Wyoming Nat. Abortion Rights Action League v. Karpan

• Decision Date: 07 September 1994
• Docket Number: Nos. 94-8,94-9,s. 94-8
• Citation: 881 P.2d 281
• Parties: WYOMING NATIONAL ABORTION RIGHTS ACTION LEAGUE; Wyoming National Organization for Women; Jane Courage; Dr. Brent A. Blue; Dr. Jacques Roux; Sharon Breitweiser; Rebecca L. Archer; Lori Bowdler; and Rev. Warren Murphy, Appellants (Plaintiffs), v. Kathy KARPAN, Secretary of State, State of Wyoming; Unseen Hands Prayer Circle Political Action Committee; Kathy Helling; Richard R. Larson; and Alan C. Stauffer, Appellees (Defendants). PLANNED PARENTHOOD OF WYOMING; Campbell County Voices for Choice; Carbon County Coalition for Choice; Converse County Coalition for Choice; Fremont County Pro-Choice Network; Teton County Coalition for Choice; and Cindy Chace, Appellants (Plaintiffs), v. Kathy KARPAN, Secretary of State, State of Wyoming, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 281

881 P.2d 281

WYOMING NATIONAL ABORTION RIGHTS ACTION LEAGUE; Wyoming National Organization for Women; Jane Courage; Dr. Brent A. Blue; Dr. Jacques Roux; Sharon Breitweiser; Rebecca L. Archer; Lori Bowdler; and Rev. Warren Murphy, Appellants (Plaintiffs), v. Kathy KARPAN, Secretary of State, State of Wyoming; Unseen Hands Prayer Circle Political Action Committee; Kathy Helling; Richard R. Larson; and Alan C. Stauffer, Appellees (Defendants).

PLANNED PARENTHOOD OF WYOMING; Campbell County Voices for Choice; Carbon County Coalition for Choice; Converse County Coalition for Choice; Fremont County Pro-Choice Network; Teton County Coalition for Choice; and Cindy Chace, Appellants (Plaintiffs), v. Kathy KARPAN, Secretary of State, State of Wyoming, Appellee (Defendant).

Nos. 94-8, 94-9.

Supreme Court of Wyoming.

Sept. 7, 1994.

Kate M. Fox of Burgess, Davis & Cannon, Cheyenne, Kathryn Kolbert and Simon Heller, the Center for Reproductive Law & Policy, New York City, for appellant Wyoming Nat. Abortion Rights Action League.

Robert M. Shively of Murane & Bostwick, Casper, Roger Evans and Carole Chervin, Planned Parenthood Federation of America, New York City, for appellant Planned Parenthood of Wyoming.

Joseph B. Meyer, Atty. Gen., Michael L. Hubbard, and Rowena L. Heckert, Senior Asst. Attys. Gen., for appellee Kathy Karpan, Secretary of State, State of Wyo.

Richard H. Honaker of Honaker, Hampton & Newman, Rock Springs, for appellee Unseen Hands Prayer Circle Political Action Committee, Richard R. Larson, and Alan C. Stauffer.

Richard L. Williams and Barry G. Williams of Williams, Porter, Day & Neville, Casper, for appellee Kathy Helling.

Before GOLDEN, C.J., THOMAS, MACY, ^* and TAYLOR, JJ., and CARDINE, ^** J. (Retired).

THOMAS, Justice.

The major concern in these consolidated cases is whether this court should order that an initiative measure not be placed on the general election ballot because of its potential unconstitutionality, if enacted. Embraced within this question are issues relating to the existence of a justiciable controversy; the unconstitutionality vel non of the proposed initiative measure; the constitutional invalidity of the measure because the title and summary do not clearly express its subject, and the body of the initiative contains more than a single subject; and whether the correct election year was selected for the purpose of tabulating the required number of signatures. Recognizing a split of authority with respect to the existence of a justiciable controversy, we hold that, if enacted, the measure The appellants in these consolidated cases essentially represent the pro-choice stance with respect to abortion. They state that the issues are:

would not be unconstitutional in its entirety under current federal standards. It follows that it should be included in the general election ballot unless one or more of the alternative grounds urged by the appellants is valid. We further hold that the title of the measure is sufficient; it does not contain more than one subject; and the correct general election year was applied to tabulate the required number of signatures. We affirm the decision of the district court in denying relief by its Order of Dismissal.

A. Does a pre-enactment challenge to a ballot initiative present a justiciable controversy under the Wyoming Constitution?

B. Do the ballot initiative's title and summary fail to clearly express the bill's subject as required by Wyo. Const. art. III § 24?

C. Does the challenged ballot initiative violate the single subject rule expressed in Wyo. Const. art. III § 24 and Wyo.Stat. § 22-24-105?

D. Was the Secretary of State's use of the number of voters in the 1990 election rather than the 1992 election a violation of the requirement at Wyo. Const. art. III § 52(c) that signatures be obtained from 15% "of those who voted in the preceding general election?"

