Gordon v. State, 413 P.3d 1093

Background

In 2014 Wyoming enacted statutes creating an oversight group, directing the state construction department and governor to design, contract for, and implement a single-funded restoration/renovation project for the State Capitol and Herschler building.
The 2014 statutes did not name the State Treasurer as a member of the oversight group nor expressly require the Treasurer’s approval of project contracts.
Treasurer Mark Gordon sued for declaratory and injunctive relief, alleging the statutes facially violate: (1) Article 3, § 31 (which requires governor and state treasurer approval of contracts for repairing and furnishing legislative halls/rooms) and (2) Article 2, § 1 (separation of powers) by transferring the Treasurer’s constitutional contract-approval power to others.
The district court granted summary judgment for the State; Gordon appealed. Meanwhile the Legislature amended the statutes in 2017 to add the Treasurer as a voting member of the oversight group but required approval by the governor and a majority of other voting members.
The Wyoming Supreme Court reversed: it held the statutes, as written, effectively allow project contracting and spending to proceed without the Treasurer’s constitutionally mandated approval for repairs and furnishings of legislative halls/rooms, and thus facially violate Article 3, § 31 and Article 2, § 1. The Court remanded for factual determination of the scope of the Treasurer’s approval power.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Capitol restoration statutes facially violate Article 3, § 31 (treasurer approval required for contracts "repairing and furnishing the halls and rooms used for the meeting of the legislature and its committees").	Gordon: The statutes authorize repair/furnishing contracts for legislative spaces without requiring Treasurer approval, violating the constitutional check.	State: Statutes are silent as to Treasurer approval; silence does not conflict with constitution and statutes authorize others but do not prohibit Treasurer approval.	Held: Statutes, read as a whole, entrust contracting, approval, and expenditure authority to others so as to exclude the Treasurer’s constitutional approval for repairs/furnishings of legislative halls/rooms; facial violation of Art. 3, § 31.
Whether the statutes violate the separation of powers (Art. 2, § 1) by transferring a constitutional executive power to the legislature/other actors.	Gordon: The Treasurer’s approval power is constitutional, not merely statutory; legislature cannot remove/transfer that authority.	State: The statutes do not transfer or abrogate constitutional authority; any statutory approval regime can coexist with constitutional approval rights.	Held: Because Article 3, § 31 vests the Treasurer with constitutional approval authority and the statutes assign the project’s contracting/approval to others, the statutes usurp that executive power and violate Art. 2, § 1.

Key Cases Cited

Pisano v. Shillinger, 835 P.2d 1136 (Wyo. 1992) (legislative silence ordinarily insufficient to show intent to preclude a right unless clear intent exists)
Powers v. State, 318 P.3d 300 (Wyo. 2014) (discussing limits on legislative reassignment of constitutionally vested duties and the heavy burden for facial challenges)
Washakie Cty. Sch. Dist. v. Herschler, 606 P.2d 310 (Wyo. 1980) (court’s duty to invalidate statutes that transgress the constitution despite deference to the legislature)
State ex rel. State Publishing Co. v. Hogan, 56 P. 818 (Mont. 1899) (similar constitutional approval clause held to require governor and treasurer approval as an indispensable prerequisite to contract validity)
I.N.S. v. Chadha, 462 U.S. 919 (U.S. 1983) (observations on constitutional checks and the burdens they impose on governmental processes)