Retail Clerks Local 187 AFL-CIO v. University of Wyoming

Decision Date29 January 1975
Docket NumberNo. 4365,AFL-CIO and J,4365
Citation531 P.2d 884
Parties88 L.R.R.M. (BNA) 2781, 76 Lab.Cas. P 53,585 RETAIL CLERKS LOCAL 187F. Brown et al., Appellants (Plaintiffs below), v. UNIVERSITY OF WYOMING et al., Appellees (Defendants below).
CourtWyoming Supreme Court

John J. Rooney, Rooney & Horiskey, Cheyenne, for appellants.

David B. Kennedy, Atty. Gen., Joseph R. Geraud and Barbara Erickson, Sp. Asst. Attys. Gen., and Patricia Linenberger, Legal Intern, Cheyenne, for appellees.

Charles E. Graves and Patrick E. Hacker, Cheyenne, for amicus curiae Wyoming Education Association.

Before PARKER, C. J. * , McEWAN, ** GUTHRIE, and McCLINTOCK, JJ., and MAIER, D. J.

GUTHRIE, Justice.

Appellants herein filed their complaint, seeking a declaratory judgment, an injunction, damages, and other equitable relief, and joined as defendants the University of Wyoming and William D. Carlson, individually and as President of the University of Wyoming, and all the members of the board of trustees, individually and as trustees. Appellants appeal from an order sustaining a motion to dismiss filed on behalf of all the defendants. We have by order allowed the filing of a brief and argument by the Wyoming Education Association as amicus curiae.

Appellants sought a declaration of their rights, status and relations in their employment and to guarantee to them the right to organize, to negotiate, to bargain with respect to wages, rates of pay, and conditions of employment, to have the Retail Clerks Local 187 AFL-CIO act as their bargaining agent and to represent them, the right to have payroll deductions made and paid by the university to the union, the right of the board of trustees to enter into a collective bargaining agreement, and to restrain and enjoin defendants and their employees from refusing to recognize or bargain with their selected representative or denying these individuals the right to be members of the union as a condition of their employment, and sought a declaration that the Retail Clerks Union has the right to represent these individual plaintiffs and be their exclusive representative.

Although the motion to dismiss raises several grounds, we must first consider the asserted ground 'that the Court lacks jurisdiction over the subject matter because of the Doctrine of Sovereign Immunity which precludes any action against the State of Wyoming, the University of Wyoming, the Board of Trustees of the University of Wyoming, and governing officials of said University. Further, that there has been no consent by the State of Wyoming to submit itself to suit.' This raises the threshold question, of which disposal must be made before we can proceed further into this inquiry. The legislature has made a declaration that a suit against the trustees of the university is a suit against the State (§ 1-1018, W.S.1957), 1957), and it was held in Williams v. Eaton, 10 Cir., 443 F.2d 422, on remand D.C., 333 F.Supp. 107, affirmed 10 Cir., 468 F.2d 1079, that the board of trustees was immune from suit. The case of Hjorth Royalty Co. v. Trustees of University of Wyoming, 30 Wyo. 309, 222 P. 9, also held that a suit against the trustees was a suit against the State and could not be brought unless the State had consented. 1 Appellants assert that this is not an action against the State but to enforce a proprietary function and ministerial task, thus not being the subject of governmental immunity, and further contend that consent has been given by the State to be made a party to declaratory judgment actions under §§ 1-1051 and 1-1052, W.S.1957, derived from the Uniform Declaratory Judgments Act. We find no words of clear or direct consent to suit against the State contained in these statutes, and consent must be clearly shown, Hjorth Royalty Co. v. Trustees of University of Wyoming, supra; Harrison v. Wyoming Liquor Commission, 63 Wyo. 13, 177 P.2d 397. The Federal Declaratory Judgments Act has been held not to constitute consent to suit against the United States but only that it gives an additional remedy when such jurisdiction already exists, 22 Am.Jur.2d Declaratory Judgments, § 85, p. 948. This is also true of the states where the Uniform Declaratory Judgments Act has been adopted, American Federation of Labor v. Mann, Tex.Civ.App., 188 S.W.2d 276, 279, with much authority therein cited. Also see Empire Trust Co. v. Board of Commerce and Navigation, 124 N.J.L. 406, 11 A.2d 752, 754; Davis v. State, 183 Md. 385, 37 A.2d 880, 885; Purity Oats Co. v. State, 125 Kan. 558, 264 P. 740; Borchard, Declaratory Judgments, p. 374 (2d Ed.); 1 Anderson, Actions for Declaratory Judgments, § 179, p. 346 (2d Ed.). Thus, the University of Wyoming and the board of trustees of that institution are immune from suit under the Declaratory Judgments Act and the motion was correctly sustained insofar as it concerned these parties: The University of Wyoming and the board of trustees.

