Cranston v. Thomson , 530 P.2d 726 ( 1975 )

Mr. Chief Justice PARKER

delivered the opinion of the court.

This is an appeal by plaintiffs and the two intervenor organizations from an order dismissing the complaints for failure to state a justiciable cause.¹ In their complaint plaintiffs sought to declare void and unconstitutional § 22.1-401, W.S.1957, 1973 Cum.Supp., requiring a candidate’s written approval to expenditures on his behalf, and certain subsections of § 22.1-389, W.S.1957, 1974 Interim Supp.,² concerning the limitation of campaign expenditures and restricting certain practices. There was also a prayer seeking to prohibit enforcement of the mentioned statutes, but this aspect is not pursued in the appeal.

The complaint asserted plaintiffs’ status as resident electors, that said Cranston and Doughty had been candidates for state representative in the 1972 election and Cran-ston was an announced candidate for the same office in 1974, that Otto “may become a candidate for office in 1974,” and alleged the membership of all plaintiffs in one or more organizations which seek through joint action to support the nomination and election of candidates for public office, which activities exposed the plaintiffs to potential civil and criminal penalties. It stated that the challenged statutes affected and harmed them, charging unconstitutionality on numerous grounds as violative of “Article I, Section 1, Article I, Section 2; Article I, Section 3; Article I, Section 6; Article I, Section 7; Article I, Section 9; Article I, Section 10; Article I, Section 11; Article I, Section 20; Article 1, Section 21; Article I, Section 27; Article I, Section 34; Article I, Section 36; Article III, Section- 27, of the Constitution of the State of Wyoming and the First, Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States. Article I, Section 4 and Article VI of the Constitution of the United States * *

The intervenor AFL-CIO stated its organizational structure, certain provisions in its constitution, and said that it had “in the past and anticipatorily in the future, will endorse candidates, make contributions from funds voluntarily contributed and otherwise support the electoral interests of candidates including specifically those seeking national office, deemed best to recognize and support the interests of labor.” Its prayer was similar to that of plaintiffs.

The intervenor Wyoming PACE recited its voluntary nonprofit, unincorporated status, the individuals combined to support political candidates favorable to education, the receipt of donations from its members, and the selection through its board of directors of candidates favorable to education, who would receive the campaign donations. PACE charged unconstitutionally of the mentioned statutes on grounds substantially similar to those asserted by plaintiffs and 'by the intervenor AFI^-CIO, appending a like prayer.

In an amended complaint the intervenor AFD-CIO recited additionally its contribution of moneys in various capacities to candidates in the 1972 general election as well as the fact that it had on hand substantial funds collected from per capita tax and moneys received from nonresidents of the State and desired to contribute some of the money to the Congressional candidate and presently planned and desired to continue its past practice of making contributions to candidates for election.

In an amended complaint, PACE further alleged that it presently held a checking account of $4,152.90 contributed by its members for the purposes of soliciting and receiving donations to the campaigns of announced political candidates supporting education or to the political parties they represent, and that its Board of Directors had selected certain candidates whom they wished to support and had donated the sum of $500 to the National Education Association Political Action Committee, an organization which makes campaign donations to candidates for the United States Congress and Senate from various states, including Wyoming.

From a dismissal of plaintiffs’ and inter-venors’ complaints, on the grounds that neither the pleadings nor the testimony in evidence adduced in support thereof gave rise to a justiciable controversy upon which the court might act, this appeal has resulted.

The appellants here urge the existence of a justiciable controversy, the unconstitutionality of the challenged laws on the grounds asserted in the pleadings, and ask for a decision as to the merits of the action. The threshold question, of course, is that of justiciability, the basis for the trial court’s order of dismissal. On that aspect, all parties here take comfort in the case of Brimmer v. Thomson, Wyo., 521 P.2d 574; and it may therefore be salutary to summarize our analysis of what was said therein.

Aside from general discussion explanatory of but unnecessary to the result, we held in Brimmer that each of the three senators who were defendants had, if qualified therefor, a genuine, existing, and fundamental right to seek the public office of governor. Such right had been improperly restricted and abrogated by a previous opinion of the Attorney General. Thus, a justiciable controversy existed. In reaching the decision, various incidental and foundation matters received some attention, including (a) the necessary elements of a justiciable controversy under the Uniform Declaratory Judgments Act, (b) a notation of the unquestioned axiom that the Declaratory Judgments Act cannot be relied, upon to secure an advisory opinion, and (c) the caution essential to application of the public interest concept; but reference to any of these remarks taken out of context is unwarranted.

Perhaps there should be some delineation of the rule that a declaratory judgment cannot be relied upon to secure an advisory opinion. •

“ * * * Courts will not render advisory opinions on abstract questions of law about which there is only a disagreement rather than an actual controversy between the parties. * * * ” Wagner v. Mahaffey, 195 Kan. 586, 408 P.2d 602, 605.

“The Declaratory Judgments Act gives courts no power to determine future rights or controversies in anticipation of events that have not occurred * * * Glasgow v. Fox, 214 Tenn. 656, 383 S. W.2d 9, 13.