The appellees, other than the Secretary of State, represent the pro-life stance. The pro-life faction sets forth the issues in this way:

1. Is a pre-enactment challenge to the substantive constitutionality of legislation proposed by a ballot initiative justiciable where the proposed legislation could have been enacted by the legislature itself?

2. If such a pre-enactment challenge is justiciable, can Appellants, under the facial challenge rule, show that the legislation proposed by this initiative, in its entirety, is unconstitutional in every conceivable application?

3. Does the legislation proposed by the challenged ballot initiative violate the single subject rule of Art. 3, § 24 of the Wyoming Constitution?

4. Are Appellants' contentions relating to the title and summary of the proposed bill, including their single subject rule contention, barred by the applicable statute of limitations?

5. Does Art. 3, § 52(c) of the Wyoming Constitution require the petition filed with the Secretary of State to have been signed by qualified voters equal in number to 15 percent of those persons who voted in the 1992 general election or 15 percent of those persons who voted in the 1990 general election, where, prior to the 1992 general election, the petition had been signed by qualified voters equal in number to 15 percent of those who voted in the 1990 general election?

A separate brief was filed by Kathy Helling, in which the issues are articulated in this way:

1. Should a court in Wyoming intervene in the political process of initiative law-making to impose constitutional orthodoxy upon an as-yet-unenacted measure?

2. Does the record support Appellants' claim that the challenged ballot initiative was deceptive to the signatories and would deceive voters in the general election?

3. Does the record support Appellants' challenge to the number of signatures required in order to place the initiative on the 1994 ballot?

The Secretary of State adopts the same issues as those set forth by the pro-choice faction.

The issues in this case are substantially pure issues of law. The essential fact is the text of the proposed initiative measure, and it is attached as Appendix A. To the extent that other facts are significant, we will incorporate them in our discussions of the several issues.

A conclusion that no justiciable controversy is present would resolve this case and demand its dismissal. We articulated the necessary elements for a justiciable controversy under our Uniform Declaratory Judgments Act, WYO.STAT. §§ 1-37-101 to 115 (1988) in Brimmer v. Thomson, 521 P.2d 574 "First, a justiciable controversy requires parties having existing and genuine, as distinguished from theoretical, rights or interests. Second, the controversy must be one upon which the judgment of the court may effectively operate, as distinguished from a debate or argument evoking a purely political, administrative, philosophical or academic conclusion. Third, it must be a controversy the judicial determination of which will have the force and effect of a final judgment in law or decree in equity upon the rights, status or other legal relationships of one or more of the real parties in interest, or, wanting these qualities be of such great and overriding public moment as to constitute the legal equivalent of all of them. Finally, the proceedings must be genuinely adversary in character and not a mere disputation, but advanced with sufficient militancy to engender a thorough research and analysis of the major issues." (Emphasis supplied [by Brimmer court].)

578 (Wyo.1974) (quoting from Sorenson v. City of Bellingham, 80 Wash.2d 547, 496 P.2d 512, 517 (1972)):

Application of these elements leads us to conclude that the first is met because both the pro-life parties and the pro-choice parties have current, concrete rights or interests relating to this controversy. Our judgment, either allowing the initiative to be included on the ballot, or precluding its inclusion, would effectively operate upon the factual dispute between these parties. Thus, the second element is satisfied. As to the third element, our determination will have the force and effect of a final judgment upon the rights, status, or other legal relationships of the real parties in interest. See Rocky Mountain Oil & Gas Ass'n v. State, 645 P.2d 1163 (Wyo.1982) (holding that if a declaratory judgment will not end the controversy, it is not proper). We also perceive this matter as one involving great and overriding public moment. See Washakie County Sch. Dist. No. 1 v. Herschler, 606 P.2d 310 (Wyo.1980), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28. There can be little question here that these proceedings are sufficiently "genuinely adversary in character" as to satisfy the fourth element of the Brimmer test. The parties quite vigorously support their own position and oppose the contrary stance with equal vigor. Indeed, we can judicially notice that this is an issue of deep, bitter, and sometimes violent debate throughout this country.

We hold there is nothing in our law relating to justiciability that would inhibit the consideration of this case. See Reiman Corp. v. City of Cheyenne, 838 P.2d 1182 (Wyo.1992). This conclusion is compatible with the policy proclamation found in WYO.STAT. § 1-37-107, which states that specific enumerations do not limit or restrict the exercise of the general powers conferred under the act.

We acknowledge that the power of the electorate to enact laws through the initiative process is of "equal dignity" to the power of the legislature to adopt statutes. An apt statement of this concept is found in 82 C.J.S. Statutes § 118 (1953):

Through the initiative the people are a coordinate legislative body with co-extensive legislative power, exercising the same power of sovereignty in passing on measures as that exercised by the legislature in passing laws. Statutes enacted by the people directly under the initiative are of equal dignity with those passed by the legislature, for the result is the same in either...