# Petition — Hot Springs County School District Number One v. Washakie County School District Number One

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 824

## Text

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1979

wt I=IT728

HOT SPRINGS COUNTY SCHOOL DISTRICT
NUMBER ONE, et al,

Petitioners,

vs.

WASHAKIE COUNTY SCHOOL DISTRICT

NUMBER ONE, et al,
Respondents.

PETITION FOR WRIT OF
CERTIORARI

TO THE SUPREME COURT OF THE
STATE OF WYOMING

ROSS D. COPENHAVER
Ross D. Copenhaver, P.C.
Counsel for Petitioners
Box 839
Powell, Wyoming 82435

INDEX

Opinions Below . ..++-e+#e eb ese
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CUSSCIONS PIEGENTOR. . « 2 ts 6 wk
Constitutional Provision and Statutes

DO es eR ee ee ee ee
Statement of the Case. .......e-.
Reasons for Allowance of the Writ. ..

CSG bos 461

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Table of Cases

Baltimore and O.R.

Co.

vs.

U.S.

264 US 258 ..

Baltimore and O.R. Co.

vs.

U.S.

298 US 349 ..

Board of Liquidation vs.

Louisiana,

Rees i: ew amy oe

City of Mountlake Terrace vs.

549 Pp.2a 497 .

Covington and Lexington Turnpike R.
Sandord,

«ee

Wilson

164 U.S.
Cowles vs. Mercer County

7 WSs Rae «&«

578.

Cronin vs. Lindber
ee gs ee

Data Processing Service vs. Camp

397 US 150...

First National Bank vs.

Bellotti

435 U.S. 765.

Holm vs. State (Wyo), 404 P.2d 740.
Jenkins vs. McKiethen,

395 US 41l .

Lincoln TP School District vs.

Redfield Consolidated School Dist

283 N.W.
Louisville R. Co.

Vs.

881 (Iowa 1939)

Letson

2 How. 497...

Manley vs. Georgia, 279 US l.

Monell vs. Department of Social

Services,

436 U.S. 658 .

Moses Lake School District vs. Big

Bend Community College
503 P.2a 86 (Wash. 1872) Rae ogee

Northshore School District vs.

Kinnear, 530 P.2d 178 (Wash. 1974)

Ohio Telegraph Co. vs. Public

Utilities Comm.

’

wad, Was. 292.
Pennsylvania vs. New Jersey,

426 US 660. .

Santa Clara County vs. Southern

Pacific R. Co.,

ii

IT8 U.S. 394

14

School District No. 23 vs. School

Planning Committee, 361 P.2d

Oe Sues BOOBT « 6: e e088 ee
South Carolina vs. Katzenbach

eee Cees se Re ee 8
State vs. Anderson, (Minn.)

Se ae eee aR oe
State vs. State Tax Commission

ee Bemeee eae se 8 ek Se ee ef

Town of Wickenburg vs. State,
565 P.2d 1326 fazi. 4)
Village of Blaine vs. Independent
School District, 138 N.W.2d 32
as eee 6 se 8: he ewe ee
Washakie County School District No.
vs. Herschler, 606 P.2a 310, 317
ts DS o
. e e * °
o e oO e .
” ° 7 © o
e o * . .

iii

16
14
11
18

17

18

13

pe

10
10

12

Texts

LS Aiki Rs LOST, Anaets (19se? ce ec a UE
16A AmJur, Constitutional Law, §848 .. 9

iv

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO.

HOT SPRINGS COUNTY SCHOOL DISTRICT
NUMBER ONE, and SUBLETTE COUNTY SCHOOL
DISTRICT NUMBER NINE

Petitioners,
vs.

WASHAKIE COUNTY SCHOOL DISTRICT NUMBER ONE,
DONNA MOBERLY, MARY JANE SCHMELTZER,
RANDALL RIDEOUT, HAROLD MCDONALD, HARRY
UJIFUSA, ROBERT MOODY and JAMES ARGERIS,
being all of the members of THE BOARD OF
TRUSTEES OF WASHAKIE COUNTY SCHOOL DISTRICT
NUMBER ONE; MARY JANE SCHMELTZER as next
friend for CHRISTOPHER SCHMELTZER, JOE
SCHMELTZER, and FRANCES SCHMELTZER, minors;
RANDALL RIDEOUT as next friend for JASON
RIDEOUT, ANTHONY RIDEOUT, and MICHAEL
RIDEOUT, minors; HAROLD McDONALD as next
friend for KEVEN McDONALD, KEITH McDONALD,
DAVID McDONALD, KENNETH McDONALD, and BRIAN
McDONALD, minors, HARRY UJIFUSA as next
friend for KELLY UJIFUSA and GAYLE UJIFUSA,
Minors; ROBERT MOODY as next friend for
TODD MOODY, SHERRI MOODY, CINDY MOODY, JOHN
MOODY, AL MOODY, and SCOTT MOODY, minors;
and JAMES ARGERIS as next friend for JAYME
ARGERIS, TAWN ARGERIS, and GRETT ARGERIS,
minors; UINTA COUNTY SCHOOL DISTRICT NUMBER
SIX, G. GRANT REDDEN, CLINT WALKER, F.
DANNY EYRE, DONALD R. CARROLL and CURTIS
MORGAN, being all of the members of THE
BOARD OF TRUSTEES OF UINTA COUNTY SCHOOL

DISTRICT NUMBER SIX, FREMONT COUNTY SCHOOL
DISTRICT NUMBER 25, DENNIS TIPPETS, L. J.
GERAUD, PATRICIA B. FERRIS, ALICE KUCERA,
STANLEY SMALLEY, and THOMAS YOUTZ, being
all of the members of THE BOARD OF TRUSTEES
OF FREMONT COUNTY SCHOOL DISTRICT NUMBER
TWENTY FIVE, ALBERT B. SCHULTZ, ED
HERSCHLER, Governor, State of Wyoming, LYNN
SIMONS, State Superintendent of Public
Instruction, SHIRLEY WITTLER, Wyoming State
Treasurer, JOHN PATTON, KEITH WEST, DR.
DENIS LYMAN, BARBARA ROGERS, KEITH BECKER,
REDELL HOOPER, KAREN HAND, DR. DONALD
BLAKESLEE, GLENN ENGLEKING, being all of
the members of the WYOMING STATE BOARD OF
EDUCATION, PARK COUNTY SCHOOL DISTRICT
NUMBER SIXTEEN, CAMPBELL COUNTY SCHOOL
DISTRICT NUMBER ONE, CONVERSE COUNTY SCHOOL
DISTRICT NUMBER ONE, CARBON COUNTY SCHOOL
DISTRICT NUMBER TWO, SWEETWATER COUNTY
SCHOOL DISTRICT NUMBER ONE, and LINCOLN
COUNTY SCHOOL DISTRICT NUMBER ONE,

Respondents,

PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF WYOMING

To The Honorable Chief Justice and
Associate Justices of the Supreme Court of
the United States.

Petitioners pray that a Writ of
Certiorari issue to review the final Order
and Judgment of the Supreme Court of the
State of Wyoming, entered in this matter on
February 8, 1980.

OPINIONS BELOW

The opinion of the Supreme Court of
Wyoming is reported at 606 P.2d 310 and is
printed in Appendix A hereto, infra,
page A-l. The decision of the Supreme
Court of Wyoming upon rehearing is reported
at 606 P.2d 340, and is printed in Appendix
B hereto, infra, page B-l. Pursuant to
such decisions, a Judgment and Order dated
March 25, 1980, was entered in the District
Court of Hot Springs County, Wyoming, upon
April 1, 1980, which Judgment is printed in
Appendix C, infra, page C-l.

JURISDICTION

The decision of the Supreme Court of
Wyoming, Appendix A, infra, page A-l, was
entered on January 15, 1980. A timely
Petition for Rehearing was filed and
thereafter a final Order denying rehearing
was entered on February 7, 1980, Appendix
B, infra, page B-l. The jurisdiction of
this court is invoked under 28 USC, §1257
(3).

QUESTIONS PRESENTED

Have the petitioners been denied due
process and equal protection under the
Fourteenth Amendment by rendition of a
final decision in the Wyoming Supreme
Court based upon evidence developed sua
sponte by the Wyoming Supreme Court, when
petitioners were given no warning of the
use of such evidence, nor any opportunity
to rebut, examine or explain, nor any
advance indication that a final judgment.
would result?

Are petitioners "persons" entitled to
claim rights of due process and equal

protection of the laws under the Fourteenth
Amendment against the acts of the Wyoming
Supreme Court?

CONSTITUTIONAL PROVISION «ND
STATUTES INVOLVED

The constitutional provision involved is
Section 1 of the Fourteenth Amendment to
the Constitution:

"All persons born or naturalized in the
United States and subject to the juris-
diction thereof are citizens of the
United States and of the State wherein
they reside. No State shall make or
enforce any law which shall abridge the
privileges or immunities of citizens of
the United States; nor shall any State
deprive any person of life, liberty or
property without due process of law; nor
deny to any person within its jurisdic-
tion the equal protection of the laws."

The provisions of Wyoming Statutes
giving to petitioners the same rights as
other litigants to the use of the courts
ana judicial process are:

W.S. (Wyoming Statutes Annotated 1977,
Republished Edition) 21-3-101. "Each
school district now or hereafter legally
organized within this state shall be a
body corporate."

W.S. 21-3-111. "(a) The board of trust-
ees in each school district within the
state may:

(i) Sue and be sued in the name by
which the district is designated.

(iv) Employ legal counsel and bear the
cost of litigation."

The Statutes and Rules of Procedure of
the State of Wyoming providing to all
litigants a right to judicial determination
of issues of fact, to present defenses and
objections, to a trial of issues and
affording an opportunity to be heard are
printed and attached hereto as Appendix G.

STATEMENT OF THE CASE

Each petitioner is a school district
within the State of Wyoming.

Upon June 20, 1978, three other school
districts within the State of Wyoming, with
members of their boards of trustees acting
as such, as the next friend of their
children, and as taxpayers, and a superin-
tendent of one school district filed in the
District Court of Hot Springs County,
Wyoming, a complaint seeking a declaratory
judgment that the Wyoming system of finan-
cing public education is unconstitutional,
and other relief. Petitioners were named
as defendants along with the Governor,
State Treasurer and Superintendent of
Public Instruction of the State of Wyoming,
members of the State Board of Education,
and six other school districts. Each
defendant filed a motion to dismiss on
several grounds, including lack of a
justiciable controversy, that plaintiff
school districts lacked authority and
standing to bring suit, lack of specificity,
inability of the court to provide a remedy,
lack of jurisdiction, and others. Until a
ruling upon such motions was entered no
answers were required, and no answer was
filed by any defendant.

Following arguments and submission of
memoranda of law upon such motions, the
district court thereafter made and entered
its Order granting motions to dismiss, a
printed copy of which is attached as
Appendix D, infra, page D-l. The plain-
tiffs in such action appealed to the
Supreme Court of Wyoming.

No evidentiary hearing was ever held; no
discovery proceedings had; and no evidence
was presented by the parties to either the
district court or the Wyoming Supreme
Court.

After the submission of briefs of law
and arguments thereon directed solely to
the issues presented by the Order granting
motions to dismiss, the Wyoming Supreme
Court took the matter under consideration
and thereupon proceeded to gather a number
of tables and statistics from the Wyoming
State Library and reports of the Wyoming
State Department of Education and, among
other things, found a classification on the
basis of wealth, stated that the burden was
upon those defending the classification
(petitioners and other defendants), stated
that the proposition of those defending was
unsupported by convincing argument or
authority (although no opportunity to give
such argument or authority was ever af-
forded), stated that petitioners had shown
no other viable criteria or test to a test
which the Supreme Court developed of
equality of dollar input; and remanded the
matter to district court with direction to
vacate the Order of Dismissal and enter
Judgment consistent with its opinion.

Petitioners filed a timely Petition for
Rehearing which is printed as Appendix E

#*

hereto, infra, page E-l, alleging, among
other reasons for a rehearing, that:

(1) Petitioners had been denied due
process and a fair hearing.

(2) That a factual hearing was required
and that such a hearing is guaranteed to
petitioners by the statutes and rules of
Wyoming; and that the Supreme Court of
Wyoming did not have jurisdiction to
render a decision or a judgment on
evidence originally acquired by the
Supreme Court itself, without offer by
any party or opportunity of any party to
rebut or cross examine. Petitioners
therewith filed their brief in support
of the Petition for Rehearing.

