Biscar v. University of Wyoming Bd. of Trustees, No. 5180

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE; PER CURIAM; ROSE
• Citation: 605 P.2d 374
• Parties: Jean P. BISCAR, Appellant (Plaintiff below), v. The UNIVERSITY OF WYOMING BOARD OF TRUSTEES, Gordon H. Brodrick, Christian Bunning, W. R. Gillaspie, Paul O. Hines, Leo P. McCue, Jr., Cameon McEwan, Patrick J. Quealy, Carlin Smith, Joseph B. Sullivan, Virgil L. Thorpe, H. A. True, Jr., Willard V. Wilson, in their official capacity; Dr. William D. Carlson, in his official capacity; or such persons as may have been substituted as parties defendant as a member of the Board of Trustees, or President of the University and serving in such official capacity; Robert McCulloch, W. T. Grandy, Jr., and E. Gerald Meyer, Individually, Appellees (Defendants below).
• Decision Date: 23 January 1980
• Docket Number: No. 5180

Page 374

605 P.2d 374 Jean P. BISCAR, Appellant (Plaintiff below),
v.
The UNIVERSITY OF WYOMING BOARD OF TRUSTEES, Gordon H. Brodrick, Christian Bunning, W. R. Gillaspie, Paul O. Hines, Leo P. McCue, Jr., Cameon McEwan, Patrick J. Quealy, Carlin Smith, Joseph B. Sullivan, Virgil L. Thorpe, H. A. True, Jr., Willard V. Wilson, in their official capacity; Dr. William D. Carlson, in his official capacity; or such persons as may have been substituted as parties defendant as a member of the Board of Trustees, or President of the University and serving in such official capacity; Robert McCulloch, W. T. Grandy, Jr., and E. Gerald Meyer, Individually, Appellees (Defendants below). No. 5180. Supreme Court of Wyoming. Jan. 23, 1980.

C. M. Aron and Richard A. Hennig of Aron & Hennig, Laramie, for appellant.

Joseph R. Geraud, Sp. Asst. Atty. Gen., Laramie, and William R. Jones and Karen Maurer, Sp. Asst. Attys. Gen., Wheatland, for appellees.

Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. ^*

Page 375

PER CURIAM.

From 1969 until 1975, Jean Biscar, plaintiff-appellant, was employed as an assistant professor at the University of Wyoming. The University interprets the employment as consisting of a series of temporary appointments, while Mr. Biscar contends the employment was represented to him as a "tenure-track" ¹ appointment. Biscar was terminated without a formal tenure hearing, whereupon he filed suit in a state district court against defendants-appellees, members of the University's Board of Trustees, in their official capacities, and the University President in his official capacity. Biscar asked back pay, reinstatement and consideration for tenure. He further alleged the existence of an employment contract with respect to which he sought specific performance, and lastly he charged the defendants with violations of his federal rights under the Fourteenth Amendment, as interpreted in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and similar cases.

Appellees responded with a motion to dismiss on the ground that they enjoyed sovereign immunity. Decision on this motion was delayed pending a trial on the merits, after which judgment was entered in favor of the appellees on both the merits and the motion to dismiss.

The claim of sovereign immunity "raises the threshold question, of which disposal must be made before we can proceed further into this inquiry." Retail Clerks Local 187 v. University of Wyoming, Wyo., 531 P.2d 884, 886 (1975).

We will affirm the dismissal by the district court on the grounds of sovereign immunity and will, therefore, not undertake a consideration of any other issues. Retail Clerks Local 187, supra.

Sovereign Immunity

In Worthington v. State, Wyo., 598 P.2d 796 (1979), this court was asked but refused to abolish the doctrine of state sovereign immunity, holding that the state may not be sued without consent. We said in Worthington :

"There are few, if any, precedents or rules that have been recognized longer or followed with greater fidelity than the rule that was set out in the case of Hjorth Royalty Company v. Trustees of University, 30 Wyo. 309, 222 P. 9 (1924), which held that Art. 1, § 8, Wyoming Constitution, is not self-executing; that no suit can be maintained against the State until the legislature makes provision for such filing; and, that absent such consent, no suit or claim could be made against the State. This was followed in several cases down through and including the case of Retail Clerks Local 187 AFL-CIO v. University of Wyoming, supra; and see further the following cases which give recognition to this rule: Utah Construction Company v. State Highway Commission, 45 Wyo. 403, 19 P.2d 951 (1933); Price v. State Highway Commission, 62 Wyo. 385, 167 P.2d 309, 312 (1946); Harrison v. Wyoming Liquor Commission, 63 Wyo. 13, 177 P.2d 397, 402 (1947); Ellis v. Wyoming Game and Fish Commission, 74 Wyo. 226, 229, 286 P.2d 597 (1955); and Hamblin v. Arzy, Wyo., 472 P.2d 933, 934 (1970). . . ." 598 P.2d at 801.

The University of Wyoming, together with its officers, as they undertake to act in their official capacities, enjoy sovereign immunity since a suit against the University or these officers is a suit against the state. Retail Clerks Local 187, supra, citing Williams v. Eaton, 10 Cir., 443 F.2d 422, on remand D.C., 333 F.Supp. 107, affirmed 10 Cir., 468 F.2d 1079, and...