State Ex Rel. Schieck v. Hathaway

Larry Wyoming ex rel. STATE of SCHIECK, Appellant (Peti below), tioner Thyra

Stanley Thom HATHAWAY and K. son, Appellees below). (Respondents SCHIECK,

Larry Appellant

(Plaintiff below), al.,

Stanley Appellees K. HATHAWAY et (Defendants below).

No. 3983.

Supreme Wyoming. Court

Feb. 1972. Bagley Rooney, William and D. John J. Rooney Horiskey, ap- & Cheyenne, for

pellant. Gen.,

Sterling Case,- Atty. Deputy A. Cheyenne, appellees Stanley for Hatha- K. way Thyra Thomson. Hirst,

Byron Applegate, & Hirst Prosser, Cheyenne, appellee for Dean T. Jr. McINTYRE, J.,

Before and PAR- C. GUTHRIE, KER, McEWAN, and JJ. delivered Mr. GUTHRIE opinion of the court. proceeding petitioner plain- herein, below, Schieck, Larry appellant tiff petition on December filed complaint in- writ of mandamus and T. junction. that Dean claimed Prosser, defendant, Jr., appellee here- as a in, ineligible to serve in the house representatives quali- because he lacked member, fications of such a County resident of or the State Laramie Stanley Hatha- Wyoming. Defendants K. herein, Thomson, way Thyra appellees secretary of governor joined as statutory duties state because of certain with enjoined upon them connection along There filed elections. 760 state, and sent secretary of had executed temporary restrain-

pleading a motion for Prosser, Jr., a certificate Dean T. appellee no action thereon is reflect- ing order and which was 24, 1970, The sole relief of election. ed in the record. December On Hathaway was against setting sought appellee as an order to show entered cause was of election not such certificate injunction on that he send hearing preliminary had, therefore 30, The matter was to Prosser. hearing was December 1970. The filing of the 8, completely at the time entered moot January and on the court Hathaway as will be appellee sought and denying hereof as its decree the relief this later is cited It evidenced authorities dismissing prejudice. the causes with appel- opinion. decree that judgment from that or prosecutes appeal.

lant this Thomson, the appellee reference to With sought remedy against her was sole as In addition to entered the the decree Prosser she not include name of January trial court memorandum dated repre- initial roll call the house next findings (1971), 1970 made certain this Under constitution sentatives. our and its own fact conclusions of law on the second session of met pursuant 52(a), initiative and W. Rule January 1971, Tuesday R.C.P., findings which and conclusions are long judicial can take notice that decree, said judgment. referred to in remedy sought passed so that since however, against a general finding made ap- is not against appellee as Thomson appellant. An this memo- examination of plicable. The case of Belondon v. State basis of randum does not clear the make Leimback, Wyo., ex rel. 379 P.2d the decision or concludes that decree. It expresses clearly, wherein it said: appellant grounds failed to for in- establish “ * * * junctive relief has no and that the court beyond question It is settled jurisdiction. at findings are made Other jurisdiction judg- in this when no length some a resident Prosser was effect ment rendered can into be carried legislator but and entitled to as a serve the cause is moot not be consid- and will that the first matter be considered Wyoming [Citing ered. cases.] ”* * * jurisdiction. that of that this court With quarrel. findings have little Further Jones, State ex rel. Schwartz See appellant entitled were made Wyo. P.2d injunctive appar- relief. The trial court therein. cases cited ently holding based its constitutional the relief leaves for This examination provisions, and Art. § § he against Prosser that sought appellee as 1, Wyo.Const. perform not to an oath to be directed take It is the view of court that if the the house as a the duties member proceedings jurisdiction- were dismissed on a member representatives or become al grounds findings out- these other were apparent that the matter thereof. It is scope side inquiry, of the which is also the oath taking insofar as the moot However, appellant. view of the “becoming member there- concerned court will in the hereof examine take a narrow the court of.” If the record in entitle- connection with the hold to moot might matter view appellant ment injunction of the as to an provisions but to Prosser as well as the of the court in a W.R.C.P., grant such 54(c), of Rule matter of trial kind because of the appellant might be entitled relief to finding. court’s dual demanded it had been though even noted that pleadings An examination disclos- is to be pleadings. representa- pro- es the time Prosser the house at of this term of still ceeding appellees, years he is Stanley K. Hatha- for two extends tives way governor Thyra Thomson member thereof.