The first sixteen pages of the brief of

petitioners are printed and attached hereto

as Appendix F, infra, pages F-l1 - 16. fn
such brief petitioners did further set up

and plead to the Wyoming Court their rights

under the Constitution of the United
States, stating:

", . .The legislature having given
appellee school districts the full right
to use of the courts and the procedures
therein, such right ‘in accord with the
will of its creator' cannot be denied by
the courts, and such denial is a viola-
tion of equal protection under both the
Fourteenth Amendment of the United
States Constitution, and Sections 8 and
34 of Article I of the Wyoming Constitu-
tion." infra, page F-3

"The procedural due process provided by
the statutes and rules of Wyoming is
substantially the same as by decision is

#*

granted to individuals under the Four-
teenth Amendment." infra, page F-4

"The right to present evidence is essen-
tial to the fair hearing required by the
Due Process Clausé." infra, page F-4

"The provision for a hearing implies the
privilege of introducing evidence." infra,

page F-5

"There is no hearing in the constitu-
tional sense where the party does not
know what evidence is offered or con-
sidered and is not given an opportunity
to protest, explain or refute." infra,
page F-5

"The right under the Due Process Clause
to a full hearing includes the right of
a party whose rights are sought to be
affected to introduce evidence and have
judicial findings based upon it."
infra, page F-5

The Petition for Rehearing was denied,
and subsequently Judgment was entered as
directed by the Wyoming Surpeme Court. A
copy of the Judgment is attached hereto as
Appendix C, infra, page C-l.

REASONS FOR ALLOWANCE
OF THE WRIT

When the Wyoming Supreme Court rendered
its decision, directing entry of final
judgment upon this matter which was then
before the court upon an appeal by plain-
tiffs from an Order dismissing their
Complaint, the Wyoming Court denied to all
defendants in the matter, including peti-
tioners, the fundamental due process of an

opportunity to be heard by a trier of fact.
The Wyoming Court gave no advance notice of
its intention to render a final judgment -
It received and heard no evidence except
that which it developed sua sponte. It
gave to no party any opportunity. to examine,
rebut or explain such evidence or to
present any legal authority or agrument
relating thereto.

The Wyoming Supreme Court then, upon
receiving a request for rehearing, calling
these matters to its attention and reques-
ting an opportunity for a "hearing",
denied such request.

The opportunity to be heard is a funda-
mental requisite of due process of law. To
judge in a contested proceeding implies the
hearing of evidence from both sides in open
court, a comparison of the merits of the
evidence, a conclusion from the evidence of
where the truth lies, the application of
appropriate laws to the facts found and the
rendition of judgment accordingly. Manle
vs. Georgia, 279 US 1, 73 L.Ed. 575, 578.

The right to present evidence is essen-
tial to the fair hearing required by the
Due Process Clause. Jenkins vs. McKiethen,
395 US 411, 23 L.Ed.2d 404, 421.

The provision for a hearing implies the
privilege of introducing evidence.

Baltimore and O.R. Company vs. U.S., 264
US 258, 265, 68 L.Ed. EST 674.

There is no hearing in the constitution-
al sense when the party does not know what
evidence is offered or considered and is
not given an opportunity to protest,
explain or refute. 16A AmJur, Constitu-

tional Law, Section 848, page 1059. The
right under the Due Process Clause to a
full hearing includes the right of a party
whose rights are sought to be affected to
introduce evidence and have judicial
findings based upon it. Baltimore and O.R.

Company vs. U.S., 298 US 349, 80 L.Ed.
1209, 1224.

The Wyoming Supreme Court itself in
Holm vs. State, 404 P.2d 740, 744, has
stated: "One of the most basic elements of
due process is the right of each party to
be apprised of all the evidence upon which
an issue is to be decided, with the right
to examine, explain or rebut such evidence.
- . And, the right to hear and controvert
all evidence upon which a factual adjudi-
cation is to be made includes the right to
hear and cross examine witnesses."

The right to confront and cross
examine witnesses is a fundamental aspect
of procedural due process and such right
applies not only in criminal proceedings,
but also in non-criminal proceedings,
including administrative or quasi judicial
proceedings, Jenkins vs. McKiethen, 395 US
411, 23 L.Ed. 2d 404, 421. Wilner vs.
Committee on Character and Fitness, 373 US
96, 10 L.Ed.2d 224, Wolff vs. McDonnell,
418 US 539, 41 L.Ed.2d 935.

In Ohio Telegraph Co. vs. Public
Utilities Comm., 301 US 292, 57 S.Ct. 794,
81 L.Ed. 1093, this Court held that the
fundamentals of due process were denied
when a decision was based upon evidence
obtained without notice to the parties,
or opportunity to dispute, examine or
explain that evidence.

10

The procedural due process rights of a
state were specifically recognized by the
court in State vs. Anderson (Minn.) 19 NW2d
70. A statute provided for a hearing and
the court, at page 74, said: "We now hold
that such right to answer and to have a
hearing at which witnesses may be examined
and cross examined is the absolute right of
the State."

The next question presented in the Peti-
tion is whether petitioners, having been
granted the right to litigate a contro-
versy between them and other school dis-
tricts, have the right to demand procedural
due process guaranteed by the Fourteenth
Amendment. It appears that the precise
question is one of first impression before
this Court.

This Court has had many occasions to
consider the extent to which a municipal
corporation can question the actions of
its creator, the state legislature. In
many of those cases, this Court has held
that a municipal corporation, being a mere
political subdivision of the state created
as a convenient agency for the exercise of
its governmental powers, had no right to
question the actions of its creator. See,
e.g., Williams vs. Baltimore, 289 U.S. 36,
53 S.ct. 431, 77 L.Ed. 1015 (1933) and
other cases cited in Annot. 116 A.L.R. 1037
(1938).

In those cases, however, the municipal
corporations attempted to object to legis-
lative action or action taken pursuant to
statute which adversely affected its powers,
authority or property.

In no decision which petitioners have
found has any court ever before - after

11

es”

having determined that the political
subdivision (or any other party) has the
standing or capacity to sue - denied such
litigant the full judicial process equal to
that afforded to every other litigant. In
this case the Wyoming State Legislature as
creator of petitioners has granted the
petitioners the full right to use the
courts and the procedures therein. Such
right having been granted by the legisla-
ture, a denial of their right by the court
was a violation of equal protection and due
process.

Under Wyoming law, school districts are
corporate bodies (Wyo. Stat. §21-3-101
(1977)) with the power to sue and be sued,
to employ legal counsel and bear the cost
of litigation. (Wyo. Stat. §21-3-111
(1977)).

Although the Wyoming Supreme Court has
held that municipal corporations do not
have the power to question the legality of
legislation passed by their creators,

oming State Treasurer vs. City of
Rawlins, 510 P.2d 301, 302 (Wyo. 1973), the
Wyoming Supreme Court in this case has
specifically ruled that the Plaintiff
school districts had the power and auhtor-
ity to question the constitutionality of
the system of financing public education
created by the Wyoming Legislature. One of
the bases of the Defendants' motions to
dismiss this case was that the Plaintiff
school districts, as political subdivisions
of the state, lacked standing to question
the legality of the legislative financing
system. In its opinion, the Wyoming Supreme
Court said:

"The school districts and the members of
school boards are charged with the

12

responsibility of providing education to
the children of Wyoming and are tangibly
injured if the statutes which guide their
hands disenable them from so providing.

- « -(W)e hold that each of the named
appellants has standing to sue under the
circumstances of this case." Washakie
County School District No. 1 vs.
Herschler, 606 P.2d 310, 317 (Wyo. 1980)

Of course, the converse must also be
true. If the Plaintiff school districts
are entitled to question the legality of
the system of financing public education,
the Defendant school districts are equally
entitled to support their contention
that the system was constitutional.

The question, then, is whether the
petitioners, as parties to this litigation,
are entitled to demand due process of law
guaranteed under the Fourteenth Amendment
of the United States Constitution. As was
noted above, the petitioners’ research has
not led them to a case where this Court has
decided that precise question. Several
decisions of this Court, however, do have a
bearing on the question.

The Wyoming Supreme Court determined
that the school districts have "standing" -
and that the interest sought to be protected
is within the zone regulated by the
Constitution - within the test determined
by this Court in Data Processing Service
vs. ane 397 us 150, S.Ct. 827, 25 uk.
2d 184.

Petitioners respectfully submit that, it
having been determined that their interests
in this matter are within the zone of the
Wyoming Constitution relating to school
financing - then other constitutional

13

guarantees of a fair hearing under both
State and U.S. Constitutions cannot be
separated or segregated.

This Court has, on a number of occasions,
determined whether various entities were
"persons" entitled to the protection of
various constitutional provisions. For
instance, in South Carolina vs. Katzenbach,
383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769
(1966) this Court held that a state was not
a person for the purposes of the due pro-
cess clause of the Fifth Amendment to the
United States Constitution. On the other
hand, in First National Bank vs. Bellotti,
435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707
(1978) this Court held that corporations
were persons for purposes of availing them-
selves of the Fourteenth Amendment guaran-
tees. This Court said:

"It has been settled for almost a century
that corporations are persons within the
meaning of the Fourteenth Amendment."
Citing Santa Clara County vs. Southern
Pacific R. Co., 118 U.S. 394, 6 S.Ct.
1132, 30 L.Ed. 118 (1886); and

Covington and Lexington Turnpike R. Co.
vs. Sandford, 164 U.S. S78, 17 S.ct. 158,
41 L.Ed. 560 (1896), Id. at 435 U.S. 780,
ps: a &. 7

In reaching that determination, this Court
noted that states were not free to define
the rights of their creatures without con-
stitutional limit. The court said:

"Otherwise, corporations could be denied
the protection of all constitutional
guarantees, including due process and
the equal protection of laws." Id. at
435 U.6. 779, tn. 24.

14

Admittedly, a distinction may be made
between the petitioners, which are public
corporations, and the appellant in Bellotti,
which was a private corporation. It is sub-
mitted, however, that that distinction makes
no difference to the principle involved,
which is whether parties to legal proceedings
can expect and demand the due process guaran-
tees of the Fourteenth Amendment.

In fact, this Court has previously recog-
nized that private and public corporations
should be treated as natural persons for
purposes of constitutional analysis. [In
Monell vs. Department of Social Services,
436 U.S. S53 38 SCE 8 S.Ct. 2018, 56 L.Ed.2d 611
(1978) this Court considered whether school
districts and other municipal corporations
were "persons" subject to liability for
denial of civil rights under the Civil
_ Rights Act of 1871 (42 U.S.C. 1983). The
decision in Monell turned upon the Court's
analysis of the legislative history of the
Act.

After that analysis, however, the Court
considered the status of private and public
corporations in 1871. The court said:

"In addition, by 1871, it was well under-
stood that corporations should be
treated as natural persons for virtually
all purposes of constitutional and
statutory analysis." Id. at 436 U.S. 687.

The Court noted that this had not always
been the case, and it was not until
Louisville R. Co. vs. Letson, 2 How. 497,
ll L.Ed. 353 (1844) that the Court held
that a corporation was to be deemed as a
person for all intents and purposes, and
treated as a citizen of a state as much as
a natural person. The Court then went on
to say:

15

"And only two years before the debate on
the Civil Rights Act, in Cowles vs.
Mercer County, 7 Wall 118, 121, 19 L.Ed.
86 (1869), the Letson principle was
automatically and without discussion
extended to municipal corporations.
Under this doctrine, municipal corpora-
tions were routinely sued in the federal
courts. . ." Id. at 436 U.S. 688

In Monell this Court noted that the usual
meaning of the word person would extend to
municipal corporations. Id.

Decisions of other state courts appear
to be split on the question. In City of
Mountlake Terrace vs. Wilson, 549 P.2d 497
(Wash. App. 1976) the Washington court said:

"The due process clause protects people
from government; it does not protect the
state from itself. Municipal corpora-
tions are political subdivisions of the
state, created for exercising such
governmental powers of the state as may
be entrusted to them and they may not
assert the protection of the due process
clause against actions of the state
government." Id. at 498

A similar holding was made in Moses
Lake School District vs. Big Bend Community
College, 503 P.2d 86 (Wash. 1972). In
1974 the Court denied the standing of a
school district to raise constitutional
issues relating to school financing.
Northshore School District vs. Kinnear,
530 P.2d 178 (Wash. 1974).

On the other hand, in School District No.
23 vs. School Planning Committee, 361 P.2d
360 (Colo. 1961) the Supreme Court of

16

Colorado said:

"Both Federal and State Constitutions
provide that one may not be deprived

of his property except by due process of
law. Plaintiff, even though a mere
school district, has the right to insist
that its property shall not be taken
without adherence to this constitutional
safeguard. On this basis alone Plaintiff
has sufficient interest to maintain the
action. Id. at 361

The Illinois court has held that a school
board may assert a denial of equal protection
of the laws if it is a member of a class
being discriminated against, even though due
process guarantees in the ordinary sense do
not extend to them. Cronin vs. Lindberg,

360 N.E.2d 360 (111. 1976).

In Iowa, the Court, although stating
that a school district is not a "person"
under provisions of the constitution, did
allow the ghee due process of a
hearing. Lincoln T School District vs.
Redfield Consolidated School BEREESEES 283
N.W. 881 (Iowa 1939).

In Arizona, although stating that a
municipality has no rights or privileges
arising under the U.S. Constitution which
it may assert against the state which
created it, the court held that munici-
palities have rights granted to them under
the State Constitution which they may assert
against a state statute - and the right to
bring suit to protect or enforce such rights
is inherent in the power granted. Town of
Wickenburg vs. State, 565 P.2d 1326 (Ariz.
1977) .

17

Minnesota and Missouri courts have stated
that school districts are not persons within
the protections of due process. Village of
Blaine vs. Independent School District, 138
N.W.2d 32 (Minn. 1965); State vs. State Tax
Commission, 589 S.W.2d 613 (Mo. 1979).

