Cathcart v. Meyer

2004 WY 49

88 P.3d 1050

RICH CATHCART, RODNEY "PETE" ANDERSON, SCOTT ZIMMERMAN and KEITH KENNEDY, Appellants (Plaintiffs), v. JOSEPH B. MEYER, WYOMING SECRETARY OF STATE, in his official capacity, Appellee (Defendant), and JACK ADSIT and U.S. TERM LIMITS FOUNDATION, Appellees (Intervenors/Defendants).

JOSEPH B. MEYER, WYOMING SECRETARY OF STATE, in his official capacity, Appellant (Defendant), v. RICH CATHCART, RODNEY "PETE" ANDERSON, SCOTT ZIMMERMAN and KEITH KENNEDY, Appellees (Plaintiffs).

JACK ADSIT and U.S. TERM LIMITS FOUNDATION, Appellants (Intervenors/Defendants), v. RICH CATHCART, RODNEY "PETE" ANDERSON, SCOTT ZIMMERMAN and KEITH KENNEDY, Appellees (Plaintiffs).

Nos. 04-32, 04-33, 04-34

Supreme Court of Wyoming. APRIL TERM, A.D. 2004.

May 4, 2004.

Representing Rich Cathcart, Rodney "Pete" Anderson, Scott Zimmerman and Keith Kennedy: Harriet M. Hageman and Kara Brighton of Hageman & Brighton, Cheyenne, Wyoming; and Timothy M. Stubson of Brown, Drew & Massey, LLP, Casper, Wyoming.

Representing Joseph B. Meyer, Wyoming Secretary of State: Patrick J. Crank, Attorney General; Michael R. O'Donnell, Chief Deputy Attorney General; and Michael L. Hubbard, Deputy Attorney General, Cheyenne, Wyoming.

Representing Jack Adsit and U.S. Term Limits Foundation: Sasha Johnston and Daniel E. White of Woodard & White, P.C. Cheyenne, Wyoming.

Representing Amicus Curiae, Wyoming Term Limits Group: Bradley T. Cave and Lawrence J. Wolfe of Holland & Hart, LLP, Cheyenne, Wyoming.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶1] Two incumbent state legislators and two electors challenge the constitutionality of Wyoming's initiative-engendered term limit statute. These cases come to us from the district court via W.R.A.P. 11 certified questions and W.R.C.P. 54(b) certification of an order rejecting affirmative defenses. We affirm the district court's rejection of the affirmative defenses and we find the term limit statute unconstitutional.

CERTIFIED QUESTIONS

1. Is the term limit law for state elected officials (Wyo. Stat. Ann. § 22-5-103), whether adopted by initiative or legislative action, constitutional and enforceable, given the qualifications enumerated in Article 6, §§ 2 and 15; Article 3, § 2; and Article 4, §§ 2 and 11 of the Wyoming Constitution?

2. Does the term limit law (Wyo. Stat. Ann. § 22-5-103) violate the appellants' right to vote, given the provisions of Article 6, § 2 of the Wyoming Constitution?

3. Do the reserved powers of the people under the Wyoming Constitution include the right to alter the government by initiative or by statute with regard to the time period any one person can hold any particular state office?¹

4. Is this action barred by the doctrine of laches or by a statute of limitations?

PROCEDURAL BACKGROUND

[¶2] On January 7, 2004, two Laramie County state legislators and two Laramie County residents (collectively "the appellants") filed a complaint in district court seeking a declaration that Wyoming's term limit law is unconstitutional, and asking the district court to enjoin the secretary of state from enforcing it. On January 23, 2004, the secretary of state answered the complaint by asserting the constitutionality of the statute and by asserting the affirmative defenses of standing, laches, estoppel, waiver, adequate remedy at law (repeal), failure to state a claim upon which relief can be granted (no justiciable controversy/political question), failure to state a claim upon which relief can be granted (statute of limitations in Wyo. Stat. Ann. § 1-3-109 (LexisNexis 2003)), failure to state a claim upon which relief can be granted (statute of limitations in Wyo. Stat. Ann. § 22-24-122 (LexisNexis 2003)), and the constitution's reservation to the people of the right to reform, alter or abolish government in any manner as they may think proper.

[¶3] On February 13, 2004, the district court allowed a Wyoming citizen and a national research and education foundation dedicated to the preservation of term limit legislation to intervene as party defendants. On the same date, the district court also entered the order rejecting affirmative defenses that is the subject of these consolidated appeals. Finally, on February 20, 2004, the district court entered its Revised Order Certifying Questions. On February 23, 2004, this Court entered its Notice of Agreement to Answer Certified Questions, Order Consolidating Related Appeals, Order Establishing Briefing Schedule, and Order of Setting for Oral Argument. The next day, a Supplemental Order on Briefing of Certified Questions ordered briefing on certain additional constitutional provisions. Oral arguments were heard on March 24, 2004.

