to usurp the powers of the political branches, and confines the federal courts to a

properly judicial role.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635

(2016), as revised (May 24, 2016) (internal citations omitted). “No principle is more

fundamental to the judiciary’s proper role in our system of government ….”

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 1861, 164 L.Ed.2d

589 (2006). “In keeping with the purpose of this doctrine, ‘[o]ur standing inquiry has

been especially rigorous when reaching the merits of the dispute would force us to decide

whether an action taken by one of the other two branches … was unconstitutional.’”

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264

(2013). “Relaxation of standing requirements is directly related to the expansion of

judicial power.” U.S. v. Richardson, 418 U.S. 166, 188, 94 S.Ct. 2940, 2952, 41 L.Ed.2d

678 (1974) (Powell, J., concurring).

[¶68] “The proposition that all constitutional provisions are enforceable by any citizen

simply because citizens are the ultimate beneficiaries of those provisions has no

boundaries.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227, 94 S.

Ct. 2925, 2935, 41 L.Ed.2d 706 (1974). This principle applies to Wyoming courts. In

effect, Appellants urge the courts to find authority to decide claims of unconstitutionality

without regard to the boundaries established by our constitution.

[¶69] The requirement that litigants present a justiciable controversy – that they have

“standing” – is not and should not be an arbitrary process whereby the court decides if it

deems a party or a case worthy of consideration. When deciding whether standing exists,

8 According to Appellants, a prior governor vetoed similar legislation believing it violated art. 2, § 1 of

the Wyoming Constitution.

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the court is not deciding that it wants or does not want to hear a particular case. Rather,

the court is recognizing that it has only the authority granted by the Wyoming

Constitution, and is applying the rule of law whether it finds a case attractive or not.

[¶70] Appellants argue that if the court does not find standing in this case, decisions

about standing have “the potential of devolving into an arbitrary process of flushing out

cases the judiciary finds inconvenient.” The opposite is true. If the court were to decide

that standing exists simply because a party has claimed an issue is important, or

constitutional, then the decision would be arbitrary, unconnected to any objective

standard.

[¶71] Appellants further assert that if the courts do not determine that they have standing

to challenge the constitutionality of the statutes in question, then no one will be able to do

so. “The assumption that if respondents have no standing to sue, no one would have

standing, is not a reason to find standing.” Schlesinger, 418 U.S. at 227, 94 S.Ct. at 2925.

Furthermore, it cannot be assumed that no one would have standing. There may be many

individuals or entities directly impacted by the legislation.

Wyoming’s Constitution

[¶72] Article III of the U.S. Constitution limits the judicial power of U.S. government

courts to certain “cases” and “controversies.” This limitation means that parties in

federal court must show an injury that is “concrete, particularized, and actual or

imminent.” Clapper, 568 U.S. at 409, 133 S.Ct. at 1140, quoting Monsanto Co. v.

Geertson Seed Farms, 561 U.S. 139, 149, 130 S.Ct. 2743, 2752, 177 L.Ed.2d 461 (2010).

This standing requirement is analogous to the first requirement of our Brimmer test.

[¶73] Wyoming’s constitution does not utilize the terms “case” and “controversy,” but

provides a similar limitation on judicial power. Article 5, § 10 of the Wyoming

Constitution establishes the authority of the general trial courts in our state: “The district

court shall have original jurisdiction of all causes, both at law and in equity.” (Emphasis

added). Appellate authority is contained in art. 5, § 2 which provides that “The supreme

court shall have general appellate jurisdiction … in both civil and criminal causes.”

(Emphasis added). It logically follows that Wyoming courts do not have constitutional

authority to act unless there is a cause.

[¶74] Our constitution delineates who may seek redress for wrongs in Wyoming courts

in art. 1, § 8. There it states that every person may seek justice in our courts “for an

injury done to person, reputation or property.” (Emphasis added.) Causes brought by

plaintiffs against defendants which may come to court in Wyoming, then, are those where

the claimant asserts some concrete, particularized, and actual or imminent injury. Or, put

in terms of the first Brimmer requirement, Wyoming courts have authority to hear cases

where a plaintiff has alleged injury to existing and genuine, as distinguished from

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theoretical, rights or interests. Where plaintiffs do not allege particularized injury to

personal, non-theoretical rights, they do not have standing and Wyoming courts do not

have authority.

[¶75] This limitation on judicial action is not unique. Rather, it restricts the judiciary to

“the traditional role of Anglo-American courts, which is to redress or prevent actual or

imminently threatened injury to persons caused by private or official violation of law.”

Summers v. Earth Island Institute, 555 U.S. 488, 492, 129 S. Ct. 1142, 1148, 173 L. Ed.

2d 1 (2009). It is entirely consistent with the fundamentals of our constitutional

government – limited government authority and separation of powers.

Affirmed