It is submitted, however, that there is
no logical reason to hold that the Petition-
ers, and through them the taxpayers and
patrons they represent, are not entitled to
avail themselves of the due process guarantee
of the Fourteenth Amendment. It must be
remembered that the Petitioners were created
by the state government specifically for the
purpose of governing and maintaining the
public schools within their boundaries.

Their creator, the Wyoming State Legislature,
gave the school districts board powers to
effectuate that purpose, including the

right to be a party to this litigation to
assert their position on the questions
raised. They did so, however, as repre-
sentatives of the taxpayers and patrons
within the districts.

The U.S. Supreme Court, in its decision
rendered in Board of Liquidation vs.
Louisiana, 179 U.S. 622, 45 L.Ed. 347, found
a Similar situation. In the Louisiana court
the want of capacity was expressly put at
issue and passed on, the court holding
that both bodies (commissions established
by the state) occupied such a fiduciary
relation as to empower them to assert that
enforcement of provisions of the state
Constitution would impair the obligations
of contracts. Motions to dismiss for the
reason that the commissions did not have
capacity to plead impairment of contracts
in violation of the Constitution of the
United States, were then held to be without
colorable support. As Mr. Justice White

18

7”

stated (p. 637) such argument "is but to

say at one and the same time that there was
capacity and incapacity to assert and protect
the contract rights."

Hindsight would suggest that the Defendant
school districts should have assisted an
interested taxpayer in intervening to assert
his rights as a taxpayer in this litigation.
Had that been done, there would be no ques-
tion but that the taxpayer would be entitled
to avail himself of the due process guaran-
tee of the Fourteenth Amendment. At the
outset of this case, however, none of the
parties had any reason to believe that the
Wyoming Supreme Court would shortcut the
judicial process and reach its determination
on the merits based upon evidence about
which the defendants had no notice and no
chance to rebut, assumptions of crucial
factual matters, and without even giving
the Defendants a chance to present argument
on the substantive legal questions involved.
The mere fact that the parties to the liti-
gation were the entities created by the
State to enforce the rights of its tax-
payers should not be an excuse to deprive
those taxpayers, through the school district,
of their constitutional rights.

It is respectfully submitted, therefore,
that this case falls directly within the
ground set forth in Rule 19.1(a) of the
Revised Rules of the Supreme Court of the
United States. When the Wyoming Supreme
Court denied the petitioners’ Petition for
Rehearing, it clearly decided a federal
question of substance in a way that is not
in accord with the applicable decisions of
this Court. The petitioners, and through
them the taxpayers and patrons they
represent, are entitled to at least the
fundamental elements of due process of law,

19

which includes the right to have notice of
and to rebut opposing evidence, the right

to have a trier of fact (including a jury if
the petitioners are ever given the opportu-
nity to make a demand for one) determine
disputed factual issues, and the right to
present its position on the substantive
legal questions which are to be determined.

CONCLUSION

This Petition for Writ of Certiorari
should, for the foregoing reasons, be
granted.

Respectfully submitted,

ORIGINAL SIGNED BY
ROSS D. COPENHAVER

OF ROSS D. COPENHAVER, P.C.
Counsel for Petitioners
P.O. Box 839

Powell, Wyoming 82435

(Ph. 307 754-2276)

20

APPENDIX A

IN THE SUPREME COURT, STATE OF WYOMING
OCTOBER TERM, A.D. 1979

1/15/80

WASHAKIE COUNTY SCHOOL DISTRICT
NUMBER ONE, DONNA MOBERLY, MARY JANE
SCHMELTZER, RANDALL RIDEOUT, HAROLD
McDONALD, HARRY UJIFUSA, ROBERT
MOODY and JAMES ARGERIS, being all
of the members of THE BOARD OF
TRUSTEES OF WASHAKIE COUNTY SCHOOL
DISTRICT NUMBER ONE; MARY JANE
SCHMELTZER as next friend for
CHRISTOPHER SCHMELTZER, JOE
SCHMELTZER, and FRANCES SCHMELTZER,
minors; RANDALL RIDEOUT as next
friend for JASON RIDEOUT, ANTHONY
RIDEOUT, and MICHAEL RIDEOUT, minors;
HAROLD McDONALD as next friend for
KEVEN McDONALD, KEITH McDONALD,
DAVID McDONALD, KENNETH McDONALD,
and BRIAN McDONALD, minors, HARRY
UJIFUSA as next friend for KELLY
UJIFUSA and GAYLE UJIFUSA, minors;
ROBERT MOODY as next friend for

TODD MOODY, SHERRI MOODY, CINDY
MOODY, JOHN MOODY, Ai MOODY, and
SCOTT MOODY, minors; and JAMES
ARGERIS as next friend for JAYME
ARGERIS, TAWN ARGERIS, and BRETT
ARGERIS, minors;

UINTA COUNTY SCHOOL DISTRICT NUMBER
SIX, G. GRANT REDDEN, CLINT WALKER,
F. DANNY EYRE, DONALD R. CARROLL and
CURTIS MORGAN being all of the
members of THE BOARD OF TRUSTEES OF
UINTA COUNTY SCHOOL DISTRICT NUMBER
SIX,* FREMONT COUNTY SCHOOL DISTRICT
NUMBER 25, DENNIS TIPPETS, L. J.
GERAUD, PATRICIA B. FERRIS, ALICE
KUCERA, STANLEY SMALLEY, and THOMAS

me ee ee ee ee ee ee ee ee ee ee ee ee et ee ee ee ee ee ee ee ee ee

YOUTZ, being all of the members of
THE BOARD OF TRUSTEES OF FREMONT
COUNTY SCHOOL DISTRICT NUMBER TWENTY
FIVE, and ALBERT B. SCHULTZ,

Appellants
(Plaintiffs),

Ve

ED HERSCHLER, Governor, State of
Wyoming, LYNN SIMONS, State
Superintendent of Public Instruction,
SHIRLEY WITTLER, Wyoming State
Treasurer, JOHN PATTON, KEITH WEST,
DR. DENIS LYMAN, BARBARA ROGERS,
KEITH BECKER, REDELL HOOPER, KAREN
HAND, DR. DONALD BLAKESLEE, GLENN
ENGLEKING, being all of the members
of the WYOMING STATE BOARD OF EDUCA-
TION, PARK COUNTY SCHOOL DISTRICT
NUMBER SIXTEEN, CAMPBELL COUNTY
SCHOOL DISTRICT NUMBER ONE, CONVERSE
COUNTY SCHOOL DISTRICT NUMBER ONE,
HOT SPRINGS COUNTY SCHOOL DISTRICT
NUMBER ONE, CARBON COUNTY SCHOOL
DISTRICT NUMBER TWO, SUBLETTE COUNTY
SCHOOL DISTRICT NUMBER NINE,
SWEETWATER COUNTY SCHOOL DISTRICT
NUMBER ONE, and LINCOLN COUNTY
SCHOOL DISTRICT NUMBER ONE,

Appellees
(Defendants).

Appeal from the District Court of Hot
Springs County, the Honorable Joseph
F. Maier, Judge.

John W. Davis and Jeffrey A. Donnell,
Worland, signed the bried; and Mr.
Davis appeared in oral argument on be-
half of the appellants.

A-2

de a di i le i i i ee ee ee ee

John D. Troughton, Attorney General,
Mary B. Guthrie, Assistant Attorney
General, Lawrence J. Wolfe, Legal
Intern; T. Michael Golden, Rawlings,
for Carbon County School District No.
2; Ross D. Copenhaver, Powell, for Hot
Springs County School District No. l
and Sublette County School District
No. 9; Dennis L. Sanderson, Kemmerer,
for Lincoln County School District

No. 1; J. Patrick Hand, Douglas, for
Converse County School District No. 1;
L. B. Cozzens, Cody, for Park County
School District No. 16; and Wade Brorby,
Gillette, for Campbell County School
District No. 1, signed the brief for
appellees. Messrs. Wolfe and Golden
appeared in oral argument on behalf of
appellees.

Before RAPER, C.J., MCCLINTOCK, THOMAS,
and ROSE, JJ, and HILL, D.J.**

*Uinta County School District Number
Six,.G. Grant Redden, Clint Walker, F.
Danny Eyre, Donald R. Carroll and Curtis
Morgan, being all of the members of

the Board of Trustees of Uinta County
School District Number Six did not
participate in this appeal.

** Justice Rooney having recused himself,
District Judge Robert A. Hill, Second
Judicial District, was assigned.

RAPER, Chief Justice.

On June 20, 1978, the appellants
brought action under the Wyoming Uniform
Declaratory Judgments Act 1/ seeking
relief from the Wyoming system of financ-
ing public education. The appellants
described in their complaint the ine-
quities that are resulting from the
financing system currently used in this
state and asked as relief that the system
be declared violative of the Wyoming
Constitution. In the latter part of
August, 1978, numerous motions to dismiss
2/ were filed by the defendants. Memo-
randa of law were submitted by all
parties on the various issues raised in
the motions to dismiss. After some
intermediate proceedings, the district
court entered its order dismissing the
complaint on May 4, 1979. The order
dismissing the complaint stated no ground
upon which it was based. However, a
letter from the district court to the
parties under date of April 10, 1979,
sheds some light on the action:

"I have considered
the various memorandums
of all counsel previously
submitted with regard to
the above captioned case
and specifically with
regard to my prior re-
quest that there be con-
sidered the possibility
of stipulations which
would permit the sub-
mission of the case to
the Wyoming Supreme
Court on reserved con-
stitutional questions.

"Counsel have obvi-
ously taken the position
that they do not desire
to cooperate in such an
endeacor and since
the Court has no ability
to require them to do so
I can only conclude
that we cannot proceed
in that manner at this
time. I felt that
it was important to
the citizens of this
state and the various
school districts that
this case be resolved by
a final decision of the
Supreme Court in the
earliest and most econ-
omical manner but that
obviously is not going
to happen.

"Consequently, as I
indicated at the oral
hearing in Thermopolis,
the Court will grant the
motions to dismiss. De-
fendant's counsel are
directed to prepare
appropriate orders and
to submit the same to all
counsel for approval and
then to the Court for
signature and entry.

2/ The defendants'

1/ Sec. 1-37-101 to 1-37-115, W.S.1977.

was enlarged by the court under a

stipulation entered into by the parties.

A-5

time in which to answer

"I presume that
following that, this case
could languish on for
several appeals and many
years before we get any
final determination on
the merits, for which
I am genuinely regretful."

The district court's action in dismissing
appears to be antithetical to his ex-
pressed hope for an early and economical
decision of the case and the avoidance of
multiple appeals. As will become evi-
dent as this opinion progresses, the
district court's action will in fact not
serve to delay a substantive decision of
this crucial question. We will hold

the Wyoming system of school financing
unconstitutional in that it fails to
afford equal protection in violation of
the Wyoming Constitution.

The motions to dismiss were based on
several grounds. Essentially they were
these:

(1) Appellants' complaint
does not state a claim
on which relief can be
granted.

(2) The appellants’ complaint
lacks specificity, i.e.,
it does not specifically
identify the statute or
statutes which they
allege to be in contra-
vention of the constitu-
tion but rather merely
assert that the "system
of financing public

education" is in
violation of the constitu-
tion.

(3) The appellants' each
lack standing to bring
the complaint.

(4) The appellants' action is
not a justiciable contro-
versy: The questions
presented are political
in nature and must be
addressed by the legis-
lature rather than the
courts.

(5) The appellants' action
is defective because they
failed to join every tax-
payer as a party.

(6) The appellants' action
should be dismissed for
failure to request a
proper remedy.

Since the appellees asserted these nu-
merous grounds as bases for dismissal in
the district court and since the district
court did not specify on which ground or
grounds he based his grant of dismissal,
we will address each of these issues seri-
ally, giving to each a brief but clearly
defined answer, before proceeding to the
principal question raised by this appeal--
i.e., is the Wyoming system of financing
public education in violation of the
Wyoming Constitution? As the momentum of
the opinion accelerates, these prelimin-
ary questions will fade from sight as
superficial.

Appellees assert that the appellants'
complaint does not state a claim on which
relief can be granted. The appellants
are claiming that under the Wyoming Con-
stitution they have a right to a school
financing system that provides a relativ-
ely uniform amount of money on an annual
per-pupil basis to each of the Wyoming
school districts, 3/ i.e., they are enti-
tled to an equal educational opportunity.
Further they claim that under the financ-
ing system which has been established by
the legislature they are denied such an
equal educational opportunity. Wyoming
has adopted the Uniform Declaratory Judg-
ments Act, supra. It is evident from

a reading of the Act
interpreting it that
was properly brought
of that legislation.
seek a determination
and status under the

and the case law
the instant action
under the auspices
The appellants

of their rights
constitution and

statues of this state.4/

3/ We are well aware that the formula
that will provide equality will be quite
complex. More money may be needed in one
school district to achieve quality educa-
tion than in another because of, e.g.,
transportation costs, building maintenance
costs, construction costs, logistic con-
siderations, number of pupils with special
problems, et cetera. However, it is not a
problem that cannot be solved, challenging
though it might be.