THE that is material, ACTION WAS PREMATURE one actual and and not merely possible, doubtful, or contin- appellant The record reflects that * * * gent. herein filed a notice contest with the Injunctions See further 43 pp. C.J.S. representatives house of dated December 436-437, n. 60. The existence of a contro- 29, 1970, apparently which was served versy present rights involving is also con- upon appellee Appel Prosser on date. sidered an jurisdiction. essential element recognized lant thereby that the house of 1 Actions, 56, p. 587. Am.Jur.2d representatives power had some to deter qualifications mine the of its members and THE COURT HAD NO JURISDICTION recognized thereby legis the said provisions The constitutional gov body lative had made no determination of erning disposal hereof are set out as fol this matter at peti the date of lows: complaint. tion and simply, Stated 1, Section 2, Wyo.Const.: Art. appear application that this for in powers government “The junction really for an prevent order to state are act divided into three distinct might dependent an de- sole occur— partments legislative, : ly upon The executive action. Prosser could judicial, person or and no collection have taken seat and act persons charged with the legislator ed as a exercise of repre had house powers properly belonging to one of sentatives determined that he did not have departments these shall qualifications exercise to as serve such member. powers belonging dependent properly to either of seating solely His others, except disposal as constitution made of the contest filed with expressly permitted.” or them. directed presumption There is a that offi properly cials have performed or will prop 2, 3, Section Wyo.Const.: Art. erly perform their duties. ex State rel. * * * * * * person No shall be a “ Hansen, Wyo., Pearson 954, v. 401 P.2d * * * representative who is not a 956; Campbell Wyoming Development v. * * * citizen state and who Co., Wyo. 347, 124, 55 136, P.2d 100 re not, twelve at least months next 745; hearing denied 102 P.2d State ex rel. preceding his election resided within the Brooks, Wyo. 393, Irvine v. 14 488, 84 P. county or district which he elect- 491, L.R.A.,N.S., 750, 7 Ann.Cas. 1108. ed.” Surely no court or should issue an 3, 10, Wyo.Const.: Section injunction prevent act ap an or actions “ * * * representatives the house parently by petitioner feared speculated or speaker; shall elect members one of its upon by Recognition him. of this rule has its other offi- each house shall choose been set out in 42 Injunctions, § Am.Jur.2d cers, judge of the election re- shall 31, 767, P. as follows: its members.” turns and “Courts cannot rights determine the urges that Appellant strongly the case of parties in advance existing actual Floyd, Bond 87 S.Ct. v. 385 U.S. controversy concerning them, and the controlling 17 L.Ed.2d is decisive power grant injunctive relief is never strongly just Appellees this case. mpre apprehension exercised allay urge ex rel. Sullivan that the case of State injury, against something merely 698, is 95 P. de- Schnitger, Wyo. v. feared as liable to occur at some indefi- of the trial court’s cisive * * * nite time in the future. assuming of this court’s Elliott, Hall In 15 Wash.2d 131 P. sug- of some result controversy. As the succinctly 2d this rule is set out: there the court argument to gestions from case of Powell is further injunctive sought “Where relief examined McCormack, 89 S.Ct. prevent injury, it must 395 U.S. threatened speculated that the house jectured and the belief that the same L.Ed.2d qualifica- representatives judging the bearing on the have some decide adverse- of members would tions its hereof. peti- of this ly to the asserted contentions Schnitger, ex Sullivan v. rel. State ap- Bond Thirdly, in the tioner. supra, to be there were it is observed directly peared Georgia legislature was general princi- great many statements Amendment of the violation of the First ples affecting jurisdiction of the courts attempting United States Constitution legislator. qualifications of a inquire into indirectly qualifications in addition add reflecting only importance These have directly in the constitution. those stated authority as be- general demarcation case, although The legislative bodies. tween courts case, did hold basis it exclusion was an a in this case involved factual situation judging qualifications, insofar reap- improperly of an claim that members representative was con- the exclusion of a unequal portioned body which involved cerned, legislative confined body was representation qualifications affected directly in the constitution. those stated held to serve. The members case those is, however, complete an- There a rather clearly power very reserved for this was a case, in in the Bond swer and distinction This legislative themselves. bodies e., court, feder- i. the view this by the recent sheen rather dulled has been in that were not faced with courts al courts, state, both federal and activities of system court faces a bar such as the state thought of longer no at the which bridle 2, Wyo. Const. There under Art. § validity reappor- consideration in that separation powers no legislative bodies and have tionments case, very question with real which is reappor- actually proceeded many times to involved, which this court legislatures tion the decision of State since of different branches