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Gordon v. State

Supreme Court of Wyoming

March 22, 2018

MARK GORDON, in his duly elected and official capacity as the Treasurer of the State of Wyoming and in his individual capacity as a resident and qualified elector of the State of Wyoming, Appellant (Plaintiff),
v.
THE STATE OF WYOMING, acting by and through the Capitol Building Rehabilitation and Restoration Oversight Group, a statutory committee operating under the auspices of Wyoming Senate File 103 (2014), codified at W.S. 9-5-111 (LexisNexis 2016) and Wyoming Senate File 0041 (2016), Appellee (Defendant).

          Appeal from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge

          Representing Appellant: Anthony T. Wendtland of Wendtland & Wendtland, LLP, Sheridan, Wyoming

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Jay A. Jerde, Special Assistant Attorney General. Argument by Mr. Jerde.

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

          OPINION

          DAVIS, Justice.

         [¶1] Mark Gordon, in his capacity as Treasurer of the State of Wyoming, [1] filed a complaint for declaratory judgment and permanent injunctive relief challenging on its face the constitutionality of legislation that created the State Capitol Building Rehabilitation and Restoration Oversight Group (oversight group). The district court granted the State's motion for summary judgment, holding that Gordon had failed to establish that the legislation facially violated the Wyoming Constitution. Gordon appeals from the district court's order. We reverse and remand.

         ISSUES

         [¶2] Gordon states the issues for this Court's consideration as follows:

1. Does the Capitol Repair Legislation facially violate Article 3, Section 31 of the Wyoming Constitution?
2. Does the Capitol Repair Legislation facially violate Article 2, Section 1 of the Wyoming Constitution?

         FACTS

         [¶3] In 2014, the Wyoming Legislature enacted legislation to effectuate restoration of the state capitol and Herschler state office buildings.[2] The statutes provided in pertinent part:

§ 9-5-110. State capitol building rehabilitation and restoration project; definitions.
(a) As used in W.S. 9-5-109 through 9-5-113:
(i) "Advisory task force" means the joint legislative and executive advisory task force on capitol building rehabilitation and restoration created by W.S. 9-5-109(k);[3]
(ii) "Department" means the department of administration and information;[4]
(iii) "Oversight group" means the oversight group created by W.S. 9-5-111;
(iv) "Project" means the state capitol building and Herschler state office rehabilitation, restoration and renovation project described in W.S. 9-5-112, including all components of the project.
§ 9-5-111. State capitol building rehabilitation and restoration project oversight group; creation; duties.
(a) There is created a state capitol building rehabilitation and restoration oversight group comprised of:
(i) The governor;
(ii) The president of the senate and majority and minority floor leaders of the senate;
(iii) The speaker of the house of representatives and majority and minority floor leaders of the house;
(iv) A member of the senate selected by the president of the senate and a member of the house selected by the speaker of the house not later than March 31, 2014 and by March 31 of each odd numbered year thereafter.
(b) A quorum of the oversight group shall consist of the governor and a majority of the legislative members of the oversight group. Except for approvals under W.S. 9-5-112(e) and (f), actions of the oversight group may be taken by vote of a majority of the legislative members in attendance or by their proxy vote and the governor.
(c) The oversight group shall have the powers and duties as provided by law.
* * *
§ 9-5-112. Capitol building rehabilitation and restoration project; components; oversight.

         (i) Capitol building restoration and rehabilitation;

         * * *

         (vi) Contingency costs, costs of fees and other costs associated with the project.

         * * *

         (f) The department may expend funds appropriated by the legislature for the project to implement the design, renovation, restoration, rehabilitation, construction and other project components which have been included in the final design plans approved under subsection (e) of this section. Any change order to the approved final design plans in excess of one hundred thousand dollars ($100, 000.00) or in a cumulative amount in excess of one million dollars ($1, 000, 000.00) shall require the approval of a majority of the legislative members of the oversight group and the governor.