4/ The most significant provisions are:

Sec. 1-37-1102, W.S.1977:
"Courts of record

within their respec-

tive jurisdictions may

We will not deny the direction of the Act
that it be liberally construed and admini-
stered, particularly when there is a
question of great public importance as is
the one before us. Brimmer v. Thomson,
Wyo. 1974, 521 p.2d 574. Those statutes
empower the courts to grant relief of a
declaratory nature. We can only conclude
that the appellants’ complaint states a
claim on which relief can be granted.

declare rights, status
and other legal rela-
tions whether or not
further relief is or
could be claimed. No
proceeding is open to
objection on the ground
that a declaratory judg-
ment may be either affir-
mative or negative in
form and effect, and
such declarations shall
have the effect of a
final judgment."

Sec. 1-37-103, W.S.1977:
"Any person interes-
ted under a deed, will,
written contract or other
writings constituting
a contract, or whose rights,
status or other legal
relations are affected
by the Wyoming consti-
tution or by a statute,
municipal ordinance, con-
tract or franchise, may
have any question of con-
struction or validity
arising under the instru-
ment determined and obtain

Appellees assert that the complaint
lacks specificity in that it fails to
enumerate the statutes which it claims
to be in violation of the Wyoming Con-
stitution in that appellants contented
themselves with stating merely that the
"system" of financing public education
is in violation of the constitution.
Although it certainly may have been
better had the appellants been more de-
tailed in their allegations, we cannot
conclude that the complaint was so defi-
cient as to require dismissal, particu-
larly since we do not intend to be as
specific in our disposition as appellees
might wish. Whether the specificity
standard has been satisfied is to be
determined in terms of whether the plead-
ings give fair notice to the opposing
party. Harris v. Grizzle, Wyo. 1979,
599 p.2d 580.

a declaration of rights,
status or other legal
relations."

Sec. 1-37-107, W.S.1977:
"The enumeration in W.S.
1-37-103 through 1-37-106
does not limit or re-
strict the exercise of the
general powers conferred
in W.S. 1-37-102 in any
proceeding where declar-
atory relief is sought,
in which a judgment or
decree will terminate the
controversy or remove an
uncertainty."

A-10

We cannot ignore that appellees
demonstrated from the very beginning
their complete understanding of the
statutes that appellants complained of
and how those statutes contributed to
the ailments described in the complaint.
We can only conclude that the appellants’
use of the language "system" of financing
public education, under the special and
unique circumstances of this case, was
as plain and clear a reference to
statutes as if they had cited them by
chapter and section numbers, We have no
problem locating the pertinent constitu-
tional provisions and related statutory
sections; they are easily identifiable.
To urge us to decide otherwise would be
to ask us to stick our heads in the sand,

Appellees have asserted that each
of the named appellants lack standing
to sue under the circumstances presented
by this case. As defined in Black's
Law Dictionary, pp. 1260-1261, 5th ed.
(1979):

"Standing to sue doc-
trine. ‘Standing to sue’
means that party has sufficient
stake in an otherwise justi-
fiable controversy to obtain
judicial resolution of that
controversy. Sierra Club v.
Morton, 405 U.S. 727, 92 S.Ct.
1361, 1364, 31 L.Ed.2d. 636.
Standing is a concept utilized
to determine if a party is suf-
ficiently affected so as to in-
sure that a justiciable contro-
versy is presented to the court.
The requirement of 'standing'
is satisfied if it can be said
that the plaintiff has a legally

A-11

protectible and tangible
interest at stake in the
litigation. Guidry v.
Roberts, La. App., 331
So.2d 44,50. Standing is
a jurisdictional issue
which concerns power of
federal courts to hear
and decide cases and does
not concern ultimate
merits of substantive
claims involved in the
action. Weiner v. Bank
of King of Prussia, D.C.
Pa., 358 F. Supp. 684, 695.

"Standing is a require-
ment that the plaintiffs
“have been injured or been

threatened with injury by
governmental action com-
plained of, and focuses on
the question of whether

the litigant is the proper
party to fight the lawsuit,
not whether the issue it-
self is justiciable. Caro-
lina Environmental Study
Group, Inc. v. U. S. Atomic
Energy Comm., D.C.N.C., 431
F.Supp. 203, 218. Essence
of standing is that no per-
son is. entitled to assail
the constitutionality of an
ordinance or statute except
as he himself is adversely
affected by it. Sandoval
v. Ryan, Colo.App., 535
P.2d 244, 247."

Standing is a concept used to deter-
mine whether a party is sufficiently
affected to insure that a justiciable con-
troversy is presented tc the court.

A-12

67A C.J.S., Parties, Sec. 12, p. 662. It

is a necessary and useful tool to be used
by courts in ferreting out those cases
which ask the courts to render advisory
opinions or decide an artificial or
academic controversy without there being

a palpable injury to be remedied. However,
it is not a rigid or dogmatic rule but

one that must be applied with some view

to realities as well as practicalities.
Standing should not be construed narrow-
ly or restrictively. Wisconsin's Environ-
mental Decade Inc.. v. Public Service
Commission of Wisconsin, 1975, 69 Wis.2d l,
230 N.W.2d 243, 249. Further, as said in
Residents of Beverly Glen, Inc. v. City

of Los Angeles, 1973, 34 Cal.App.3d 117,
109 Cal.Rptr. 724,727:

"In recent years
there has been a marked
accommodation of formerly
strict procedural require-
ments of standing to sue
(citation) and even of
capacity to sue (citation)
where matters relating to
the ‘social and economic
realities of the present-
day organization of society'
(citation) are concerned.
Accordingly, we have seen
a retreat from * * *
formalism and rigidity* * *."

The appellants in this suit are three
school districts and the school board
members of those districts, 5/ the school
board members as taxpayers and as parents
of children attending the school districts
and several students who attend schools in

5/ One of these school districts and its

A=-13

Washakie County School District Number
One.

Educating the youth of our state is
an important function performed by our
state government. Our constitution, as
we shall see, plainly expresses the commit-
ment of a free people to the value of a
thorough education. The school districts
and the members of school boards are
charged with the responsibility of pro-
viding education to the children of Wyo-
ming and are tangibly injured if the
statutes which guide their hands disen-
able them from so providing. Parents
are keenly concerned and suffer tangi-
ble injury if their children themselves
are,obviously, tangibly injured if they
do not uniformly receive the best educa-
tion that tax resources can provide.
With these considerations in mind, we
hold that each of the named appellants
has standing to sue under the circum-
stances of this case.

Appellees asserted that the question
presented by the declaratory judgment
action does not present a justiciable con-
troversy and is essentially a political
question that can and must be answered

board members, which was a plaintiff
(appellant) below, did not join in this
appeal, but that does not affect the
issues. Their interests neither add to
nor detract from the interests of appell-
ants nor are they necessary to an adjudi-
cation.

A-14 \

only by the legislature. We agree that
the legislature must act; but, as shall
be made clear as we proceed, it must
enact .ax legislation to support public
schools consistent with the spirit and
letter of the Wyoming Constitution. This
question of justiciability is closely tied
to those we have answered abcve. We
concede that the issues raised in a de-
claratory judgment action must constitute
a justiciable controversy. The criteria
which qualify a justiciable controversy
are set out in Brimmer v. Thomson, supra,
521 P.2d at 578, quoting from Sorenson v.
City of Bellingham, 80 Wash.2d 547, 496
P.2@ 512, Si7s

=a, © ° Piset, &@
justiciable controversy
requires parties having
existing and genuine, as
distinguished from theo-
retical, rights, or in-
terests. Second, the
controversy must be one
upon which the judgment
of the court may effec-
tively operate, as dis-
tinguished from a debate
or argument evoking a
purely political, admin-
istrative, philosophical
or academic conclusion.
Third, it must be a con-
troversy the judicial
determination of which
will have the force and
effect of a final judg-
ment in law or decree in
equity upon the rights,
status or other legal
relationships of one or
more of the real parties

A-15

in interest * * *,
Finally, the proceedings
must be genuinely adver-
sary in character and not
a mere disputation, but
advanced with sufficient
militancy to engender a
thorough research and
analysis of the major
issues.* * *°*

We find each of these qualifications to
be met in the instant case. Nonetheless,
we point out that in declaratory judgment
actions there is a well-recognized excep-
tion that the rule requiring the exis-
tence of justiciable controversies is
somewhat relaxed in matters of great
public interest or importance. Brimmer,
Supra, 521 P.2d at 578. We have already
made clear our view and will amplify on
it, that the matter of education involves
a fundamental interest of great public
importance. This is no more a political
question than any other challenge to the
constitutionality of statutes. Declar-
ing the validity of statutes in relation
to the constitution is a power vested in
the courts as one of the checks and
balances contemplated by the division

of government into three departments--
legislative, executive and judicial--
ever since first enunciated in Marbury

v. Madison, 1803, 5 U.S. (1 Cranch) 137
and carried forward into Wyoming state
government by Sec. 1, Art. II, Wyoming
Constitution.

Appellees assert that all taxpayers
in this state had to be served in order

A-16

to comply with Sec. 1-37-113, W.S.1977.6/
We do not agree. A summons and copy of

2 complaint were served upon the
Attorney General of the State of Wyoming.7/
This was in compliance with the statute,
Sec. 1-37-113, W.S.1977. Also see, 12
Uniform Laws Annotated, Declaratory Judg-
ments Act, Sec. 11; and Annotations, 71
A.L.R.2d 723. There is no merit to the
claim that appellants’ complaint should
have been dismissed for failure to name
all taxpayers as defendants. Such a re-
quirement would be a departure from reason.

6/ Sec. 1-37-1113, W.S.1977:

"When declaratory
relief is sought, all
persons shall be made
parties who have or claim
any interest which would
be affected by the declar-
ation, and no declaration
shall prejudice the rights
of persons not parties to
the proceeding. In any
proceeding which involves
the validity of a municipal
ordinance or franchise, the
municipality shall be
made a party and may be
heard. If the statute,
ordinance or franchise is
alleged to be unconstitu-
tional, the attorney gen-
eral of the state shall be
served with a copy of the
proceeding and may be heard."

7/ The appellees named in the complaint
(appropriate substitutions have been made to
account for changes to officeholder and
committee membership) are the Governor

A-17 |

Finally, the appellees assert that
the motion to dismiss was properly granted
because the appellants did not seek a
proper remedy. The appellants asked as
their remedy that the Wyoming system of
public school financing be declared un-
constitutional and that the courts retain
jurisdiction over the controversy, stay-
ing the declaration and delaying further
remedy until the Wyoming legislature
shall next again meet. Appellants may
not be entitled to the exact relief
they requested, but their complaint was
not subject to dismissal because of the
prayer for relief. The appellees cited
no authority nor have we uncovered any
which would require the dismissal of
appellants’ complaint on this ground.
Indeed, as shall be further developed in
the course of this opinion, the demand
for relief is quite similar to that
granted by courts which have addressed
the question of unconstitutional public
school financing statutes, which we shall
cite.

We hold that the claim of plaintiffs-
appellants has been brought on solid
jurisdictional and procedural ground and
the controversy is ripe for decision.

of the State of Wyoming, Wyoming's
Superintendent of Public Instruction
and State Treasurer, all members of the
Wyoming State Board of Education, and
several school districts in which dis-
proportionate tax base wealth exists.

A-18

Courts have a duty to uphold the
constitutionality of statutes which the
legislature has enacted if that is at
all possible, and any doubt must be re-
solved in favor of constitutionality.
Witzenburger v. State, Wyo. 1978, 575
P.2d 1100, 1112; Lund v. Schrader, Wyo.
1971, 492 P2d 202, 206. Though the
Supreme court has the duty to give
deference to legislative pronouncements
and to uphold constitutionality when
possible, it is the court's equally
imperative duty to declare a legisla-
tive enactment invalid if it transgresses
the state constitution. Witzenburger,
supra, 575 P.2d at 1114. In our consi-
deration of this case, we have con-
sistently kept these basic principles
in mind to avoid a declaration of un-
constitutionality--but doubt is not
present.

This court has previously con-
sidered school financing in the State
of Wyoming and at that time recognized
that ad valorem taxes for school pur-
poses were not equalized, as required
by Sec. 28, Art. I, Wyoming Constitu-
tion.8/ Sweetwater County Planning
Committee for Organization of School
Districts v. Hinkle, Wyo. 1971, 491
P.2d 1234. That case will be referred
to as Hinkle where hereafter mentioned
in this opinion. The court there made
certain suggestions to the legislature
which were intended as a pare-bone
proposal for legislation intended to
divide equally amongst the school

8/ Section 28, Art. I, Wyoming Con-
stitution: "* * *All taxation shall be
equal and uniform." Our decision in

A-19

districts all funds derived from ad
valorem tax levies, as contemplated by
Sec. 28, Art. I, Wyoming Constitution.9/
We affirm the proposition that, as nearly
as practicable, funds derived from ad
valorem tax levies must be equally
divided amongst the school districts

of the entire state. The court indi-
cated that it had been considerably
influenced by the landmark case of
Serrano v. Priest, 1971, 5 Cal.3d 584,
96 Cal. Rptr. 601, 487 P.2d 1241, 41
A.L.R.3d 1187, a case which in general
held that a system of public school
financing which relies heavily on local
property taxes and causes substantial
disparities among individual school
districts in amount of revenue available
per pupil invidiously discriminates
against the students of the poor per-
sons and is invalid as a violation of
the due process clause of the Four-
teenth Amendment to the Constitution

of the United States and the equivalent
provision of the California Constitution.
We see nothing in our study to indicate

this case will not rest upon this consti-
tutional provision, though it undoubtedly
bears upon the total constitutional
picture of taxation with respect to
public schools.