Bond case involved is, Schnitger. There ex rel. Sullivan v. distinc- governments sovereigns. This however, general rule a declaration by out Mr. clearly tion set judge the title that the exclusive Carr, 369 Baker v. Brennan in the case of body. lies with that to a seat 7 L.Ed.2d 82 S.Ct. U.S. Although appellant does not cite D.C.Tenn., F.Supp. on remand apparently Powell case in his brief and approval cited with which was also it, rely does not this court considers Powell case: the Bond and examination of both “ * * * relationship between necessary proper dis- Powell cases is a the coordinate branch- judiciary and posal attempt indulge in a hereof. No Government, and not es of the Federal complete thereof will analysis or discussion relationship judiciary’s to the the federal made, inso- only actual distinctions but States, ‘political gives rise to the which they appear applicable far at this time question.’ complete- will be set out which make them Carr, Brennan, distinguishable proceeding. in Baker v. ly from this Mr. Justice which give us supra, does certain criteria First, declaratory both sound in cases beyond political question create or define a judgment, is neither asserted nor which judiciary to deter- argument, raised was the brief nor out, mine, at 710: he set 82 S.Ct. wherein any presented lower such re- “ * * * Prominent on the surface quest. Secondly, both cases involve acts political to involve a already and theretofore case held bodies performed textually a demonstrable prior tion is found the action. before, of the issue to pro- constitutional commitment As mentioned at the time this political department; ceeding a coordinate was filed and at the time the hear- ** * impossibility of a court’s or the ing only had thereon it could be con- undertaking opinion Warren’s independent Floyd, resolution with- in Bond v. 87 S. respect Ct. at expressing out lack of the n. 13. due government; coordinate branches opinion is our insofar as the * * * potentiality or the of embar- Powell case is concurring concerned the pronounce- rassment from multifarious opinion Douglas of Mr. appearing departments ments various on one at 89 S.Ct. 1979-1980is better summari- question.” zation framing issues than can was made be done These three of the above criteria establish writer, court or text wherein political question: as a There is he said: “textually constitutional com- demonstrable “ * * * says, impor- As the politi- mitment of the Court issue to coordinate tant department”; constitutional cal is whether impossibility there Congress power “independent has the to deviate the courts to resolu- take from or alter the expressing respect tion lack of the mem- without bership Representative as a contained legislature; due” the state and there is I, 2, Up cl. of the Constitution. certainly possibility “potentiality a clear understanding quite now the been had embarrassment” herein the trial clear to authority the effect attempted court’s of the residen- resolution sure, I, does not exist. To be Art. qualification tial different from that been provides that: ‘Each House shall be the of the body. Elections, Judge of the Returns and There is similarity also a clear factual Qualifications of its own Members importance more this case than was as- to * * *.’ arise Contests over signed arguments in the and that briefs or whether an elected official meets the is the fact the that in both Bond and Pow- Constitution, ‘qualifications’ of the in parties sought ell cases the to be excluded which event is judge. the House the sole by denied a elected seat were the elec- But the House not the sole judge is they presumed repre- tors from districts to when ‘qualifications’ are added which sent and in were reelected both cases. are specified in the Constitution.” county ap- Prosser this was elected from (Emphasis supplied.) parently by margin, large over- applicable This authority case is to this completely look a factor of this is im- sort appears It strongly matter. that “the proper. by This selection the electors is House is the judge.” sole suggested reason as an alternate for as- In examination of two later cases from suming jurisdiction the in case state jurisdictions find we much of interest McCormack, appearing opin- in it in the Lamprey, case of Brown v. N. ion, 89 S.Ct. at 1977: H. 206 A.2d 493. that case there “ * * * principle A fundamental was involved the identical herein representative is, democracy our presented except that the state senate of people words, Hamilton’s ‘that the should Hampshire New refused to seat two candi please govern they choose whom dates from districts of their lack them.’ 257. As Madi- Elliot’s Debates qualification involving residential Convention, pointed son out at requirement person substance a principle by is undermined as much lim- capable should being not be elected a iting people by whom select as senator inhabitant of that unless he was an ”* * * limiting franchise itself. larger district. Both received a candidates principle impor- opponents Mention of this number of votes than their but tant places is also un made in several other found senate to be the state opinion. importance qualified of this is because of their lack of residen qualification, tial passing noted in Mr. in both Chief cases simple troversy over so a declaration. higher receiving the next num candidates * * *» senators. The