We adopt these holdings. The reasons for this rule are obvious since binding legal determinations made in the abstract and decisions rendered without concrete factual background would be imprecise, subject to speculation, and would create rather than diminish future controversies. We have thus made it clear that the court is precluded by logic as well as precedent from issuing advisory opinions. We have also indicated in Brimmer the requisites of a justi-ciable controversy under the Uniform Declaratory Judgments Act: (a) that it requires parties who have existing and genuine, as distinguished from theoretical rights and interests, (b) the controversy must be one upon which a court may effectively operate rather than an argument calling for a purely political, administrative, philosophic, or academic conclusion, and (c) it must be one of which a judicial determination may have the force and effect of a final judgment upon the rights, status, or legal relationships of a real party in interest.

We think that, wanting any of these requisites, a great public interest alone is insufficient to warrant the action of the court under any situation which we might at present foresee. As has been pointed out in numerous authorities, the difference between an abstract question and a controversy contemplated by the Uniform Declaratory Judgments Act is necessarily one of degree; and it is difficult, if not impossible, to fashion in advance a precise test for determining the question. Basically, the problem in each case is whether the facts alleged under all the circumstances show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the declaratory judgment. Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 959-960, 22 L.Ed.2d 113.

In the matter before us, there are asserted either by the pleadings or the evidence no existing right or interest with the possible exception (1) of an opinion of April 29, 1974, by the Attorney General to the Secretary of State wherein the questions ³ were answered in the affirmative, and (2) the pleaded and undenied payment by PACE of $500 to the National Education Association Political Action Committee. As to the Attorney General’s opinion, the questions asked were not sufficiently concrete to dispose of any dispute here between the parties. As to the mentioned PACE $500 payment, there was no information presented showing it to have been received by the organization to which it was sent or what was done with it thereafter.

Next to Brimmer, appellants seem to place most reliance on Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, and quote from 410 U.S. at 188, 93 S.Ct. at 745:

“Inasmuch as Doe and her class are recognized, the question whether the other appellants — physicians, nurses, clergymen, social workers, and corporations— present a justiciable controversy and have standing is perhaps a matter of no great consequence. We conclude, however, that the physician-appellants, who are Georgia-licensed doctors consulted by pregnant women, also present a justicia-ble controversy and do have standing despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State’s abortion statutes. The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. * ⅜ * »

The quoted language is only a small portion of a rather involved opinion issued simultaneously with another case, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 147, dealing with related matters, inter alia, the issuance of a declaratory judgment concerning the constitutionality of abortion statutes. Justice Blackmun, the author of both opinions, stated in Roe that the two cases “of course, are to be read together,” 410 U.S. at 165, 93 S.Ct. at 733. An analysis of these two cases discloses that in the instance where the woman plaintiff (or the married couple) is merely apprehensive of what may occur in the future plaintiff’s position is held to be of a speculative character and an allegation concerning it does not present a justiciable controversy, while in a circumstance where there is an actual pregnancy the opposite is true. The situation of Jane Roe’s physician, as to justiciability is. unimportant to the present controversy since there the Supreme Court declined prosecution for abortion activities then pending before the •Texas court and rejected his alternative contention that he was a “potential future defendant” since there was no showing that he would suffer great and immediate irreparable injury by virtue of being prosecuted in the state courts where he could make his constitutional contentions.

In Doe v. Bolton, supra, May Doe was held to have presented a justiciable controversy since at the time of the complaint she was actually pregnant, the alleged interference with her rights was clear, immediate, and present, rather than speculative and futuristic. The same rationale was applied to the doctors.

It follows, therefore, that the holdings in the mentioned decisions of the United States Supreme Court are consistent with the opinions of this court and in particular with that of Brimmer v. Thomson, supra, where we indicated that to present a justi-ciable controversy there must be the violation of a genuine, existing, and fundamental right, and that the court would not issue advisory opinions dealing with future speculative matters.

Neither the complaints in the present case nor the evidence adduced before the trial court dealt with more than speculations and possibilities. Actually the requests presented by the three complaints were for advisory opinions on multifaceted matters, answers to which' could scarcely fail to proliferate rather than resolve controversy.

We do not reach the various constitutional questions which are posed.

Affirmed.

1 . The order also dismissed the Secretary of State and the Laramie County Clerk as defendants.

2 . Section 22.1-389(c), (d), (e), (f)— and (g) as applied to (d), (e), and (f) — W.S.1957, 1974 Interim Supp.

3 . “QUESTION [1] : Is the Campaign Expenditure Limitation of the Wyoming Election Code Applicable to Federal Candidates?

“QUESTION [2] : Are the Provisions of the AVyoming Election Code which Place Limitations on Contributions and Expenditures by Associations and Groups Applicable to Federal Candidates?

“QUESTION [3] : Will Reports filed by Federal Candidates in Accordance with Federal Statutes Satisfy State Campaign Reporting Requirements?”