§ 9-5-113. Capitol building rehabilitation and restoration project; design and construction execution.
(a) Notwithstanding W.S. 9-5-101 through 9-5-108, [5] for all components of the project:
(i) The construction management program within the general services division of the department shall be the primary fiscal and contracting agent;[6]
(ii) Level III design and construction shall proceed under the immediate direction and control of the governor in accordance with the provisions of W.S. 9-5-110 through 9-5-113;
(iii) In addition to those items required by law to be presented to the advisory task force for advice, as recommended by the oversight group and directed by the governor, the department shall consult with the advisory task force on other project items as the project progresses.

2014 Wyo. Sess. Laws ch. 40, § 1.

         [¶4] As the above provisions reflect, the 2014 legislation did not designate the state treasurer as a member of the oversight group, nor did it provide that the state treasurer's approval was required for contracts related to the capitol restoration project.

         [¶5] In February 2016, the Office of the Attorney General for the State of Wyoming issued a formal opinion addressing the question of the treasurer's role under Article 3, § 31 in the capitol restoration project. Wyo. Atty Gen. Op. 2016-001, 2016 WL 870371 (Feb. 2, 2016). In the opinion, the attorney general's office concluded that Article 3, § 31 did not require the treasurer's approval of capitol restoration project contracts. Id. at 1. The opinion stated, however, that Article 3, § 31 did not bar the legislature from passing statutes providing for treasurer participation in the process.

         [¶6] In May of 2016, Gordon filed a complaint asserting that the legislation was illegal on its face because it violated Article 3, § 31 of the Wyoming Constitution, which provides:

All stationary, 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.

Wyo. Const. Art. 3, § 31 (emphasis added). Gordon argued that the legislation violated this provision because it did not provide for the state treasurer's approval of contracts for the capitol restoration project, which involved "repairing and furnishing the halls and rooms used for the meeting of the legislature and its committees."[7]

         [¶7] Gordon further asserted that the legislation violated Article 2, § 1 of the Wyoming Constitution, which states:

The powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.

Wyo. Const. Art. 2, § 1. Gordon argued that this provision prohibited the legislature from enacting legislation that usurped or ignored the state treasurer's express power to approve contracts for repairing and furnishing the portions of the state capitol used for meetings of the legislature and its committees. He sought judgment declaring the legislation to be unconstitutional and entry of a permanent injunction prohibiting the oversight group from entering into contracts for the capitol restoration project without his approval.

         [¶8] The State filed an answer denying Gordon's claims. Gordon then filed a motion for partial summary judgment, contending that as a matter of law the capitol restoration legislation facially violated Article 3, § 31 because it authorized the oversight group and the governor to enter into contracts for repairing rooms used by the legislature and its committees without the treasurer's approval. He further argued that as a matter of law the legislation on its face violated the separation of powers provision contained in Article 2, § 1 because it empowered the legislature to exercise powers properly belonging to the treasurer as a member of the executive branch. Gordon also filed a motion for certification of the issues raised in his partial summary judgment to this Court, contending that it was in the best interest of the public, the Court, and the parties for the matter to be resolved as expeditiously as possible, and that certifying the case would hasten its resolution.

         [¶9] In response to Gordon's partial summary judgment motion, the State argued that it should be denied[8] because Gordon had not established that the requirements of Article 3, § 31 applied to the capitol restoration project; Gordon had not established that the capitol restoration project legislation facially violated Article 3, § 31; and the legislation did not violate the separation of powers provision found in Article 2, § 1. With regard to Gordon's motion to certify, the State contended it should be denied because he had not established that certifying the questions of law "may be determinative" of the case nor had he established a lack of controlling precedent as required by W.R.A.P. 11.01. The district court heard arguments on the motions in December of 2016.

         [¶10] In early 2017, while the motions were pending in district court, the legislature amended the capitol restoration legislation in pertinent part as follows:[9]

§ 9-5-111. State capitol building rehabilitation and restoration project oversight group; creation; duties.

         * * *

(v) The state treasurer;

         * * *

which consist of the legislator members and the state treasurer

         * * *

Wyo. Stat. Ann. § 9-5-111 (LexisNexis 2017) (emphasis added); see also 2017 Wyo. Sess. Laws ch. 204, § 1.

ยง 9-5-112. Capitol building rehabilitation and restoration project; ...

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