Allred v. Bebout

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., 464 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 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, 26 Wyo. 314 , 184 P. 229 (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, — U.S.-, 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, the court is not deciding that it wants or does not want to hear a particular ease. 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.

[1171] 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.

[174] -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 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.

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