Max Maxfield, In His Individual Capacity v. State of Wyoming

IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 14OCTOBER TERM, A.D. 2012
February 1, 2013
MAX MAXFIELD, in his individual
capacity,
Appellant
(Plaintiff),
S-12-0084
v.
STATE OF WYOMING,
Appellee
(Defendant).
Certified Questions
From the District Court of Laramie County
The Honorable Thomas T.C. Campbell, Judge
Representing Appellant:
Bradley T. Cave, P.C., Holland & Hart LLP, Cheyenne, Wyoming.
Representing Appellee:
Gregory A. Phillips, Wyoming Attorney General.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Chief Justice.
[¶1] Max Maxfield, the Secretary of State for the State of Wyoming, filed a
declaratory judgment action in district court challenging the constitutionality of
Wyoming’s term limit statute. The State responded, asserting among other claims,
that Mr. Maxfield’s complaint does not present a justiciable controversy and, in
any event, the statute is constitutional. We accepted certification of the issues
from the district court and hold that Mr. Maxfield has presented a justiciable
controversy and the statute is unconstitutional.
CERTIFIED QUESTIONS
[¶2] The district court certified the following questions to this Court:
1. To proceed under the Wyoming Declaratory
Judgment Act, Wyo. Stat. Ann. §§ 1-37-101through 1-37-115, Mr. Maxfield must present a
justiciable controversy. To do so, he must show
existing and genuine rights or interests, not
theoretical ones. Does this case present a
justiciable controversy?
2. Is the term limit law for statewide elected
officials (Wyo. Stat. Ann. § 22-5-103(a)(i)),
constitutional and enforceable, or are the
qualifications provided by the Wyoming
Constitution exclusive?
FACTS
[¶3] Article 4, § 11 of the Wyoming Constitution states:
§ 11. State officers; election; qualifications; terms.
There shall be chosen by the qualified electors
of the state at the times and places of choosing
members of the legislature, a secretary of state,
auditor, treasurer, and superintendent of public
instruction, who shall have attained the age of twenty-
five (25) years respectively, shall be citizens of the
United States, and shall have the qualifications of state
electors. They shall severally hold their offices at the
seat of government, for the term of four (4) years and
1
until their successors are elected and duly qualified.
The legislature may provide for such other state
officers as are deemed necessary.
[¶4] Article 6 contains the following provisions pertaining to electors:
§ 2. Qualifications of electors.
Every citizen of the United States of the age of
twenty-one years and upwards, who has resided in the
state or territory one year and in the county wherein
such residence is located sixty days next preceding any
election, shall be entitled to vote at such election,
except as herein provided.
....
§ 5. Electors must be citizens of United States.
No person shall be deemed a qualified elector of
this state, unless such person be a citizen of the United
States.
....
§ 15. Qualifications for office.
No person except a qualified elector shall be
elected . . . to any civil . . . office in the state.
[¶5] In the general election in 1992, the voters approved Initiative Number 1, § 1
which limited the number of terms that could be served in public office by certain
elected officials. As amended by the legislature, the initiative provided in relevant
part as follows:
§ 2 2-5-103. Legislative service; limits on ballot
access; state offices
(a) Notwithstanding any other provision of
Wyoming law, the secretary of state or other
authorized official shall not certify the name of any
person as the nominee or candidate for the office
sought, nor shall that person be elected nor serve in
that office if the following will occur:
2
(i) The person, by the end of the current term of
office will have served, or but for resignation, would
have served eight (8) or more years in any sixteen (16)
year period in the office for which the candidate is
seeking nomination or election, except, that any time
served in that particular office prior to January 1, 1993,
shall not be counted for purposes of this term limit.
This provision shall apply to the offices of governor,
secretary of state, state auditor, state treasurer, and
state superintendent of public instruction;
(ii) The person, by the end of the current term
of office will have served, or but for resignation,
would have served twelve (12) or more years in any
twenty-four (24) year period as a state representative,
except that any time served in the office of state
representative prior to January 1, 1993, shall not count
for purposes of this term limit;
(iii) The person, by the end of the current term
of office will have served, or but for resignation,
would have served twelve (12) or more years in any
twenty-four (24) year period as a state senator, except
that any time served as a state senator prior to January
1, 1993, shall not be counted for purposes of this term
limit.