9/ The court excluded from consideration
funds derived from the six-mill state
levy; motor vehicle fees; fines and
forfeitures; Forest Revenue; Land Income;
Taylor Grazing and all state and federal
funds not derived from ad valorem taxes
levied at the county level.

A-20

that, in this state, poor persons or
the children of poor persons are
affected any differently than the
children of persons in more affluent
circumstances. All children in some
districts are deprived. This situation
does not divest the above-cited case of
its soundness or applicability to the
situation we have in Wyoming.

Violation of the Fourteenth Amend-
ment of the U. S. Constitution as a ground
for invalidating state systems of school
finance has lost any viability since the
decision of the United States Supreme
Court in San Antonio Independent School
District v. Rodriquez, 1973, 411 U.S. l,
93 S.Ct. 1278, 36 L.Ed.2d 16, which
held that the Texas system had no federal
constitutional flaws in that the right
to education is not explicitly or im-
plicitly guaranteed by the terms of the
United States Constitution. We find
no need to dwell on Rodriquez any fur-
ther because the decision we reach will
be based on the provisions of the
Wyoming Constitution, which is the
authority we are governed by in this
case,

This court retained jurisdiction in
the Hinkle case for a "final decision
after the next regular session of the
legislature and for whatever further
orders or disposition may be necessary
in the meantime." In February, 1972,
the court relinguished jurisdiction to
permit the parties to settle their
differences. In closing the case, this
court declared that while it could no
longer ignore inequalities in the
matter of taxation for school purposes,
nothing could be done until the legis-
lature convened and thereafter some

A-21

adversely affected taxpayer could maintain
an action on the question of invidious
discrimination if it still existed after
the legislature had convened and adjourned.
Hinkle, supra, upon reopening, Wyo. 1972,
493 P.2d at 1050. The filing of this
lawsuit breathed new life into that
controversy and the determination of

this court to provide a suitable remedy

to this problem,

In a later case, where a considera-
tion of the financing of schools within
a county was at issue, this court recog-
nized the serious nature of the disparity
in assessed valuation per pupil and
referred to students as "victims" when
located in school districts having a low
valuation ratio as compared to school
districts having a high valuation ratio.
In that case, the forecast of Hinkle
that the problem of unequal assessed
valuation may necessarily become the
subject of statewide action was rea-
ffirmed and it was announced that this
court cannot ignore that courts of other
states have held students are denied
equal protection 10/ when the disparity
of valuation becomes too great. Johnson
v. Schrader, Wyo. 1973, 507 P.2d 814.

10/ Equal protection is granted by Sec.
34, Article 1, Wyoming Constitution
wherein it is provided "All laws of a
general nature shall have a uniform
operation." Nehring v. Russell, Wyo.
1978, 582 P.2d 67.

A-22

Both Hinkle and Johnson involved
a consideration of the Wyoming School
District Organization Law of 1969,
Sec. 21-5-101, et seq., W.S.1977 (as
amended) (Sec. 105 through 150, ch.
111, Session Laws of Wyoming, 1969),
which had as one of its purposes to
“provide a wiser and more efficient
use Of public funds for education by
making it possible to reduce the dis-
parity in per pupil valuation among
school districts." Disparity was
thus obviously a problem which the
legislature was aware of and with
which it was attempting to grapple.
In view of its stated goal, the
difficulty with that legislation is
that it was not far reaching enough
because, even if successful, it could
only effect a reduction in disparity
between school districts within each
county. In 1971, when Hinkle was
first decided, the disparity between
counties was apparent. See appendix
to opinion, Hinkle, supra, 491 P.2d
at 1240-1250. It was apparent in the
Johnson case as well. It is still
apparent and has steadily grown even
more imbalanced. It is an intricate
unsettled question of statewide pro-
portions. The question of inequality
in school financing has been smolder-
ing too long. The continuing dispute
must be settled.

What is Wyoming's constitutional
design of educational responsibility?
"The legislature shall provide for the

establishment and maintenance of a com-

plete and uniform system of public
instruction, embracing free elementary

schools of every needed kind and grade,

* * *," (Emphasis added.) Section l,

A=-23

Art. VII, Wyoming Constitution.

"The general supervision of the public
schools shall be entrusted to the state
superintendent of public instruction,
whose powers and duties shall be pre-
scribed by law." Section 14, Art. VII,
Wyoming Constitution. These and other
constitutional expressions should leave
no doubt that the legislature has com-
plete control of the state's school
system in every respect, including
division of the state into school
districts and providing for their fi-
nancing. The legislature's powers are
subject only to restrictions on discrim-
ination on account of sex, race or color,
Sec. 10, Art. VII; prescribing textbooks,
Sec. II, Art. VII; and, sectarianism,
Sec. 12, Art. VII. The matter of pro-
viding a school system as a whole and
financing it is a responsibility of

the legislature.

Financing of schools is assured by
a broad spectrum of resources. With
statehood came a grant by Congress of
sections sixteen and thirty-six of each
township in the state or in-lieu lands.
Those lands and other miscellaneous prop-
erty acquired by the state are held in
trust as a "general school fund" and the
annual income arising from the property
is devoted exclusively to the support
of free schools "in every county" in the
state. Sections 2-8, Art. VII, Wyoming
Constitution.

Under constitutional taxing author-
ity there are several provisions:

A-24

1. A state tax
for the support of
schools: six mills on
the dollar of the as-
sessed valuation of the
property in the state
may be levied each year.
Section 15, Art. XV,
Wyoming Constitution.

2. A mandatory
county tax for the
support of schools of
twelve mills on the
dollar must be levied
each year on the as-
sessed valuation of the
property in each county.
The proceeds are distri-
buted among the school
districts within the
county as the legisla-
ture shall provide.
Section 17, Art. XV,
Wyoming Constitution.

3, A part of
county revenue from an
annual tax levy of not
to exceed twelve mills
on the dollar "for all
purposes including gen-
eral school tax, exclu-
Sive of state revenue."
Section 5, Art. XV,
Wyoming Constitution.

4. An apparent un-
limited power whereby
the legislature shall
make such further pro-
visions "by taxation or
otherwise, as with the

A-25

income arising from the
general school fund
(trust income) will cre-
ate and maintain a thor-
ough and efficient system
of public schools, ad-
equate to the proper
instruction of all youth
of the state, between
the ages of six and
twenty-one years, free
of charge; * * *,"
(Emphasis added.)
Section 9, Art. VII,
Wyoming Constitution.

Implementing the constitutional pro-
visions are various statutes. The six
mill state levy provided by Sec. 15, Art.
XV, Wyoming Constitution is covered by
Sec. 21-13-303, W.S.1977. The legislature
provides a formula for levying less than
a six mill state tax. The funds accrued
are placed in a trust fund and cannot be
transferred to any other fund or account.
The money generated is transferred into
the foundation program account, which
we shall describe.

The twelve mill county tax for school
support prescribed by Sec. 17, Art XV,
Wyoming Constitution is regulated by Sec.
21-13-201, W.S.1977. The county trea-
surer collects the tax and:

"(b) On or before
September 1 of each year,
the state department of
education shall notify
the treasurer of each
county of the percen-
tage proportion to be
allocated from the county-

A-26

wide twelve (12) mill
school levy to each school
district in his respec-
tive county. The compu-
tation of the distribu-
tion of the countywide
twelve (12) mill levy
shall be made by the
department of education
on the basis of the
number of classroom
units for the previous
year, as that number is
computed in W.S.
21.1-231 (Sec. 21-13-308).
(11/) This number, for
each district, is to be
converted into a per-
centage of the total
number of classroom
units for all school
districts within the
county. The county
treasurer shall dis-
tribute the revenue
arising from the county-
wide twelve (12) mill
levy among the school
districts of the county
according to the per-
centage computed above,
and pursuant to W.S.
21.1-223 (Sec. 21-12-207.)"
(Footnote added.)

This statute is a part of the com-
plex system of distribution of funds under
the foundation program, which we shall dis-
cuss at various points in this opinion.

The foundation program provides a signif-
icant balancing factor in school financ-
ing, but it can only go so far.

A-27

The share of the general county tax
for all county purposes, as a general
school tax, as provided by Sec. 5, Art. XV,
Wyoming Constitution, is limited by
Sec. 21-13-205, W.S.1977, to not exceed
three mills on the dollar, sufficient
to raise $300.00 for each teacher and
an amount for each school bus driver
computed according to the formula set
out in Sec. 21-13-202, W.S.1977.

In addition to the foregoing, and
apparently justified under the general
terms of Sec. 9, Art. VII, Wyoming Con-
stitution, Sec. 21-13-101, W.S.1977, pro-
vides for a school district tax:

"(a) Except as
otherwise provided by law,
the maximum rate of
school district tax
that may be levied for
all school purposes,
exclusive of bond in-
terest and redemption,
for any school district
in any school year on
each dollar of assessed
valuation within the
school district is as
follows:

"(i) In a unified
school district, twenty-
eight (28) mills for
combined elementary and
high school purposes,
three (3) mills of which
shall not be levied ex-
cept with the approval
of a majority of the
voters voting on the
proposition;

A-28

"(ii) Any elementary
nonunified school district,
sixteen and eight-tenths
(16.8) mills for elemen-
tary school purposes,
one and eight-tenths
(1.8) of which shall not
be levied except with
the approval of a
majority of the voters
voting on the proposi-
tion, plus not to ex-
ceed an additional five
(5) milis for tuition to
be expended for high
school students from
the district."12/

This will be referred to in this opinion
as the "Special District Levy." There
is no specific authority for this tax

in the state constitution such as in the
case of the state tax, the county tax
for schools and the general county tax.

At this point, the Wyoming School
Foundation Program 13/ should be briefly
discussed. Its intent is to guarantee a
minimum education for every child by
providing state financial assistance in
inverse proportion to the tax paying
ability of the local school district.

12/ All school districts have now been
unified. As amended by Sec. 1 ch. 119,
Session Laws of Wyoming, 1979.

13/ Sections 21-13-305 through 21-13-314,
W.S.1977.

A-29

In other words, where local resources are
high in some cases, little or no founda-
tion funds are paid by the State to the
district. Schools that raise relatively
large amounts of money through property
taxation receive considerable less
support, if any, from the Foundation Fund
than those districts where a comparable
levy raises a smaller amount of money.

If a district's assessed valuation--

its tax base-- is relatively high, it is
able to raise enough money to go be-

yond the foundation program, whereas
another district with low assessed valu-
ation cannot increase its revenues to
such a level even by taking advantage

of all available local taxes.

The money apportioned to the schools
from the Foundation Fund has several
sources. In the Foundation Fund are
placed all state moneys for elementary
and secondary education, Sec. 21-13-306,
W.S.1977, except the Land Income Fund
which, by Sec. 21-13-301, W.S.1977, must
be distributed among the counties accord-
ing to the number of pupils in each, as
determined by statutory direction.14/

See also, Sec. 21-13-301 and 21-13-302,
W.S.1977, as amended. The six mill

state levy on property, including motor
vehicle registrations, is a Foundation

14/ Section 8, Art. VII, Wyoming Con-
stitution originally read the same as

the statute cited. Section 8 was amended
by resolution adopted by the 1978 legis-
lature, ratified by vote of the people

at the 1978 general election, and pro-
claimed in effect on November 25, 1978.
It now provides "for the equitable
allocation of such income among all

A-30

Fund primary source, but, in addition,
the legislature appropriates money from
the State's general fund. In 1978,
$26,750,000 was appropriated from the
general fund, Sec. 15, ch. 42, Session
Laws of Wyoming, 1978, for the period
July 1, 1978 and ending June 30, 1980.

The foundation program is intended
to take into account not only a basic
education but also to consider excep-
tional and handicapped children, voca-
tional training, kindergarten, the
problems of a one-teacher rural school,
bus transportation, tuition paid by
one district to another, other variables
and supplemental aid for those districts
with less than the minimum assessed
valuation per classroom unit.15/

school districts in the state." This
income could now conceivably be included
in the foundation program, but apparently
the legislature meeting in 1979 did

not take any action as a result of the
amendment, other than refer to Average
Daily Membership rather than according

to number of pupils. For all practical
purposes, ADM and number of pupils are
the same.

15/ For an excellent description and de-
tailed discussion of the foundation pro-
gram, see, The Wyoming School Foundation
Program, published by the State Depart-
ment of Education, 1976, found in the
Wyoming State Library.