FACTS²

[¶4] In the 1992 general election, Wyoming voters approved an initiative that limited the number of terms of office that could be served by certain of its elected federal and state officials.³ The relevant portion of that initiative, as amended by the legislature in 1995, is currently found at Wyo. Stat. Ann. § 22-5-103 (LexisNexis 2003):

§ 22-5-103. Legislative service; limits on ballot access; state offices

(a) Notwithstanding any other provision of Wyoming law, the secretary of state or other authorized official shall not certify the name of any person as the nominee or candidate for the office sought, nor shall that person be elected nor serve in that office if the following will occur:

(i) The person, by the end of the current term of office will have served, or but for resignation, would have served eight (8) or more years in any sixteen (16) year period in the office for which the candidate is seeking nomination or election, except, that any time served in that particular office prior to January 1, 1993, shall not be counted for purposes of this term limit. This provision shall apply to the offices of governor, secretary of state, state auditor, state treasurer, and state superintendent of public instruction;

(ii) The person, by the end of the current term of office will have served, or but for resignation, would have served twelve (12) or more years in any twenty-four (24) year period as a state representative, except that any time served in the office of state representative prior to January 1, 1993, shall not count for purposes of this term limit;

(iii) The person, by the end of the current term of office will have served, or but for resignation, would have served twelve (12) or more years in any twenty-four (24) year period as a state senator, except that any time served as a state senator prior to January 1, 1993, shall not be counted for purposes of this term limit.

[¶5] The initiative also contained a specific statement of "findings and declarations":

(a) The people of the state of Wyoming hereby find and declare as follows:

(i) State and federal representatives who remain in office for extended periods of time become preoccupied with their own reelection and for that reason devote more effort to campaigning for their office than making legislative decisions for the good of the people of Wyoming;

(ii) State and federal representatives have become too closely aligned with the special interest groups who provide contributions and support for their reelection campaigns, provide special favors and intense lobbying, all of which causes corruption or the appearance of corruption of the legislative system;

(iii) Entrenched incumbency has discouraged qualified citizens from seeking office and lead to a lack of competitiveness and a decline in robust debate of issues important to the people of Wyoming;

(iv) Due to the appearance of corruption and the lack of competitiveness for entrenched incumbency seats, there has been a reduction in voter participation which is counter-productive in a representative democracy;

(v) The people of the state of Wyoming have determined that the declarations and findings contained herein threaten their vital interest in maintaining the integrity of their state and federal office holders and avoiding the appearance of corruption and lack of response to the needs of the people of Wyoming. It is their purpose and intent in enacting this law that term limitations is the best method by which to insure that these vital interests are guarded for the people of the state.

1992 Initiative No. 1, § 2.

[¶6] Appellant Cathcart is a current member of the Wyoming Senate who will have served twelve years by the end of this term. Appellant Anderson is a current member of the Wyoming House of Representatives who will have served twelve years by the end of this term. Both Cathcart and Anderson meet all the qualifications for holding office contained in Wyo. Const. art. 3, § 2 and art. 6, §§ 2 and 15. Appellants Zimmerman and Kennedy are both residents and qualified electors of Laramie County who are represented in the legislature by Cathcart and Anderson. The term limit law precludes Zimmerman and Kennedy from voting in the next election for Cathcart and Anderson for their current positions, and it precludes Cathcart and Anderson from being elected to the same.

STANDARD OF REVIEW

[¶7] When questions of law are certified to this court pursuant to W.R.A.P. 11, we rely entirely on the district court's factual determinations. BP America Production Co. v. Madsen, 2002 WY 135, ¶ 4, 53 P.3d 1088, 1090 (Wyo. 2002). The question of the constitutionality of a statute is a question of law. Reiter v. State, 2001 WY 116, ¶ 7, 36 P.3d 586, 589 (Wyo. 2001) (quoting V-1 Oil Co. v. State, 934 P.2d 740, 742 (Wyo. 1997)). Our standard of review in such cases has been described as follows:

"In reviewing a constitutionally based challenge to a statute, we presume the statute to be constitutional and any doubt in the matter must be resolved in favor of the statute's constitutionality. Thomson v. Wyoming In Stream Flow Committee, 651 P.2d 778, 789-90 (Wyo.1982). [Appellant] bears the burden of proving the statute is unconstitutional. Pfeil v. Amax Coal West, Inc., 908

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