[¶6] In Cathcart v. Meyers, 2004 WY 49, 88 P.3d 1050 (Wyo. 2004), this Court
found subsections (ii) and (iii) to be unconstitutional. Accordingly, in 2005 the
legislature repealed those subsections and the provision now reads:
§ 22-5-103. Limits on ballot access; state offices.
(a) Notwithstanding any other provision of Wyoming
law, the secretary of state or other authorized official
shall not certify the name of any person as the nominee
or candidate for the office sought, nor shall that person
be elected nor serve in that office if the following will
occur:
(i) The person, by the end of the current term of
office will have served, or but for resignation, would
have served eight (8) or more years in any sixteen (16)
3
year period in the office for which the candidate is
seeking nomination or election, except, that any time
served in that particular office prior to January 1, 1993,
shall not be counted for purposes of this term limit.
This provision shall apply to the offices of governor,
secretary of state, state auditor, state treasurer, and
state superintendent of public instruction.
[¶7] Mr. Maxfield was first elected Secretary of State in 2006 and began serving
his term in 2007. He was elected to serve a second term in 2010, and began
serving that term in 2011. His current term ends in January 2015.
[¶8] In September of 2011, Mr. Maxfield filed a complaint for declaratory and
injunctive relief in district court seeking to have Wyo. Stat. Ann. § 22-5-103(a)
(LexisNexis 2011) declared unconstitutional. He asserted that the statute prohibits
him from running for another term even though he meets all the constitutional
qualifications for holding the office of secretary of state. He argued the
qualifications set forth in the constitution are exclusive, and in modifying and
imposing qualifications for office beyond those contained in the constitution, the
statute is unconstitutional. As support for his position, he relied heavily on this
Court’s holding in Cathcart that § 22-5-103(ii) and (iii), the provisions placing
term limits on state legislators, were unconstitutional. He further asserted that he
has a fundamental right to seek election to the office of secretary of state which
the statute prevents him from exercising.
[¶9] In its answer to the complaint, the State asserted the qualifications set forth in
the constitution are not exclusive and the electorate and legislature acted within
their authority in imposing additional statutory qualifications. The State also
asserted Mr. Maxfield’s complaint did not present a justiciable controversy
because he did not state that he actually intends to seek election to a third term;
therefore, he had not shown that the statute affects an existing and genuine right.
Arguing that Mr. Maxfield’s claim is theoretical because the remedy he seeks is
for a potential future harm that is not certain to occur, the State contended he did
not have standing to pursue his claim.
[¶10] Subsequently, Mr. Maxfield and the State filed motions asking the district
court to certify the issues to this Court. They also filed statements of fact and
certified questions of law. Ultimately, they were able to reach an agreement as to
the certified questions and filed a stipulated motion and proposed certification
order. The district court signed the order certifying the questions to this Court.
We accepted the certification.
4
DISCUSSION
[¶11] The State asserts Mr. Maxfield’s complaint does not present a justiciable
controversy. If the State is correct, the action must be dismissed. We begin our
discussion, therefore, by considering whether Mr. Maxfield presents a justiciable
controversy.
1. Justiciable Controversy
[¶12] Mr. Maxfield’s argument that his complaint presents a justiciable
controversy is twofold. First, he asserts his claim concerns a matter of great public
importance and so it is exempt from the traditional justiciability analysis. Second,
he argues that even if it is not a matter of great public importance, his complaint
presents a justiciable controversy because he has an existing, actual constitutional
right to seek public office and § 22-5-103 prevents him from exercising that right.
[¶13] Mr. Maxfield filed his complaint pursuant to the Uniform Declaratory
Judgment Act, Wyo. Stat. Ann. §§ 1-37-101 through 1-37-115 (LexisNexis 2011).