A-31

The sources to pay the cost of
education in Wyoming for 1977-1978 is
illustrated and clarified by the follow-
ing table and pie taken from the Statis-
tical Report Series No. 3, Wyoming Public
Schools Fund Accounting and Reporting,
1977-78, published by the Division of
Planning, Evaluation and Information
Services, State Department of Education,
Page 1: 16/ +

16/ This court may take judicial notice
of the official reports of the State
Department of Education, Hinkle, supra,
491 P.2d and 1237. This particular
tabulation and illustration will be re-
ferred to as Table 1. The statistics
we will use in this opinion cover the
period in question and are on file in
the Wyoming State Library. Complete
1979 statistics are not yet available.

A=-32

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A-33

In this opinion we will consider for
the most part the property tax sources of
income for schools. There are other
sources of income for the various school
districts such as fines and forfeitures
paid to the county treasurers pursuant
to Sec. 5, Art. VII, Wyoming Constitution;
17/ gifts, Sec. 3, Art. VII, Wyoming
Constitution, and Sec. 21-13-403, W.S.
1977; federal aid and grants, Sec. 21-13-
401 through 21-13-403; and miscellaneous
receipts as shown by the foregoing Table
No. 1. The principal source of local
school support comes from property taxes
raised by mill (1/1,000th of one dollar
or 1/10th of a cent) levy on each dollar
of assessed valuation. It is this latter
source, wherein originates the dis-
parity and constitutional fault. Were
all counties and school districts
blessed with equal assessed property
valuations within their boundaries
with each having the same student popu-
lation, there would be no problem; but
it is common knowledge that such a
phenomenon is not possible and statisti-
cal information bears that out. Even
superficial reflection upon the system
outlined above reveals that it will in-
herently create disparity. Nonetheless,
that disparity must be demonstrated.

17/ Section 5, Art. VII, Wyoming Con-
stitution:

"All fines and penalties
under general laws of the
state shall belong to the
public school fund the re-
spective counties and be
paid over to the custodians
of such funds for the current
support of the public schools
therein."

A-34

There were fifty school districts
in the State of Wyoming at the time this
litigation was initiated. From the
Statistical Report Series, No. l, 1978
School District Property Valuations,
Mill Levies and Bonded Debt, a report
prepared by the Division of Planning,
Evaluation and Information Services,
State Department of Education, pages 6,
7 and 8 shows the wide range of assessed
valuation per student and the various
levies in all districts: 18/

18/ We will refer to this as Table 2
in this opinion.

A-35

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A- 36

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A-37

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A-38

The tremendous variation in assessed
valuation and the amount available per
student in each school district is
dramatically illustrated by the follow-
ing statistics 19/:

19/ Statistical Report Series No. 1, 1978
School District Property Valuations, Mill
Levies and Bonded Debt, Division of Plan-
ning, Evaluation, and Information, State
Department of Education, pages, 1-3. We
will refer to this as Table 3.

A-39

3

TABLE NO.

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A-42

As will be noted, the assessed valu-
ation per student in school districts
varies from $209,543 to $10,899, (School
Districts 27 and 38, Fremont County,
were excluded from consideration because
of unaccounted contributions from the
tribes and Bureau of Indian Affairs)--

a ratio of over 21 tol. The state
average is $35,399 per student.

The state's foundation program
does not adequately equalize the amounts
available to Wyoming districts. As
indicated in Table 2, supra, all school
districts, with few exceptions, are re-
ceiving the maximum taxes that can be
realized from authorized levies, other
than from the general county levy.

Even so, the statistics revealed by
Statistical Report Series Nos. 1 (pages
1, 2, and 3 (Table 3)) and 3, Wyoming
Public Schools Fund Accounting and Re-
porting, 1977-78, State Department of
Education, pages 8 and 9, attached as
Appendix A, the poor districts show a
consistent pattern of less total revenue
per student than the rich districts
based on assessed valuation per student.
For example, using the school district
parties to this action:

Assessed Total

Value Per Revenue Per

District Student Student
Plaintiffs
Washakie No. l $19,446 $1,610
Uinta No. 6 11,171 1,770
Fremont No. 25 21,501 1,697
Defendants
Park No. 16 209,543 4,326
Campbell No. l 108,438 3,299
Converse No. l 83,190 2,845
Hot Springs No. 1 91,014 3,033
Carbon No. 2 79,469 2,609
Sublette No. 9 87,994 3,099
Sweetwater, No. 1 77,609 2,502
Lincoln No. l 74,022 2,303

A-43

>

The foregoing are impressive but
the complete tabulation for all counties
and districts shows that the property-
richer school districts uniformly have
more revenue per student that the
property-poorer ones:

A-44

COUNTY Assessed Vai. Total Revenue 22/
District Per Pupil s4385g
tea feael [esvpag [Wsapag 930s ots Aaune) kyune9 yvou4 {ese}
6

81-1264 JDUNOS AB NOV Y3d SINNZA3Y ONNA WYINID

A-65

APPENDIX B

IN THE SUPREME COURT, STATE OF WYOMING
OCTOBER TERM, A.D. 1979

FEB. 7-1980

WASHAKIE COUNTY SCHOOL DISTRICT NUMBER
ONE, DONNA MOBERLY, MARY JANE SCHMELTZER,
RANDALL RIDEOUT, HAROLD McDONALD, HARRY
UJIFUSA, ROBERT MOODY and JAMES ARGERIS,
being all of the members of THE BOARD

OF TRUSTEES OF WASHAKIE COUNTY SCHOOL
DISTRICT NUMBER ONE; MARY JANE SCHMELTZER
as next friend for CHRISTOPHER SCHMELTZER,
JOE SCHMELTZER, and FRANCES SCHMELTZER,
minors; RANDALL RIDEOUT as next friend
for JASON RIDEOUT, ANTHONY RIDEOUT, and
MICHAEL RIDEOUT, minors; HAROLD McDONALD
as next friend for KEVEN McDONALD,

KEITH McDONALD, DAVID McDONALD, KENNETH
McDONALD, and BRIAN McDONALD, minors,
HARRY UJIFUSA as next friend for KELLY
UJIFUSA and GAYLE UJIFUSA, minors;
ROBERT MOODY as next friend for TODD
MOODY, SHERRI MOODY, CINDY MOODY, JOHN
MOODY, AL MOODY, AND SCOTT MOODY,
minors; and JAMES ARGERIS as next friend
for JAYME ARGERIS, TAWN ARGERIS, and
BRETT ARGERIS, minors; UINTA COUNTY
SCHOOL DISTRICT NUMBER SIX, G. GRANT
REDDEN, CLINT WALKER, F. DANNY EYRE,
DONALD R. CARROLL and CURTIS MORGAN,
being all of the members of THE BOARD

OF TRUSTEES OF UINTA COUNTY SCHOOL
DISTRICT NUMBER SIX, FREMONT COUNTY
SCHOOL DISTRICT NUMBER 25, DENNIS
TIPPETS, L. J. GERAUD, PATRICIA B.
FERRIS, ALICE KUCERA, STANLEY SMALLEY,
and THOMAS YOUTZ, being all of the mem-
bers of THE BOARD OF TRUSTEES OF FREMONT
COUNTY SCHOOL DISTRICT NUMBER TWENTY
FIVE, and ALBERT B. SCHULTZ,

Appellants
(Plaintiffs),

B-1

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Ve No. 5145

ED HERSCHLER, Governor, State of Wyo-
ming, LYNN SIMONS, State Superintendent
of Public Instruction, SHIRLEY WITTLER,
Wyoming State Treasurer, JOHN PATTON,
KEITH WEST, DR. DENIS LYMAN, BARBARA
ROGERS, KEITH BECKER, REDELL HOOPER,
KAREN HAND, DR. DONALD BLAKESLEE, GLENN
ENGLEKING, being all of the members of
the WYOMING STATE BOARD OF EDUCATION,
PARK COUNTY SCHOOL DISTRICT NUMBER SIxX-
TEEN, CAMPBELL COUNTY SCHOOL DISTRICT
NUMBER ONE, CONVERSE COUNTY SCHOOL DIS-
TRICT NUMBER ONE, HOT SPRINGS COUNTY
SCHOOL DISTRICT NUMBER ONE, CARBON
COUNTY SCHOOL DISTRICT NUMBER TWO,
SUBLETTE COUNTY SCHOOL DISTRICT NUMBER
NINE, SWEETWATER COUNTY SCHOOL DISTRICT
NUMBER ONE, and LINCOLN COUNTY SCHOOL
DISTRICT NUMBER ONE,

Appellees
(Defendants).

ORDER DENYING REHEARING AND

RESPONDING TO REQUESTS FOR CLARIFICATION

The court after examination and study

of the petitions for rehearing concludes
1. The opinion and decision of the

court was implicit in its language,

particularly ir fixing of a date for

future compliance that it was prospective

in operation and not intended to disturb
present statutory provisions for financ-
ing of school operations, including
bonded indebtedness.

2. Because of previous holdings of
this court dating back to 1971 which
clearly enunciated inequity in school
financing, an opportunity for reform has

de de ee ee

been available. Sweetwater County Plan-
ning Committee for Organization of School
Districts v. Hinkle, Wyo. 1971, 491 P.2d
1234 and Johnson v. Schrader, Wyo. 1973,
507 P.2d 814. The court's decision
herein again finds unconstitutional the
state's system of school financing in
failing to provide equal protection in
violation of Sec. 34, Art. I, Wyoming
Constitution, compatible with Sec. I,
Art. VII, Wyoming Constitution, re-
quiring a "uniform system of public in-
struction." Undue delay in implementing
the court's decision would only be
doing a disservice to the educational
needs of the state with respect to fin-
ancing. However, upon reconsideration,
it appears advisable that the time for
compliance with the court's direction
be extended for a further brief period.
3. Other than a consideration of
and accommodation to possible bonding
impediments that are conceived to exist
along with an extension of time for com-
pliance, which will not anywise alter
the thrust of the court's decision here-
tofore made, we find that all other
questions raised by the petitions for
rehearing have already been considered
and resolved within the court's opinion.

It is therefore

ORDERED that the relief granted and
direction of the court's opinion handed
down on January 15, 1980, are prospective.

FURTHER ORDERED that the time in
which to convert to constitutional com-
pliance be, and is, extended to July l,
1983.

FURTHER ORDERED that the school
system of the state of Wyoming continue
under existing statutes; and the validity
and enforceability of past and future

*%

acts, bonded indebtedness and obliga-
tions incurred under applicable statutes,
as long as they are in force and effect,
are assured.

FURTHER ORDERED that the judgment
of the district court, made and entered
on the mandate, be consistent with this
order.

FINALLY ORDERED that the petitions
for rehearing be and are denied, except
as otherwise in this order provided.

February 7 , 1980.

By the Court
JOHN F. RAPER

JOHN F. RAPER
Chief Justice

APPENDIX C

IN THE DISTRICT COURT OF HOT SPRINGS
COUNTY, WYOMING

WASHAKIE COUNTY SCHOOL DISTRICT )
NUMBER ONE, ET AL, )
Plaintiffs, )
-vs- CIVIL NO. 6770 )
ED HERSCHLER, ET AL, )
Defendants. )

JUDGMENT AND ORDER

This matter having come before the
Court upon and after a decision of the
Wyoming Supreme Court rendered on Jan-
uary 15, 1980, mandate having issued
from that Court, IT IS, hereby, the
holding and ORDER of this Court, that:

1. The Order of Dismissal entered
herein on May 3, 1979, which was the
subject of an appeal to the Wyoming
Supreme Court, is hereby vacated.

2. The Wyoming system of financing
public education is hereby declared
unconstitutional, in that it fails to
afford equal protection in violation of
the Wyoming Constitution. The relief
granted herein, and the direction of
the opinion of the Wyoming Supreme Court
shall be prospective.

This matter is referred to the
Wyoming State Legislature for the con-
version of the present system of financ-
ing public education in the State of
Wyoming to a system in conformity with
the Wyoming Constitution and the sense

C-1

of the decision of the Wyoming Supreme
Court. It is considered and ordered
that this conversion be in effect and
underway not later than July l, 1983.
4. It is FURTHER ORDERED that
the school system of the State of Wyo-
ming continue under existing statutes;
and the validity and enforceability of
past and future acts, bonded indebted-
ness and obligations incurred under
applicable statutes, as long as they
are in force and effect, are assured.
5. This Court shall retain ju-
risdiction over this cause until a
constitutional body of legislation is
enacted and in effect, and for the
further purpose of taking such action
as may be necessary to assure conform-
ity to the decision of the Wyoming
Supreme Court.
DONE this a3 day of March, 1980.

Joseph F. Maier, Judge
Joseph F. Maier, Judge
April 1, 1980
CERTIFIED A TRUE COPY

Pe Rushin
otek of Court

Deputy

APPENDIX D

STATE OF WYOMING )
) ss
COUNTY OF HOT SPRINGS )

IN THE DISTRICT COURT
FIFTH JUDICIAL DISTRICT
Civil No. 6770

WASHAKIE COUNTY SCHOOL
DISTRICT NUMBER ONE,
et al.,

)

)

)

)
Plaintiffs, )
: )
V. )

)

ED HERSCHLER, et al., . )
)

Defendants. )

ORDER GRANTING MOTIONS
TO DISMISS

THIS MATTER HAVING COME before the
Court on the motion of all Defendants to
dismiss the Complaint herein and the
Court having considered the memoranda
of the parties in support of and in
opposition to said motions, and having
heard oral arguments of counsel thereon,
and being fully advised in the premises;

IT IS HEREBY ORDERED that the mo-
tions to dismiss of the Defendants and
each of them should be and hereby is
granted, and that the Complaint in the
captioned matter is hereby dismissed.

