Thomson v. Wyoming In-Stream Flow Committee, IN-STREAM

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore ROSE, C. J., RAPER, THOMAS and ROONEY, JJ., and GUTHRIE; RAPER, THOMAS and ROONEY, Justices, and GUTHRIE; ROSE
Citation651 P.2d 778
PartiesSecretary of State of Wyoming, Thyra THOMSON, Appellant (Respondent), v. WYOMINGFLOW COMMITTEE and its sponsors, Dr. Charles Walter, Dr. Charles Stebner, and Bruce E. Collins, Appellees (Petitioners). WYOMINGFLOW COMMITTEE and its sponsors, Dr. Charles Walter, Dr. Charles Stebner, and Bruce E. Collins, Appellants (Petitioners), v. Secretary of State of Wyoming, Thyra THOMSON, Appellee (Respondent).
Decision Date22 September 1982
Docket Number5750A,Nos. 5750,IN-STREAM

Page 778

651 P.2d 778
Secretary of State of Wyoming, Thyra THOMSON, Appellant (Respondent),
v.
WYOMING IN-STREAM FLOW COMMITTEE and its sponsors, Dr. Charles Walter, Dr. Charles Stebner, and Bruce E. Collins, Appellees (Petitioners).
WYOMING IN-STREAM FLOW COMMITTEE and its sponsors, Dr. Charles Walter, Dr. Charles Stebner, and Bruce E. Collins, Appellants (Petitioners),
v.
Secretary of State of Wyoming, Thyra THOMSON, Appellee (Respondent).
Nos. 5750, 5750A.
Supreme Court of Wyoming.
Sept. 22, 1982.

Page 780

Don W. Riske of Riske & Edmonds, P. C., Cheyenne, for amicus curiae, League of Women Voters of Wyoming, in support of the position of appellee.

John A. Sundahl and George E. Powers, Jr. of Godfrey & Sundahl, Cheyenne, for amici curiae, Wyoming Farm Bureau Federation, Wyoming Wool Growers Ass'n and the Wyoming Stock Growers Ass'n, in support of the position of appellant.

Steven F. Freudenthal, Atty. Gen., argued, Bruce A. Salzburg, Senior Asst. Atty. Gen. and Rowena L. Heckert, Asst. Atty. Gen., for appellant.

E. Michael Weber of Lonabaugh & Riggs, Sheridan, argued, for appellees.

Before ROSE, C. J., RAPER, THOMAS and ROONEY, JJ., and GUTHRIE, J., Retired.

RAPER, THOMAS and ROONEY, Justices, and GUTHRIE, Justice, Retired.

This appeal involves the role of the Secretary of State, appellant (Secretary), in the performance of her duties relating to initiative and referendum pursuant to Art. 3, § 52, Wyoming Constitution implemented by § 22-24-101, et seq., W.S.1977. Appellees (Committee) went through the preliminary procedures for initiating a proposed law for referral to the people by ballot at a statewide election. Petitions on Secretary-approved forms were circulated statewide. Upon submission of the petitions by the Committee to the Secretary containing some 30,822 signatures, she determined, through a review process, it lacked a sufficient number of signatures of qualified registered voters, was therefore improperly filed, and the proposed law could not be submitted to the electors at the 1982 general election.

The Committee was aggrieved by the determination and pursuant to § 22-24-122, W.S.1977, brought an action in the Laramie County District Court for review. The district judge reversed the decision of the Secretary and remanded the matter to her for preparation of a ballot proposition for the 1982 general election ballot, for the ultimate reason that the Secretary, as only a ministerial administrative officer, has no authority to challenge signatures or to inquire into the validity or the qualifications of the persons signing, and the petitions should have been presumed valid. On appeal, the Secretary presents the issue of whether that legal conclusion of the district judge is correct.

The other issues which we must consider are raised by the Committee in its cross appeal:

2. Is the Wyoming Initiative and Referendum Statute unconstitutional to the extent it requires signatures to be of qualified registered voters, rather than merely qualified voters?

3. The Secretary failed to follow the Administrative Procedure Act in adopting procedures for the handling and control of the initiative petitions and in making determinations of general applicability to initiative petitions.

4. Even assuming the Secretary had either the authority or obligation to conduct a verification procedure, the procedure adopted by the Secretary was arbitrary, capricious and characterized by an abuse of discretion.

5. The Secretary's decision was arbitrary, capricious, and characterized by an abuse of discretion or otherwise unlawful

Page 781

for failure to explain how she arrived at her facts and conclusions.