The question of the immunity of the president and the board of trustees individually is not as clear, as there are cases under different factual situations which seem to permit declaratory judgment actions against such officers. This question requires examination as it should be evident that, unless carefully applied, to allow suits against officials in their individual capacity would result in the complete destruction of sovereign immunity.

The Supreme Court of the United States has announced a simple and workable rule which we deem a most reliable guideline in a determination of this matter when it said:

'As to what is deemed a suit against a state, the early suggestion that the inhibition might be confined to those in which the state was a party to the record (citations) has long since been abandoned, and it is now established that the question is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record (citations).' In re State of New York, 256 U.S. 490, 500, 41 S.Ct. 588, 590, 65 L.Ed. 1057.

Also see Anderson v. Argraves, 146 Conn. 316, 150 A.2d 295, 297; Stucker v. Muscatine, 249 Iowa 485, 87 N.W.2d 452, 456. A most complete discussion of this appears in Schwing v. Miles, 367 Ill. 436, 11 N.E.2d 944, 947, 113 A.L.R. 1504, where the following appears:

'* * * While a suit against state officials, and, in particular, the Director of the Department of Public Works and Buildings, is not necessarily a suit against the state, the constitutional inhibition cannot be evaded by making an action nominally one against the servants or agents of the state when the real claim is against the state itself, and it is the party vitally interested. * * *'

The board of trustees is entrusted with very general powers (§ 21-353, W.S.1957, 1973 Cum.Supp.) including the right to 'elect * * * employees' for the conduct and management of the university wich a general delegation of powers as follows:

'* * * and finally to exercise any and all other functions properly belonging to such a board and necessary to the prosperity of the university in all its departments.'

In the operation of this institution the board of trustees has occasion to employ these individual plaintiffs and others similarly situate. Any agreement or contracts made by the board of trustees would obligate and be a charge upon the State funds appropriated for the operation of the university and any agreement with the plaintiffs as to the rate of pay would impose liability upon the State for the amounts thereof, and any judgment herein in the terms sought by the appellants would control the operation of that institution in this area by its commands to the president and these trustees as individuals and would effectively achieve by indirection what is strictly forbidden directly. These words from Harrision, supra, 177 P.2d at 402, are particularly applicable:

'In 59 C.J. 308, 309, it is stated that a suit is against the state wherein a state officer or agency is, or will be, required to use state property or funds in order to afford the relief demanded, or which seeks to compel officers or agents to do acts which will impose contractual liability on the state. * * *'

Thus we must conclude that insofar as this action was directed to these parties individually, it is in fact an action against the State and the motion was properly sustained as to them. Because of the view that the court was without jurisdiction we cannot engage in any comments upon the proposition urged by appellants as they would be advisory in character, Brimmer v. Thomson, Wyo., 521 P.2d 574, 579.

Appellants contend that insofar as the damage action is concerned the functions here involved are proprietary and ministerial and not governmental and that therefore immunity is not a defense, and cite in support thereof Town of Douglas v. York, Wyo., 445 P.2d 760; South Cheyenne...

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