DATED this 3 day of May , 1979.

Joseph F. Maier, District Judge

APPENDIX E

IN THE SUPREME COURT
STATE OF WYOMING

WASHAKIE COUNTY SCHOOL
DISTRICT NUMBER ONE, et al,

Appellants,
vs. No. 5145

ED HERSCHLER, et al,

eee eee ee eee

Appellees.

PETITION FOR REHEARING

The Appellees, Hot Springs County
School District No. 1, and Sublette
County School District No. 9 petition
the Court for rehearing the above en-
titled matter for the following reasons:

1. Appellees have been denied due
process and a fair hearing.

2. A factual hearing is required
to determine whether the findings of
fact and conclusions of law can be
supported and,

a. Such hearing is guaranteed by

the Statutes and Rules of Wyoming

and required for procedural due
process.

b. If there is a justicible con-

troversy, such hearing is required.

c. Such hearing is required by the

Declaratory Judgment Act under which

this action was brought and decided.

3. The Supreme Court lacks juris-
diction to render such a decision or
judgment on evidence originally intro-
duced in the Supreme Court without offer
by any party or opportunity of any party
to rebut or cross examine.

4. The present decision lacks ad-
equate standards and guidelines for
compliance therewith and is indefinite
and vague.

5. The constitutional questions
have been decided without being fully
presented and argued, in contravention
of all previous decisions of this Court.

6. The decision as it now stands
has effectively stopped all bonded in-
debtedness financing by school districts
within Wyoming and has jeopardized the
holders and value of all existing bond
issues, thereby stopping nearly all
school construction.

7. The decision as it now stands
has declared unconstitutional all school
tax levies and most other sources of
revenue, thereby jeopardizing the con-
tinuation of all public eduction with-
in the State of Wyoming, including
even that of Appellants.

DATED this 28th day of January, 1980.
ROSS D. COPENHAVER

OF ROSS D. COPENHAVER, P.C.
Attorney for Appellees, Hot
Springs County School District
Number One and Sublette County
School District Number Nine
Box 839, Powell, WY 82435

APPENDIX F

BRIEF OF POINTS AND AUTHORITIES

I

APPELLEES HAVE BEEN DENIED DUE PROCESS
AND A FAIR HEARING.

"Due process of law does not mean
according to the whim, caprice or
will of a judge. . . It means accord-
ing to law. . . It shuts out all
interference not according to
established principles of justice,
one of them being the right and
opportunity for a hearing: to cross
examine, to meet opposing evidence,
and to oppose with evidence...
Judicial absolutism is not a part

of the American way of life. The
odious doctrine that the end jus-
tifies the means does not prevail

in our system for the administra-
tion of justice. The power vested
in a judge is to hear and determine,
not to determine without a hearing.
When the constitution requires a
hearing, it. requires a fair one, one
before a tribunal which meets es-
tablished standards of procedure. . "
In Re Estate of Buckman, (Cal. 1954)
267 P2d 73, 47 ALR2d 291, 306.

Although Appellee school districts
are not persons for the purposes of due
process of law under the Fifth Amendment,
56 L.Ed.2d 895, 901, the state is a
"person" under statutory provisions. Anti-
Trust Laws, 56 L.Ed2d 895, 908; Internal
Revenue Code, 56 L.Ed.2d 895, 913. As
used in the Statutes of the State of
Wyoming, "person" includes a corporation
or any other entity, public or private.
W.S. 8-1-102.

7%

Appellee school districts are each a
body corporate. W.S. 21-3-101. Each of
them has authority to sue and be sued.
W.S. 21-3-111. This court in the instant
decision has stated:

"The school districts and the members
of school boards are charged with the
responsibility of providing education
to. the children of Wyoming and are
tangibly injured if the statutes
which guide their hands disenable
them from so providing."

And as such Appellees have a standing
and an interest in this action brought
against them by the Appellants and the
Statutes and Rules of Procedure of the
State of Wyoming would appear to govern
the rights and procedures to which these
Appellees are entitled and upon which
they can rely.

The statutes and rules governing this
matter include:

1. The Declaratory Judgment Act gives
a right to judicial determination

of issues of fact. W.S. 1-37-111.

2. The order of trial provided by
statute (and Appellees are even en-
titled to a jury determination of
factual issues if demanded and if
afforded an opportunity to make

such demand) would provide an oppor-
tunity to produce evidence and to
rebut the evidence of Plaintiffs

(and presumably any additional evi-
dence secured or admitted by the
court). W.S. 1-11-205.

3. Appellees should have the oppor-
tunity to present their defenses and
objections. WRCP, Rule 12.

4. A right to have the issues
tried by the court is provided by
Rule 39 WRCP.

5. The testimony of witnesses
should be taken orally in open
court. Rule 33, WRCP.

6. Appellees should have an oppor-
tunity to request a special findings
of fact. Rule 52, WRCP.

In addition to which any litigant, in-
cluding Appellees, should be afforded
all of the fundamental rules of due pro-
cess contemplated in common law.

The opportunity to be heard is a
fundamental requisite of due process of
law. 16A AmJur2d Constitutional Law,
Section 827, page 1014.

Although the Supreme Court has ack-
nowledged that a state is not a person
for the purposes of due process of law
of the Fifth Amendment, 16A AmJur2d
Constitutional Law, Section 826, page
1010; and a political subdivision is not
within the protection of the equal pro-
tection clause of the Fourteenth Amend-
ment against an act of the State Legis-
lature "in opposition to the will of.its
creator," Williams vs. Baltimore, 289
us 36, 77 Leeds 1015, 1020; and the
Amendment does not protect the State
itself, as against the acts of other
states. Pennsylvania vs. New Jersey,
426 US 660, 49 L.Ed.2d 124, 129; it
is respectfully submitted that the
legislature having given Appellee school
districts the full right to use of the
courts and the procedures therein,
such right "in accord with the will of
its creator" cannot be denied by the
courts, and such denial is a violation
of equal protection under both the
Fourteenth Amendment of the United

States Constitution, and Sections 8
and 34 of Article I of the Wyoming
Constitution.

The procedural due process provided
by the Statutes and Rules of Wyoming is
substantially the same as by decision
is granted to individuals under the
Fourteenth Amendment. The Court in
the instant decision has said that
Wyoming's Constitutional provision of
uniform operation of law is equivalent
to equal protection and is projected
to the school system of the state.

The procedural due process right of
a state were specifically recognized
by the court in State vs. Anderson,
(Minn.) 19 NW2d 70. The statute pro-
vided for a hearing and the court, at
page 74 said;

"We now hold that such right to

answer and to have a hearing at

which witnesses may be examined
and cross examined is the abso-
lute right of the state."

To judge in a contested proceeding
implies the hearing of evidence from both
sides in open court, a comparison of
the merits of the evidence, a conclu-
sion from the evidence of where the truth
lies, the application of appropriate laws
to the facts found and the rendition of
judgment accordingly. Manley vs. Georgia,
279 US 1, 73 L.Ed. 575, 578.

The right to present evidence is
essential to the fair hearing required
by the due process clause. Jenkins vs.
McKeithen, 395 US 411, 23 L.Ed.2d 404,
421. Due process of law is provided
when the party is given full opportunity
to present the questions of law and fact
in trial court with the right to reserve
questions for review and have them reviewed

*”*

by the appellate courts. All this is
provided for by law in an orderly adminis-
tration of justice. Life and Casualty
Insurance Company vs. Womack, (Ala.)

151 S. 880, S81; Minnesota vs. Sax,
(Minn.) 42 NW2d 68; 18 ALR2d 929, 940.

The provision for a hearing implies
the privilege of introducing evidence.
Baltimore & O.R. Co. vs. U.S., 264 US
258, 256, 68 L.Ed. 657, 674.

There is no hearing in the constitu-
tional sense where the party does not
know what evidence is offered or con-
sidered and is not given an opportunity
to protest, explain or refute. 16A
AmJur Constitutional Law, Section 848,
page 1058. The right under the Due
Process Clause to a full hearing inclu-
des the right of the party whose rights
are sought to be affected to introduce
evidence and have judicial findings
based upon it. Baltimore & O.R. Co.
vs. U.S., 298 US 349, 80 L.Ed. 1209,
1224.7

This Wyoming Supreme Court itself,
in Holm vs. State, 404 P2d 740, 744, has
stated:

"One of the most basic elements

of due process is the right of

each party to be apprised of

all the evidence upon which an

issue is to be decide, with

the right to examine, explain

or rebut such evidence. ..

and, the right to hear and

controvert all evidence upon

which a factual adjudication is

to be made, includes the right

to hear and cross examine

witnesses."

It is an elementary principle of due
process that if during a trial the court
sua sponte unearths a point of law which

F-5

Pe

is deemed decisive of the case, the
party against whom the decision impends
has the same right to be heard before
the decision as he has to produce evi-
dence on the issues of fact, and a
denial of such an opportunity deprives
him of due process. Moore vs. Cali-
fornia Mineral Products, (Cal.) 252
P2d 1005, 1007. The exclusion of com-
petent and relevant evidence on the
ground that the trial court was in po-
session of the evidence although it
was not in the record is not due pro-
cess. Minnesota vs. Sax, 42 NW2d 680,
18 ALR2d 929, 940.

Even in proceedings before admini-
strative agencies, the Due Process
Clause forbids an agency to use evidence
in a way that forecloses an opportunity
to offer a contrary presentation. 16A
AmJur2d Constitutional Law, Section 848,
pages 1061 and 1062.

The right to confront and cross
examine witnesses is a fundamental
aspect of procedural due process and
such right applies not only in criminal
proceedings, but also in noncriminal
proceedings, including administrative or
quasi judicial proceedings. Jenkins
vs. McKeith, 395 US 411, 23 L.Ed.2d 404,
421; Willner vs. Committee on Character
and Fitness, 373 US 96, 10 L.Ed.2d 224;
Wolff vs. McDonnell, 418 US 539, 41
L.Ed.2d 935.

In almost every setting where impcr-
tant decisions turn on questions of fact,
due process requires an opportunity to
confront and cross examine adverse wit-
nesses. Goldberg vs. Kelley, 397 US
254, 25 L.Ed.2d 3e7- 300. Denial of the
right to challenge matters set forth in
affidavits was denial of trial of issues
and procedural due process was lacking.

.

Collins vs. Superior Court of Los
Angeles County, (Cal.) 310 P2d 103
109-110.

II

A FACTUAL HEARING IS REQUIRED TO
DETERMINE WHETHER THE FINDINGS OF FACT
AND CONCLUSIONS OF THE COURT CAN BE
SUPPORTED.

1. A factual hearing is guaranteed
to appellees by the Statutes and Rules
Of Wyoming hereinabove identified and
is required by procedural due process
as hereinabove outlined.

2. If there is a justicible contro-
versy, a factual hearing is required.

This Court in the instant decision
in determining that the Appellants had
a standing to sue, declared that the
Appellants had a stake in an “otherwise
justicible controversy" and that such
standing was the concept used to insure
"that a justicible controversy is pre-
sented to the court." (Emphasis added).

e court conceded that there must
be a justicible controversy and found
each of the qualifications for a justi-
cible controversy to be met. The cri-
teria previously set forth in Brimmer
vs. Thompson, (Wyo. 1974), 521 P2d 574,
578, were reiterated. Such criteria
again cited, approved and adopted by the
court includes the following with empha-
sis added:

"Finally, the proceedings must
be genuinely adversary in
character and not a mere dis-
putation, but advanced with
sufficient militancy to engen-
der a thorough research an
analysis of the major issue."

This is consistent with previous de-
cisions of this court that the court will
not entertain jurisdiction unless a con-
troversy exists and there are parties
opposing each other therein. All of
which contemplates, and emphasizes the
importance previously attached by the
court to, a full and thorough presenta-
tion of issues of fact both sides of the
controversy.

Yet, the parties in this matter
have not yet been permitted to present
their controversy in a “genuinely ad-
versary"™ manner or "with sufficient
military to engender a thorough research
and analysis of the major issues."

3. A factual hearing is required
by the Declaratory Judgment Act.

"When a declaratory judgment
proceeding involves the deter-
mination of an issue of fact,
the issue may be tried and
determined as in other civil
actions." W.S. 1-37-11ll.

Appellees are not only entitled to
a judicial determination of issues of
fact, but are entitled to a determina-
tion by a jury if they should elect.
Holly Sugar Corp. vs. Fritzler, 42 Wyo
446, 474, 296 P. 206.