ber of seated as votes were observed, disposing of this matter court in immediately This follows statement at A.2d 495: judge of its that the council is the sole Although counsel qualifications. this members’ law in “It been the established did not insist appellant for the in that beginning from is state controlling, he did as- judicial branch the Bond case was the function of wisdom, in the trend law. sert it established new government pass court, stat- rejecting argument, expediency of statutes The desirability and ed, at 441: Legislature. [Citing 239 A.2d enacted too, been court has not So case.] legisla- argue that the “To power pass upon invested with qualifications tures to determine the branch wisdom of the is wall which should its members qualifica- determining government representa- is to maintain that shattered no we have Hence tions its members. way its toward government tive authority disapprove approve prevent own demolition. For by the Senate. thus taken action States catastrophe that the United usur- be a to interfere would this court provide Pennsylvania Constitutions authority the Senate pation courts, and law. And it judges granted the Constitution. of those duty, the framework our within II, In the supra N.H.Const.]. [Pt. by up- Constitutions, that wall to defend plain think it precedents, we light of the sanctity system holding the to in- authority without that this court is separation powers.” constitutional determination terfere with the Senate’s find fault We can little qualified, that the candidate Johnson declaration.1 and Pres- the Lewis and that candidates qualifi- question the of the In our view ** * not. ton were properly before Prosser not cations of in this of examined Another case interest proper the trial court and is therefore not Carroll, Harrington connection is It is not consideration this court. Although that case Pa. 239 A.2d 437. in to be understood from this that we Philadelphia provisions of the the involves of the find- approve disapprove manner Charter, applied principles the Home Rule representatives insofar ing the house of same are the and relied qualifications as determined Prosser’s is interest- in this case. It as involved a resident. Bond since the ing because was Affirmed. the effect of and considers case the court involved here- the Bond case. section McEWAN, (concurring in the be a provides that councilman should in result). is council city of the that the resident I under the circum- concur because. qualifications its judge of the sole correct, result is stances of case the prevent injunction to members. An precluded in fu- but I think we are not Kelly he was a ground seating of examining questions ture similar from lower court sought. The nonresident was may before us in a different which come appellate application and the denied manner. disposal of beginning its court observed in may some- matter words opinion While think clear to I follows: apropos in this case as