Section 1-37-102 of the Act gives Wyoming courts the power to “declare rights,
status and other legal relations.” Section 1-37-103 provides:
Any person interested 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 constitution or by statute,
municipal ordinance, contract or franchise, may have
any question of construction or validity arising under
the instrument determined and obtain a declaration of
rights, status or other legal relations.
Mr. Maxfield contends his right under the Wyoming Constitution to seek a third
term as secretary of state is affected by § 22-5-103. His complaint, therefore, falls
within the general scope of the declaratory judgment act.
[¶14] We have said:
In order to bring a declaratory judgment action,
the challenger must also be an “interested” person.
Cox v. City of Cheyenne, 2003 WY 146, ¶ 8, 79 P.3d
500, 505 (Wyo. 2003). That is, the challenger must be
involved in a justiciable controversy before declaratory
relief will be granted. Id., ¶ 9, 79 P.3d at 505. A
5
justiciable controversy is defined as a controversy fit
for judicial resolution. Id.
Carnahan v. Lewis, 2012 WY 45, ¶ 17, 273 P.3d 1065, 1071 (Wyo. 2012). The
elements necessary to establish a justiciable controversy under the Declaratory
Judgment Act are:
1. The parties have existing and genuine, as
distinguished from theoretical, rights or interests.
2. The controversy must be one upon which the
judgment of the court may effectively operate, as
distinguished from a debate or argument evoking a
purely political, administrative, philosophical or
academic conclusion.
3. It must be a controversy the judicial determination
of which will have the force and effect of a final
judgment in law or decree in equity upon the rights,
status or other legal relationships of one or more of the
real parties in interest, or, wanting these qualities to be
of such great and overriding public moment as to
constitute the legal equivalent of all of them.
4. The proceedings must be genuinely adversary in
character and not a mere disputation, but advanced
with sufficient militancy to engender a thorough
research and analysis of the major issues.
Id.; Brimmer v. Thomson, 521 P.2d 574, 578 (Wyo. 1974).
[¶15] Mr. Maxfield contends that his complaint is exempt from these
requirements because it concerns issues of great public importance, i.e., his right
to be a candidate for secretary of state and the right of Wyoming citizens to vote
for him. Indeed, this Court has said “the right to seek election for a public office
for which [one has] proper qualifications . . . is a valuable and fundamental right”
and “is certainly a matter of ‘great overriding public moment.’” Brimmer, 521
P.2d at 578-79, quoting Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 10, 21 L. Ed.
2d 24. More recently we said the right is “so fundamental and of such great public
interest and importance that the rule requiring the existence of a justiciable
controversy should be relaxed or should not be followed.” Cathcart, ¶ 27, 88 P.3d
at 1062.
6
[¶16] While recognizing our precedent, the State maintains that whether or not the
issue is one of great public importance Mr. Maxfield still must show the right he
seeks to have declared is actual and existing as opposed to theoretical and
uncertain. Absent a declaration by Mr. Maxfield that he intends to run for
secretary of state in 2014, the State asserts this Court cannot decide the issue
presented because we are without authority to determine future or contingent
rights. The State cites White v. Board of Land Comm’rs, 595 P.2d 76, 79 (Wyo.
1979) and Anderson v. Wyo. Dev. Co., 60 Wyo. 417, 154 P.2d 318, 342 (1944) as
support for its assertion.
[¶17] In White, the state land board issued a ruling that a private landowner who
leased water rights on state school lands had a preferential right to purchase the
lands at an upcoming public auction. The board later brought a declaratory
judgment action seeking a determination that its ruling was incorrect and the
landowner did not have a preferential right. This Court held there was no
justiciable controversy because the board was seeking an advisory opinion about
the validity of its own ruling. The Court also found there was no justiciable
controversy because the auction had not yet been held and thus it was not certain
the landowner would attempt to exercise any preferential right he might have.
