Gordon v. State

413 P.3d 1093

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).

S-17-0173

Supreme Court of Wyoming.

March 22, 2018

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.

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.

(a) The department shall proceed with level III design and construction for renovation, rehabilitation, restoration and addition to the state capitol building, the Herschler state office building and the connection between the two (2) buildings in accordance with presentations to the management council of the legislature on November 18, 2013 and January 9, 2014, and the provisions of W.S. 9-5-109 through 9-5-113. The project shall proceed as a single funded project with the following components:

(i) Capitol building restoration and rehabilitation;

(ii) Herschler state office building renovation, rehabilitation and additional construction including a structure connecting the Herschler building and the capitol building and addition to the Herschler building;

* * *

(v) Furniture, fixtures and equipment for the project;

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

(b) The level III design shall allocate space within the capitol building to meet legislative needs, needs of the governor's office and security needs in the capitol building as determined by the oversight group and the governor. In determining space allocations under this subsection the oversight group and the governor shall be guided by level II studies for the capitol building restoration and rehabilitation conducted in 2013. To the extent the oversight group and the governor determine that all such needs cannot be accommodated within the capitol building, legislative committee rooms and offices for committee chairmen and associated legislative session staff may be within the structure connecting the capitol building and Herschler state office building. If the governor and the oversight group determine that space will exist in the capitol building in excess of the needs of the legislature, the governor's office and capitol building security needs, then the department, in consultation with the advisory task force, shall provide one (1) or more design alternatives to the oversight group and governor for review and approval, allocating available remaining space to the statewide elected officials with offices within the capitol building as of April 1, 2014.

* * *

(e) No funds shall be expended for the purposes of construction until final design plans for the project have been submitted to the advisory task force for review and comment and to the governor and the oversight group for review and a majority of the legislative members of the oversight group has recommended approval and the governor has approved the plans.

(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,

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