what were, in this what the issues I want I and did record think the case did what phenomena striking “It is one appellant said not decide. As the con- could be legal how there world seq. Annotation, et 107 A.L.R. reflecting see 1. For earlier eases this same view 7 n brief, appeal was from decision tween coordinate branches” government. the lower court. The of the lower The court expressly decision held such a determina- prior court down action tion was handed falls within the traditional role ac- legislature. having been taken corded interpret courts to the law and Thus, legislature not does respect the action not involve a “lack of due an noted in issue in this case. As was coordinate government.” [a] [branch] Jus- opinion, tice the Bond I fail to Guthrie’s both find better more current au- thority. cases involved acts prior performed bodies Also, in Rodriguez v. San Antonio Inde- principles announced actions. I believe pendent District, School U.S.D.C.W.Tex. application those cases have some (three-judge court) F.Supp. 280 (De- involving legislative determina- actions cember 1971), recently pointed it was residency. I tion of such as out a court act as “super-legisla- cannot am therefore convinced ture,” judiciary always but the deter- may, or not court whether mine that an act of the is viola- proper application, inquire legisla- into the tive of constitution. residency remains ture’s determination of I do not consider State ex rel. Sullivan any- I Neither do think that unanswered. Schnitger, Wyo. 479, 95 P. 698 thing opinion in the which said would (1908), helpful appellees, because the preclude considering in us from the future actually great length considered at whether or not we examine the apportionment the merits residency brought tion of action there legisla- involved. decided that the keep off ballot. a nonresident being questioned ture was an equitable and legal one and that mandamus should is- McINTYRE, (dissenting). Chief Nevertheless, pleased sue. I am that Jus- puts tice Guthrie at rest the matter reli- simply myself I cannot bring agree on that says ance case when he its sheen the court does have has been rather dulled the recent activi- kind say To unex- case. so leave courts, state, ties of both federal plainable the actions of federal and state longer which no thought bridle at the respect apportionment courts with validity reappor- consideration of the legislatures, strictly prerogative tionments of bodies have legislature pro- under constitutional proceeded many actually reappor- times to matter, that if visions. For courts do legislatures, tion since the in decision State case, jurisdiction have in of this kind then Schnitger, ex Sullivan supra.1 rel. v. they it would hard to understand how A quotation out of context from Bak- of legislature declare acts a unconstitu- Carr, 706, er v. 369 U.S. 82 S.Ct. Legislation tional in consti- case. is a 7 support prop- L.Ed.2d cannot the prerogative legislatures, yet tutional of osition that courts lack in a always duty courts the of have exercised case like the one before us. The Baker declaring their acts unconstitutional when a proposition case is landmark case the necessary. that courts reapportion legislative will bod- McCormack, In Powell v. 395 U.S. despite ies that in the first instance a 89 (1969), S.Ct. 23 L.Ed.2d 491 prerogative constitutional legislatures. rejected the Supreme Court United States the contention that of a opinion determination Even if the Baker inter- question preted pertaining right as holding pass to the of one that courts cannot in produce person sit a would a (cid:127)on the body legisla- a to sit in a body, “potentially be- tive embarrassing holding supersed- confrontation such would be Wyo., Gage, 301; Thomson, 1. See ex rel. 377 State Whitehead P.2d and Schaefer v. D.C.Wyo., F.Supp. (1964). residency is now ren- on ing the matter unequivocal language the clear ed ju- erroneous it was an dered void case. subsequent used in the mat- This leaves determination. There, dicial clearly such determi- court said entirely undeter- residence ter Prosser’s role ac- the traditional nation falls within wrong in trial court was mined. If the interpret the and does courts to law corded did, led an er- and if that doing respect what due a “lack of not involve [a] part leg- assumption roneous on government.” coordinate [branch] islature, it before ought to correct we Floyd, of Bond v. I hate to see cases expense of another put to the Prosser is 235; L.Ed.2d 87 S.Ct. 385 U.S. campaign. election 486, 89 McCormack, 395 and Powell U.S. neatly 491, swept un- 23 L.Ed.2d S.Ct. thing disappointing about The most here, rug are with the they der the a deter- opinion is the absence of Guthrie they distinguishable. are statement that Prosser lives Colo- mination of whether makes Wyoming. McEwan rado Justice distinguishing do we care can all We opinion he considers it clear his that to, it still remains a fact that was determi- open for future still will both that courts clearly held in cases Counsel appropriate action. nation in legislative bodies review action controversy insisted both of this on sides duly elected bodies exclude when such a argument wanted they strongly in oral alleged lack of constitutional member determined residence qualifications. If courts will review court; hoped deci- they our and that for lack action a member is excluded when is- go on an incidental off sion follows, qualification, it of a constitutional sue. courts will likewise review fortiori, a from the silence on only assume I with- a is seated such action member when recognizes that majority a subject qualifica- necessary out the constitutional Prosser, at all times here shows record tions. involved, resident been a bona fide have consideration There is more serious Wyoming. That is and not of Colorado problem in this case. presented We my record. view the imply, opinion say or as the ought not to say- go along I McEwan with Justice does, house of that the Guthrie pre- ing nothing by this court shall representatives made a determination of similar clude a future examination As qualifications as resident. Prosser’s manner; arising tions in a different opinion, points out McEwan not an is- the action hand- the district the decision of case; principles an- sue that the being taken prior ed action down cases nounced the Bond and Powell legislature. That court held Prosser involving application in have some actions County, Wyo- of Laramie resident determination ming. question residency; such Thus, ruling decision of dis- may, applica- upon proper whether courts binding a not a trict court was caveat if tion, legislature’s determi- inquire into the law, only law determination of the and the unanswered; nation remains legislature at that time for the to follow. the fu- nothing is decided which would in legislature must assume the acted as We considering preclude the courts from ture holding did because of the court’s on they or not can examine the whether question residency and not reason brought residency in an action tion of independent determination of its own. keep a off the ballot. nonresident says the district Guthrie now opinions by If there be members court should not have made a deter- such Hence, contrary the conclusions mination. the district court’s hold- McEwan, concurring, with which I am cial words, determination ? other opinions represent be said anyone such cannot a would suggest majority super-judiciary so, court. become a ? If I would hate to think what begin this could to lead Suppose of Prosser’s resi- to. . judicially dence is determined in another suit declaratory such as one judg- of whether Prosser is a ;ment one right legal determine his to vote in bona fide and resident of Colorado or County; one determine clearly Laramie Wyoming judicial one, and I am candidate; suit; abe a divorce or a tax- sure legislature expect members of the suit, ation would anybody suppose in to be the courts. It is unfortu- legislature, event that the subsequent in a nate we postponing are decision session, judi- able override future case.

Case Details

Case Name: State Ex Rel. Schieck v. Hathaway

Court Name: Wyoming Supreme Court

Date Published: Feb 8, 1972

Citation: 493 P.2d 759

Docket Number: 3983

Court Abbreviation: Wyo.