[¶18] No claim was made in White that the matter at issue in the declaratory
judgment action was one of great public importance; therefore, the Court did not
consider whether the rule requiring an actual existing harm should be relaxed in
that context. Likewise, in Anderson, there was no discussion of the courts’ power
to decide issues of great public importance in cases where a showing of actual
existing harm cannot be made. In Eastwood v. Wyoming Highway Department,
76 Wyo. 247, 301 P.2d 818 (1956), however, this Court made clear that the
requirement of a justiciable controversy may be relaxed in cases involving matters
of sufficient public interest.
[¶19] The state motor vehicle division revoked Mr. Eastwood’s driver’s license
after he was involved in a car crash. Id. at 819. He brought an action in district
court to set aside the statute allowing revocation on the ground that it violated due
process and other rights guaranteed by the state constitution. Id. at 818. The
district court certified the question to this Court. By the time the question was
before this Court, the revocation period had expired, making the question moot.
Id. at 819. The Court concluded the question was of sufficient public interest and
importance and answered the question anyway. Id.
[¶20] Subsequently, in Brimmer, 521 P.2d at 578, this Court reiterated that the
requirement of a justiciable controversy can be relaxed in cases involving matters
of great public interest or importance. The attorney general’s office had issued an
opinion denying, or at least placing in question, the right of a sitting full term state
7
senator to be a candidate for governor. Id. at 576. Finding that the attorney
general opinion interfered “with the free and untrammeled choice of every elector
in the State of Wyoming,” the Court concluded the matter was of great public
importance justifying relaxing the justiciable controversy requirement. Id. at 578.
See also Pioneer Nat’l Title Ins. Co. v. Langdon, 626 P.2d 1032, 1034 (Wyo.
1981), reiterating that “a case may be decided absent a present factual controversy,
where there is an ongoing dispute of great public importance” but concluding the
issue presented there was not of sufficient public importance to justify considering
it. Most recently, in Cathcart, ¶ 12, 88 P.3d at 1058, we reaffirmed that the
justiciable controversy requirement can be relaxed where matters of great public
interest or importance are involved.
[¶21] Given this precedent, we reject the State’s argument that whether or not the
issue is one of great public importance Mr. Maxfield still must show the right he
seeks to have declared is actual and existing as opposed to theoretical and
uncertain. Mr. Maxfield’s claim that § 22-5-103 violates his right to be a
candidate for secretary of state involves a matter of great public importance and
the usual requirements for showing a justiciable controversy may be relaxed.
[¶22] Even without our conclusion that Mr. Maxfield’s complaint involves a
matter of great public importance, we would hold that the case presents a
justiciable controversy. This Court recognized in Brimmer, 521 P.2d at 578, and
reiterated in Cathcart, ¶ 12, 88 P.3d at 1058, that qualified persons have a genuine
and existing right to seek election for public office. Contrary to the State’s
assertion, the holding in those cases did not depend on the legislators having stated
their intention to run. In Brimmer, 521 P.2d at 576, one of the senators alleged
only that the attorney general opinion at issue cast doubt about whether he would
be allowed to run. There was no suggestion by this Court that he had to allege that
he actually intended to run in order to present a justiciable controversy. Similarly,
the Court in Cathcart did not discuss in the context of determining whether a
justiciable controversy existed any necessity of alleging an intention to run for
public office. The actual and existing right recognized in those cases as presenting
a justiciable controversy is the right of a qualified person to seek election to public
office.
[¶23] As further support for its assertion that Mr. Maxfield’s claim is too
theoretical and uncertain to establish a justiciable controversy the State cites
William F. West Ranch, LLC v. Tyrrell, 2009 WY 62, 206 P.3d 722 (Wyo. 2009).
There, private landowners brought a declaratory judgment action against the state
engineer and state board of control, challenging their administration of
underground water produced and stored as part of coal bed methane extraction.
We held the controversy was not justiciable in part because,
8
[the landowners] have failed to allege a connection
between a specific constitutional or statutory
obligation with which the State has failed to comply
and a particular harm they, as individuals, have
suffered or will certainly suffer in the future. As such,
they have not shown that a judicial declaration
requiring the State to undertake a particular function
will have a practical effect on them.