Because of an interplay between the issues, they are not sharply divided in our discussion.

The subject matter of the proposed in-stream flow law is immaterial to our consideration and decision. 1

We will reverse the district court and reinstate the Secretary's determination.

Article 3, § 52, Wyoming Constitution with respect to initiative and referendum provides in pertinent part:

"(a) The people may propose and enact laws by the initiative, and approve or reject acts of the legislature by the referendum.

"(b) An initiative or referendum is proposed by an application containing the bill to be initiated or the act to be referred. The application shall be signed by not less than one hundred (100) qualified voters as sponsors, and shall be filed with the secretary of state. If he finds it in proper form he shall so certify. Denial of certification shall be subject to judicial review.

"(c) After certification of the application, a petition containing a summary of the subject matter shall be prepared by the secretary of state for circulation by the sponsors. If signed by qualified voters, equal in number to fifteen per cent (15%) of those who voted in the preceding general election and resident in at least two-thirds ( 2/3) of the counties of the state, if [it] may be filed with the secretary of state.

"(d) An initiative petition may be filed at any time except that one may not be filed for a measure substantially the same as that defeated by an initiative election within the preceding (5) years. The secretary of state shall prepare a ballot title and proposition summarizing the proposed law, and shall place them on the ballot for the first statewide election held more than one hundred twenty (120) days after adjournment of the legislative session following the filing. If, before the election, substantially the same measure has been enacted, the petition is void.

* * *

* * *

"(f) * * * Additional procedures for the initiative and referendum may be prescribed by law."

The constitutional provisions have been implemented as authorized by § 52(f), supra, by additional procedures through § 22-24-101, et seq., W.S.1977, which read in pertinent part:

Section 22-24-114:

"(a) Before petition is filed, it shall be verified by the sponsor who personally circulated it. The verification shall be in affidavit form and shall state in substance that:

"(i) The person signing the affidavit is a sponsor and is the only circulator of that petition;

"(ii) The signatures on the petition were made in his presence; and

"(iii) To the best of his knowledge, such signatures are those of the persons whose names they purport to be. In determining the sufficiency of the petition, the secretary of state shall not count signatures on petitions not properly verified."

Section 22-24-115:

"The sponsors may file petitions with the secretary of state if signed by qualified registered voters equal in number to fifteen percent (15%) of those who voted in the preceding general election and resident in at least two-thirds of the counties

Page 782

of the state. The sponsor of a petition for referendum may file the same only within ninety (90) days after the adjournment of the legislative session at which the act was passed. The ninety (90) day limitation shall not apply with reference to an act passed previous to January 1, 1973, if the application is filed prior to June 10, 1973."

Section 22-24-116:

"(a) Within not more than sixty (60) days of the date the petition is filed, the secretary of state shall review it and shall notify the committee whether the petition was properly or improperly filed. The petition shall be determined to be improperly filed if:

"(i) There is an insufficient number of signatures of qualified registered voters;

"(ii) The subscribers were not resident in at least two-thirds of the counties of the state; or

"(iii) The petition is for referendum and was not filed within ninety (90) days after the adjournment of the legislative session at which the act was passed. The ninety (90) day limitation shall not apply with reference to an act passed previous to January 1, 1973, if the application is filed prior to June 10, 1973."

Within these constitutional and statutory provisions we see key expressions and words which will unlock the answer to the issues before us. The petition to place the proposed law on the ballot may only be filed with the Secretary "[i]f signed by qualified voters, equal in number to fifteen per cent (15%) of those who voted in the preceding general election and resident in at least two-thirds ( 2/3) of the counties of the state * * *," Art. 3, § 52(c), Wyoming Constitution, supra; the legislature requires that the petitions be signed by "qualified registered voters," § 22-24-115, W.S.1977, supra. The legislature, as authorized, prescribed by law the additional procedure that within sixty days of the date the petition is filed in the office of the Secretary, the Secretary "shall review it and shall notify the committee whether the petition was properly or improperly filed." While the constitution provides it shall not be filed unless it has the requisite signatures, we construe the legislative version to mean that the petition is initially deposited with the Secretary in order that it may be reviewed for adequacy to determine whether there are the required number of signatures from two-thirds of the state's counties and the subscribers are qualified registered voters. If properly filed, the proposition may then be placed on the ballot; if not adequate, it will be considered improperly filed and the proposition will not be placed on the ballot. Section 22-24-116, W.S.1977, supra.

