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Allred v. Bebout

Supreme Court of Wyoming

January 30, 2018

KARL ALLRED, on behalf of himself and the citizens of Wyoming; and former Representative GERALD GAY, in his capacity as a former member of the House of Representatives, Appellants (Plaintiffs),
v.
ELI D. BEBOUT, President of the Senate, Wyoming Legislature; MATTHEW H. MEAD, Governor; STEVE HARSHMAN, Speaker of the House; DREW A. PERKINS, Senate Majority Floor Leader; CHRIS ROTHFUSS, Senate Minority Floor Leader; DAVID R. MILLER, House Majority Floor Leader; CATHY CONNOLLY, House Minority Floor Leader; FRED EMERICH, Senate Representative; PETER MICHAEL, Attorney General; DAN DOCKSTADER, Senate Representative; FRED BALDWIN, Senate Representative; BRIAN BONER, Senate Representative; LLOYD LARSEN, House Representative; DANNY EYRE, House Representative; and BOB NICHOLAS, House Representative, Appellees (Defendants).

         Appeal from the District Court of Laramie County The Honorable Catherine R. Rogers, Judge

          Representing Appellants: Drake D. Hill, Hill Law Firm, LLC, Cheyenne, Wyoming.

          Representing Appellees: Jay A. Jerde, Special Assistant Attorney General, Wyoming Attorney General's Office.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          FOX, Justice.

         [¶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 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 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 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.

         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

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 labor, health and social services interim committee not later ...

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