Id., ¶ 2, 206 P.3d at 725.1
[¶24] Unlike the landowners in West Ranch, Mr. Maxfield has alleged a
connection between a specific statutory provision—§ 22-5-103—and the particular
harm he will suffer—being precluded from seeking a third term as secretary of
state. Under the four element test this Court adopted in Brimmer, Mr. Maxfield’s
complaint presents a justiciable controversy. He has served two terms as secretary
of state for Wyoming and meets the qualifications contained in the state
constitution for holding that office. That is, he has attained the age of twenty-five
years, is a citizen of the United States and has the qualifications required of state
electors. His right to seek a third term as secretary of state is impeded by § 22-5-
103. A judgment declaring that § 22-5-103 is, or is not, constitutional will operate
to determine whether he is entitled to seek a third term as secretary of state and
will act as a final judgment upon his rights. The proceedings are genuinely
adverse in character—Mr. Maxfield is prohibited by § 22-5-103 from seeking a
third term. Mr. Maxfield’s complaint satisfies the four elements necessary to
establish a justiciable controversy. Brimmer, supra.
2. Constitutionality of § 22-5-103
[¶25] Mr. Maxfield contends the qualifications for statewide elected officials
found in the Wyoming Constitution are exclusive; therefore, § 22-5-103, which
modifies and adds to those qualifications, is unconstitutional. He cites Cathcart as
support for his assertion. The State maintains the statute is constitutional. It
asserts Article 4 § 11 sets forth the minimum qualifications for statewide elected
officials and nothing in its language suggests the framers intended those
qualifications to be exclusive or to preclude the citizens or the legislature from
imposing additional qualifications. The State submits that Cathcart was wrongly
decided.
1
In addition, we held that declaratory judgment was not available because the landowners had not
utilized available administrative processes to resolve their concerns. Id. That portion of West
Ranch has no application here where administrative review is not an option.
9
[¶26] Because Cathcart is at the heart of the present controversy, we begin our
discussion there. In Cathcart, two incumbent state legislators and two electors
challenged the constitutionality of § 22-5-103, arguing that it improperly added
qualifications for holding legislative office to the qualifications found in art. 6, §§
2 and 15, art. 3, § 2 and art. 4, §§ 2 and 11 of the Wyoming Constitution.
Cathcart, ¶ 1, 88 P.3d at 1054. Countering those arguments, the State argued the
rights reserved to the people in Wyo. Const. art. 1, § 1 are superior to the rights
enumerated in the constitution, meaning the people and their representatives have
the authority to enact laws adding to or changing the rights set forth in the
constitution. Id., ¶ 42, 88 P.3d at 1066. The State also asserted the qualifications
for holding legislative office enumerated in the constitution were intended to be
minimum rather than exclusive requirements which could be modified by
legislative enactment.
[¶27] The Court concluded that while Wyo. Const. art. 1, § 1 recognizes the
ultimate right of the people to “alter, reform or abolish” government, that right
must be exercised in accordance with the constitution. Id., ¶ 44, 88 P.3d at 1067.
Reading art. 1, § 1 in pari materia with other relevant constitutional provisions,
we concluded the framers intended that laws altering the government would be
adopted only through constitutionally established means. Id. The means agreed
upon in the constitution is the amendment process. Id.
[¶28] We then considered the nature and extent of the legislature’s authority
under the Wyoming Constitution. Id., ¶ 45, 88 P.3d at 1067. We cited precedent
establishing that rather than granting power, the constitution limits legislative
power and authorizes the enactment of only such laws as are not expressly or
inferentially prohibited by the constitution. Id. We then considered whether the
provisions enumerating the qualifications for holding legislative office were
ambiguous. Id., ¶ 46, 88 P.3d at 1067. Applying our usual rules of constitutional
interpretation, we found those provisions to be clear and unambiguous and turned
to the real question before us—whether the constitutional qualifications were
meant to be exclusive. Id., ¶ 47, 88 P.3d at 1068.
[¶29] In answering that question, we looked to Wyo. Const. art. 1, § 3 which
states:
§ 3. Equal political rights.