The Wyoming Court in the Holl
Sugar case also indicated that the
courts ordinarily will not entertain
jurisdiction unless a bona fide con-
troversy exists and there are parties
opposing each other therein. Holly
sugar Corp. vs. Fritzler, Supra, page

4. There are issues issues of fact
and conclusions found or assumed by
the court which are not supported by
evidence,

LC

Attached hereto as Exhibit "A" is
an Affidavit with Exhibits attached,
executed by George W. Cassell, Super-
intendent of Hot Springs County School
District No. 1. The Affidavit and the
Exhibits attached hereto clearly show
and illustrate that the educational
program offered by Appellants, Washakie
County School District No. 1 and Fre-
mont County School District No. 25,
and also that offered by Natrona County
School District No. 1, which has here-
tofore been designated a "poor" district
by the court are in each instance
greater and broader than the course
offerings which can be offered to their
students by Appellee, Hot Springs
County School District No. 1, and by
the "richest" school district, Park
County School District No. 16.

There is no evidence to show or
substantiate any assumed correlation
or relative relationship between ed-
ucational offering and wealth (as
measured by assessed valuation per
pupil).

It is a non-sequitur, to assume
that because there is not a relatively
uniform amount of money on an annual
per pupil basis that there is not an
equal educational opportunity; par-
ticularly when this court itself
recognizes that "More money may be
needed in one school district to achieve
quality education than in another
because of . . ." enumerating various
differentiating factors.

Although the Wyoming Constitution
May provide:

#%

“No tax shall be imposed without the
consent of the people or their
authorized representatives. All
taxation shall be equal and uniform."
Article I, Sec. 28, Wyoming Consti-
tution.

This clause has always been construed by
this court to apply only to the assess-
ment and levy of a tax upon the property
of the subdivision which makes the levy.
Nowhere is there previous authority or
evidence that it was the intent or de-
sire of the framers of this constitu-
tion that the "proceeds" or funds
derived from the tax must be distributed
or “equally divided", either within the
tax levying subdivision or throughout
the state. In fact, this court has
heretofore said that the people of one
municipality cannot be taxed for the
benefit of people in another munici-
pality. Tennant vs. Sinclair Oil &

Gas Co., 355 P2d 887, 889.

The tables and information obtained
and used by the court in this matter
show substantial uniformity in the
assessment and levy of taxes. The prin-
ciple variations are the result of levies
for payment of principal and interest on
bond issues - and, of course, it seems
illogical to exnect every school dis-
trict to require buildings at the same
time or to issue a proportional amount
of bonds whenever a debt is incurred
by another school district.

There is no evidence to support the
statement that:

"All children in some districts are

deprived."
nor, to show of what they are deprived.

There is no evidence to show or
indicate that any portion of the system
of public schools is not "thorough and

F-10

efficient."

There is no evidence to show or
indicate that the system of public
schools is not “adequate to the proper
instruction of all youth of the state."

The court recognizes the Wyoming
School Foundation Program, its equali-
zation effort and that the fund takes
into account many variables - including
primarily the property tax revenues of
each district. The court recognizes
that there are many variables by reason
of which more money may be needed in
one school district than in another to
achieve quality education. Yet, there
is absolutely no evidence that the
foundation fund does not achieve a
substantially equal, quality educational
program - or quality education - or
thorough and efficient system - in each
school district. There is only evidence
to show, by the statistics secured and
used by the court, that there is a
different quantity of money expended by
or available to the different school dis-
tricts.

There is no evidence to show the
results of the educational program in
any school district or that there is
any difference in such results as be-
tween the various school districts.

There is no evidence that the dis-
parity in funds available under the
Wyoming system of school financing re-
sults in a disparity of educational
opportunity. There is no evidence that:

"The income from sources other than
foundation funds decreases the im-
pact of foundation grants in
equalizing school district revenue
and exacerbates the disparity."

F-11

It is respectfully submitted that an
evidential hearing would show what
funds are included as “local revenue"
in computing Foundation Fund entitle-
ments.

There is no evidence from which the
court can assume that the quality of a
child's education must be measured
solely in terms of dollars available -
rather than in dollars required to
obtain such quality.

There is no evidence to show that
any school district does not receive
the dollars required to provide a com
plete, uniform, thorough, efficient,
adequate or quality education to its
pupils.

There is no evidence, in fact,
to show what is a complete, uniform,
thorough, efficient, adequate or quality
education, either under the provisions
of the Constitution or otherwise.

There is no evidence to support the
conclusion that the Foundation Program
falls short of raising the level of ed-
ucation of any school district which
the court denominates as "poor" to
that of the level of the level of educa-
tion ot other school districts which the
court calls “rich.” In fact, it is
respectfully submitted that the affida-
vit attached hereto as Exhibit "A"
should clearly indicate that there is
or may be substantial evidence to the
contrary if such evidence will be con-
sidered.

Any classification on the basis of
wealth is a classification for distri-
bution of funds from the Foundation
Program in which the "poor" districts
receive the greater amount of distribu-
tion. It does not follow therefore that
such classification under such circum
stances can be "suspect" as labeled by

F-12

the court. In fact, the entire tenor
of the court's decision is that funds
must be distributed or redistributed on
the basis of wealth or lack of it.

The court has said:

"The burden is therefore on those
defending the classification once
its unequal results are known."

but, there is no evidence to show an
"unequal result" in education. The
only evidence shows that different
amounts of money are available to or
expended by different school districts.
The court has said the burden is on
those defending. That being the case,
those defending should be afforded an
opportunity to defend.
The court has summarily and without
evidence, rejected the proposition that
finances are:

"Only one small part in determining
the quality of education Wyoming
children receive."

Such rejection was made on the basis that
the proposition: "is unsupported by any
convincing argument or authoritv." None
of the Appellees have been afforded any
opportunity to support the proposition
by evidence, argument or authority. Due
process requires such opportunity.
Unless evidence is presented the
contrary, it appears to be wompletely
illogical to accept the statement that
because one school district spends more
money than another, it is either "squan-
dering" its money or that a similar ex-
penditure is required in every other
school district to provide an adequate
education. As hereinbefore set forth,

F-13

this court itself has recognized some of
the variable. Only an evidential hear-
ing and thorough analysis and argument,
can result in sound, proper and logical
conclusions.

This court has said:

"There is no other viable cri-
terion or test that the
Appellees show to exist, and
our exploration of the subject
has resulted only in discovery
of a quagmire of speculation,
so slippery that it evades any
secure grasp for judicial
decision making."

Appellees have, however, been given no
opportunity to show that other criteria
may be valid.

There is no evidence to show or in-
dicate or from which to conclude that:

", . « until equality of financing
is achieved, there is no practicable
method of achieving equality of
quality."

There is no evidence to show or
indicate what constitutes "equality of
financing" other than dollars per pupil -
which the court itself indicates may
generate a constitutionally offensive
classification.

The court has completely ignored
any substantial equalizing effect of the
capital construction entitlements, other
than to mention that such fund exists.

F-14

III

THE SUPREME COURT LACKS JURISDICTION
TO RENDER SUCH A DECISION OR JUDGMENT
UPON EVIDENCE ORIGINALLY INTRODUCED IN
THE SUPREME COURT WITHOUT OFFER BY ANY
PARTY OR OPPORTUNITY OF ANY PARTY TO
REBUT OR CROSS EXAMINE.

Unless the po\2r or authority of a
court to perform a contemplated act can
be found in the constitution or the laws
enacted thereunder, it is without juris-
diction and its acts are invalid. 16
AmJur2d Constitutional Law, Section 307,
page 824, 825.

Courts, like other agencies of the
government, are subject to controlling
constitutional provisions and valid ex-
isting laws; and in performing judicial
functions, courts must be careful to
keep within the constitutional limits of
their own powers and to proceed by due
process of law. 16 AmJur2d Constitu-
tional Law, Section 307, page 830.

"The Supreme Court shall have
general appellate jurisdiction,
coextensive with the state, in
both civil and criminal causes,
and shall have a general super-
intending controlsever all in-
ferior courts, under such rules
and regulations as may be pre-
scribed by law." Article V,
Section 2, Wyoming Constitution.

The Supreme Court is essentially a
court of review with reference to cases
where original jurisdiction is lodged
exclusively in a lower court and in that
sense, its jurisdiction is limited and
ought not to be extended beyond the limits
prescribed. State vs. Kelley, 17 Wyo 335,
“i, 2: OS UC

F-15

"The district court shall have orig-
inal jurisdiction of all causes, both
at law and in equity. . . The district
court shall also have original juris-
diction in all cases and of all
proceedings in which jurisdiction
shall not have been by law vested ex-
clusively in some other court;. . ."
Article V. Sec. 10, Wyoming Consti-
tution.

The provisions of the Wyoming Uniform
Declaratory Judgments Act include:

"Courts of record within their re-
spective jurisdictions may declare
rights, status and other legal re-
lations whether or nor further relief
is or could be claimed. .."

"Any person. . . whose rights,
status or other legal relations are
affected by the Wyoming Constitution
or by a statute. . .may have any
question of construction or validity
arising under the instrument deter-
mined and obtain a declaration of
rights, status or other legal rela-
tions." W.S. 1-37-103.

"Final orders and judgments entered
in declaratory judgment proceedings
may be reviewed as in other civil
actions." W.S. 1-37-109

"Further relief based on a declara-
tory judgment may be granted. Appli-
cation therefor should be by petition
to a court having jurisdiction to
grant the relief. If the application
is sufficient, the court, on reason-
able notice, shall require any adverse
party whose rights have been

F-16

adjudicated by the declaratory judg-
ment to show cause why further relief
should not be granted." (Emphasis
added) W.S. 1-37-110.

"When a declaratory judgment pro-
ceeding involves the determination
of an issue of fact, the issue may
be tried and determined as in other
civil actions." W.S. 1-37-111l.

The court has no power to ignore court
procedure. It is an exercise of unlawful
authority to ignore the well established
and securely grounded processes of orderly
court procedure so necessary under our
system of government to secure to a liti-
gant his day in court - due process of law.
State vs. Tedder, (Fl. 1936) 166 S. 590, 595.

The trial court must determine and
dispose of all factual questions before the
Supreme Court should be asked to determine
constitutional problems. State Ex Rel
Fawcett vs. Board of Count Commissioners,
73 Wyo. 69, 87, 273 P2d 188; State Ex Rel
Keefe vs. Jones, 62 Wyo. 71, 161 P2d 135;
White vs. Board of County Commissioners, 77
Wyo. 246, 313 P2d 484.

As hereinabove indicated, the Supreme
Court does not have jurisdiction to
exercise original authority, to enter any
declaratory judgment, or order specify-
ing what judgment should be entered; the
court does not have jurisdiction, power,
or authority to disregard court procedure,
or to deny any judicial determination or
trial of fact as provided by the Declara-
tory Judgment Act. The jurisdiction of
this court itself is controlled by the
Constitution. The district court has
original jurisdiction and this court can
exercise only appellate jurisdiction.

There is no constitutional or statutory

F-17

#%

procedure whereby the Supreme Court can
deny to Appellees a judicial determina-
tion and trial of facts at the district
court level.

F-18

APPENDIX G

W.S. 1-37-111. When a declaratory
judgment proceeding involves the determi-
nation of an issue of fact, the issue may
be tried and determined as in other civil
actions.

WRCP (Wyoming Rules of Civil Procedure)
Rule 12. ". . .(1) If the court denies the
motion or postpones its disposition until
the trial on the merits, the responsive
pleadings shall be served within ten (10)
days after notice of the court's action;

- - -" “Every defense, in law or fact,

to a claim for a relief in any pleading,
whether a claim, counterclaim, cross-claim,
or third-party claim, shall be asserted in
the responsive pleading thereto if one is
required, except that the following
defenses may at the option of the pleader
be made by motion: (1) lack of jurisdic-
tion over the subject matter, ... (6)
failure to state a claim upon which relief
can be granted, (7) failure to join the
party under Rule 19. A motion making any
of these defenses shall be made before
pleading if a further pleading is permitted.
No defense or objection is waived by being
joined with one or more other defenses or
objections in a responsive pleading or
motion.

WRCP Rule 39. ". . .(b) By the court. -
Issues not demanded for trial by jury as
provided in Rule 38 shall be tried by the
SOGECS. « «”

WRCP Rule 38. "(a) Right preserved. -
Issues of law must be tried by the court,
unless referred as hereinafter provided;
and issues of fact arising in actions for

the recovery of money only, or specific,
real or personal property, shall be tried

by a jury unless a jury trial be waived,

or a reference be ordered. All other issues
of fact shall be tried by the court, subject
to its power to order any issue to be tried
by a jury, or referred.”

WRCP Rule 43. "(a) Form and admissibil-
ity. - In all trials the testimony of wit-
nesses shall be taken orally in open court,
unless otherwise provided by these rules,
by statute, the: Wyoming Rules of Evidence,
or other rules adopted by the Suprem Court
of Wyoming."

WRCP Rule 52. "(a) General and special
findings by court. - Upon the trial of
questions of fact by the court, or with an
advisory jury, it shall not be necessary
for the court to state its findings,
except generally for the plaintiff or
defendant, unless one of the parties
requests it before the introduction of
any evidence, with the view of excepting
to the decision of the court upon the
questions of law involved in the trial, in
which case the court shall state in writing
its special findings of fact separately
from its conclusions of law; provided, that
without such request the court may make
such special findings of fact and conclu-
sions of law as it deems proper and if the
same are preserved in the record either by
stenographic report or by the court's
written memorandum, the same may be con

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2319%3A1. Public record. Not legal advice.