The language of the constitution and the language of a statute are construed similarly. In determining the meaning of words within a constitutional provision, this court must consider the probable intention of the framers of the constitution in adopting the constitutional provision. Witzenburger v. State ex rel. Wyoming Community Development Authority, Wyo., 575 P.2d 1100 (1978). In the instance before us, the constitutional provision was framed by the Wyoming State Legislature. Original Senate Joint Resolution No. 3, Session Laws of Wyoming, 1967, pp. 729-730. In construing constitutional provisions, the fundamental...

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  • Fraternal Order of Eagles Sheridan v. State, No. 05-57.
    • United States
    • United States State Supreme Court of Wyoming
    • January 10, 2006
    ...and any doubt in the matter must be resolved in favor of the statute's constitutionality. Thomson v. Wyoming In Stream Flow Committee, 651 P.2d 778, 789-90 (Wyo.1982). [Appellant] bears the burden of proving the statute is unconstitutional. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 961 R......
  • Cloud v. State, No. S–11–0102.
    • United States
    • United States State Supreme Court of Wyoming
    • February 9, 2012
    ...and any doubt in the matter must be resolved in favor of the statute's constitutionality. Thomson v. Wyoming In–Stream Flow Committee, 651 P.2d 778, 789–90 (Wyo.1982). [Appellant] bears the burden of proving the statute is unconstitutional. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 961 (......
  • Director, Office of State Lands v. Merbanco, No. 01-261
    • United States
    • United States State Supreme Court of Wyoming
    • June 6, 2003
    ...931 (Wyo.2000); Wyoming Coalition v. Wyoming Game & Fish Commission, 875 P.2d 729 (Wyo.1994); Thomson v. Wyoming In-Stream Flow Committee, 651 P.2d 778 (Wyo.1982); Uhls v. State ex rel. City of Cheyenne, 429 P.2d 74 (Wyo.1967); Taxpayers' League of Carbon County, Wyo. v. McPherson, 49 Wyo. ......
  • Powers v. State, No. S-13-0052
    • United States
    • United States State Supreme Court of Wyoming
    • January 3, 2014
    .... . . Any doubt in the matter must be resolved in favor of the statute's constitutionality." Thomson v. Wyoming In-Stream Flow Committee, 651 P.2d 778, 789-90 (Wyo. 1982).Krenning v. Heart Mt. Irrigation Dist., 2009 WY 11, ¶ 33, 200 P.3d 774, 784 (Wyo. 2009). However, we have also recognize......
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69 cases
  • Fraternal Order of Eagles Sheridan v. State, No. 05-57.
    • United States
    • United States State Supreme Court of Wyoming
    • January 10, 2006
    ...and any doubt in the matter must be resolved in favor of the statute's constitutionality. Thomson v. Wyoming In Stream Flow Committee, 651 P.2d 778, 789-90 (Wyo.1982). [Appellant] bears the burden of proving the statute is unconstitutional. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 961 R......
  • Cloud v. State, No. S–11–0102.
    • United States
    • United States State Supreme Court of Wyoming
    • February 9, 2012
    ...and any doubt in the matter must be resolved in favor of the statute's constitutionality. Thomson v. Wyoming In–Stream Flow Committee, 651 P.2d 778, 789–90 (Wyo.1982). [Appellant] bears the burden of proving the statute is unconstitutional. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 961 (......
  • Cathcart v. Meyer, No. 04-32
    • United States
    • United States State Supreme Court of Wyoming
    • May 4, 2004
    ...and any doubt in the matter must be resolved in favor of the statute's constitutionality. Thomson v. Wyoming In Stream Flow Committee, 651 P.2d 778, 789-90 (Wyo.1982). [Appellant] bears the burden of proving the statute is unconstitutional. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 961 (......
  • Director, Office of State Lands v. Merbanco, No. 01-261
    • United States
    • United States State Supreme Court of Wyoming
    • June 6, 2003
    ...931 (Wyo.2000); Wyoming Coalition v. Wyoming Game & Fish Commission, 875 P.2d 729 (Wyo.1994); Thomson v. Wyoming In-Stream Flow Committee, 651 P.2d 778 (Wyo.1982); Uhls v. State ex rel. City of Cheyenne, 429 P.2d 74 (Wyo.1967); Taxpayers' League of Carbon County, Wyo. v. McPherson, 49 Wyo. ......
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