Since equality in the enjoyment of natural and
civil rights is only made sure through political
equality, the laws of this state affecting the political
rights and privileges of its citizens shall be without
distinction of race, color, sex, or any circumstance or
condition whatsoever other than individual
10
incompetency, or unworthiness duly ascertained by a
court of competent jurisdiction.
(Emphasis added.) We concluded the highlighted language “leaves no doubt that
no law—whether enacted by the legislature through the legislative process or by
the people through the initiative process—may condition ‘political rights and
privileges’ upon a ‘circumstance or condition’ such as incumbency.” Cathcart, ¶
47, 88 P.3d at 1068. As recognized in Wyo. Const. art. 6, § 1, “holding office” is
one of those “political rights and privileges” not subject to a “circumstance or
condition” such as incumbency. From the unambiguous constitutional language,
we concluded the framers did not intend to allow the legislature by statute or the
electorate by initiative to add qualifications for holding legislative office to those
enumerated in the constitution. Finding that § 22-5-103(ii) and (iii) added
incumbency as a condition other than those specifically enumerated in art. 1, § 3,
we held those provisions to be unconstitutional.
[¶30] In Cathcart, the State argued the constitution was silent as to term limits; if
the framers intended term limits to be the exclusive province of the constitution
they would have said so; and interpreting the constitutional provisions as exclusive
would be reading words into the constitution that were not there. We rejected
those arguments in part because the constitution as originally written by the
framers was not silent concerning term limits. As it appeared originally, Wyo.
Const. art. 4, § 11 stated:
There shall be chosen by the qualified electors
of the state at the times and places of choosing
members of the legislature, a secretary of state,
auditor, treasurer, and superintendent of public
instruction, who shall have attained the age of twenty-
five years respectively, shall be citizens of the United
States, and shall have the qualifications of state
electors. They shall severally hold their offices at the
seat of government, for the term of four (4) years and
until their successors are elected and duly qualified,
but no person shall be eligible for the office of
treasurer for four (4) years next after the expiration
of the term for which he was elected. The legislature
may provide for such other state officers as are deemed
necessary.
(Emphasis added.) Wyo. Const. art 4, § 11 (1890) (amended 1982). Considering
that provision as drafted by the framers, we said:
11
Clearly, the framers of the state constitution knew and
used the necessary language to establish term limits.
That they did not use that language in Wyo. Const. art.
3, § 2, addressing the qualifications and term for
legislators, is telling.
Cathcart, ¶ 58, 88 P.3d at 1072.
[¶31] The State concedes there is no meaningful distinction between the
provisions we considered in Cathcart and those before us today and that it can
succeed on its claim only if Cathcart is reversed. Urging such reversal, the State
reiterates many of the same arguments it made in Cathcart. It argues, for
example, that art. 4, § 11 sets out only minimum qualifications for holding one of
the state-wide offices and is ambiguous about whether those qualifications are
exclusive. It asserts that if the framers had intended the enumerated qualifications
to be exclusive and to preclude the adoption of additional qualifications, they
would have said so. It asserts the framers knew how to write exclusive provisions
as shown in art. 6, § 2, which provides that everyone who satisfies the enumerated
qualifications can vote and then expressly limits those who cannot vote to anyone
who does not meet the art. 6, § 2 qualifications or as provided elsewhere in the
constitution. If the framers intended the constitutional qualifications for holding
office to be exclusive, the State asserts, they would have included similar language
somewhere in the constitution making them so.
[¶32] The State submits the Court in Cathcart “did not fully account for the heart
and spirit of our constitution” as stated in art. 1, § 1:
All power is inherent in the people, and all free
governments are founded on their authority, and
instituted for their peace, safety and happiness; for the
advancement of these ends they have at all times an
inalienable and indefensible right to alter, reform or
abolish the government in such manner as they think
proper.
The State urges the Court to consider this provision in deciding whether the
framers really intended to preclude the people from setting qualifications for office
by limiting the qualifications exclusively to those enumerated in the constitution.
[¶33] Finally, the State asserts the Court in Cathcart did not consider the
following introductory language of art. 1, § 3: “Since equality in the enjoyment of
natural and civil rights is made sure only through political equality . . . .” The
State submits this language makes clear the framers’ intent to ensure equality in
12
natural and civil rights by ensuring political equality. In ensuring equality, the
State argues, the framers were focused on groups of citizens with certain
immutable characteristics who needed protection. Thus, as reflected in art. 1 § 3,
the framers sought to ensure that laws affecting political rights and privileges
“shall be without distinction of race, color, sex . . . .” The State argues the framers
intended the provision to preclude laws depriving a person entirely from holding
office for reasons like race, color, sex or other conditions relating to a person, not
an office. Because § 22-5-103 precludes Mr. Maxfield only from holding the
specific office of secretary of state, and not his general right to hold office, and
because it does so based upon the fact that he has already served two terms as
secretary of state and not on the basis of his race, color, sex or any other condition
relating to his person, the State contends it does not violate the constitution.
[¶34] The express, unambiguous language of art. 1, § 3 convinces us otherwise.
The words “or any circumstance or condition whatsoever other than individual
competency, or unworthiness duly ascertain e d b y a c o u r t o f c o m p e t e n t
jurisdiction” could not be more clear. Together, art. 1, § 3 and art. 6, § 1 clearly
provide that laws affecting the political rights and privileges of Wyoming citizens,
such as the right to hold public office, may not be based upon race, color, sex or
any circumstance or condition whatsoever other than those conditions expressly
stated. Incumbency is not one of the conditions expressly stated. To read the
provision as the State would have us do would be either to read the highlighted
words out of the provision completely, or to interpret them as modifying the words
“race, color, sex” and meaning “like or similar circumstance or condition.” The
broad language used by the framers does not support either reading.
[¶35] We conclude today, as we did in Cathcart, that art. 1, § 3 prohibits the
passage of any law conditioning political rights and privileges upon a
circumstance or condition other than those enumerated. One such political right is
the right to hold office. Because § 22-5-103 conditions the right to hold the office
of secretary of state on incumbency, which is not one of the circumstances or
conditions enumerated, it is unconstitutional.
[¶36] We further conclude Wyo. Const. art. 4, § 11 is unambiguous. To be
elected to serve as secretary of state, one must be at least twenty-five years old, a
citizen of the United States and have the qualifications of state electors. The
provisions setting forth the qualifications of state electors are equally
unambiguous. Pursuant to art. 6, § 2, electors must be citizens of the United
States, at least twenty-one years old, have resided in Wyoming for one year and
have resided in the county of residence sixty days before the election. Art. 6, § 5
also provides that only United States citizens are qualified to be electors in
Wyoming. Art. 6, § 19 prohibits those holding certain federal offices from
13
simultaneously holding a state office. Mr. Maxfield meets these qualifications and
is entitled to seek the office of secretary of state.
[¶37] In Cathcart, we expressly did not address the constitutionality of the term
limit statute as it affects the qualifications for secretary of state, auditor, treasurer
and superintendent of public instruction found in Wyo. Const. art. 4, § 11, nor did
we address the qualifications for governor found in Wyo. Const. art. 4, § 2. Citing
the rule that the constitutionality of a statute may be questioned only by a party
whose rights are affected by it, and that a party cannot assert that a statute is
unconstitutional as to other persons, we limited our holding to the provisions
involving legislative qualifications. Cathcart, ¶ 37, 88 P.3d at 1064. Similarly,
we limit our holding in the present case to the question of whether § 22-5-103 is
unconstitutional as it relates to the qualifications found in Wyo. Const. art. 4, § 11.
We decline Mr. Maxfield’s invitation to address the qualifications for governor.
[¶38] Answering the first certified question, we hold that Mr. Maxfield has
presented a justiciable controversy. Answering the second certified question, we
hold that § 22-5-103(a)(i), the term limit law for statewide elected officials, is
unconstitutional with respect to the offices of secretary of state, auditor, treasurer,
and superintendent of public instruction and the qualifications for those offices
provided by the Wyoming Constitution are exclusive.
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