IN THE SUPREME COURT, STATE OF WYOMING
2023 WY 61
APRIL TERM, A.D. 2023
June 13, 2023
MONTY ELLIOTT,
Appellant
(Petitioner),
v.
S-22-0280
NATRONA COUNTY BOARD OF
COMMISSIONERS,
Appellee
(Respondent).
Appeal from the District Court of Natrona County
The Honorable Daniel L. Forgey, Judge
Representing Appellant:
Stephen R. Winship, Winship & Winship, P.C., Casper, Wyoming. Argument by
Mr. Winship.
Representing Appellee:
Eric K. Nelson,* former County Attorney; Charmaine Reed, Acting County
Attorney; Jared D. Holbrook, Deputy County Attorney, Natrona County Attorney’s
Office, Casper, Wyoming. Argument by Mr. Holbrook.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
* An Order Allowing Withdrawal of Counsel was entered on March 17, 2023.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
GRAY, Justice.
[¶1] The Natrona County Board of Commissioners (the Board) denied Monty Elliott’s
application to transfer a liquor license to him. The district court dismissed Mr. Elliott’s
appeal concluding it lacked jurisdiction. Mr. Elliott appeals asserting that the district court
has jurisdiction over his procedural claims. He contends the Board violated his due process
rights because it failed to conduct a contested case hearing in violation of the Wyoming
Administrative Procedure Act (WAPA), Wyo. Stat. Ann. §§ 16-3-101 through -115. He
also seeks to hold the individual commissioners liable for violations of the Wyoming Public
Meetings Act, Wyo. Stat. Ann. §§ 16-4-401 through -408. We dismiss for lack of
jurisdiction.
ISSUE
[¶2] Mr. Elliott identifies eight issues on appeal. We find the jurisdictional issue
dispositive.
Did the district court have subject matter jurisdiction to hear a
direct appeal from the Board’s denial of a liquor license
transfer?
FACTS
[¶3] The basis for Mr. Elliott’s transfer application is found in a separate lawsuit between
Mr. Elliott and CC Cowboys, Inc. (CCCI). The district court granted Mr. Elliott partial
summary judgment, ordered CCCI’s liquor license be transferred to Mr. Elliott and,
“[u]pon the approval of said liquor license transfer to Elliott by the Natrona County
Commissioners . . . ,” the lawsuit would be dismissed.
[¶4] On July 28, 2021, Mr. Elliott applied to the Board for the transfer of CCCI’s liquor
license. Publication of the notice of the application was completed on August 15, 2021.
The application was set for hearing at the August 17, 2021 public meeting. At that public
meeting, the Board heard comments from Mr. Elliott’s attorney; the attorney for CCCI’s
mortgagor, Linlog, LLC (Linlog); the Natrona County Attorney; and Mr. Pilcher, sole
stockholder of CCCI. Mr. Elliott’s attorney spoke in favor of the transfer. The Natrona
County Attorney spoke to his understanding that the license would not be actively used,
but “parked” at an address in Natrona County until it was sold. Linlog’s attorney spoke
against the transfer, expressing concern that the transfer would prevent CCCI from meeting
its mortgage payments to Linlog. Mr. Pilcher spoke against the transfer stating that thirty-
five employees would lose their jobs if the license were transferred. Of the remaining
comments, the majority were directed to the legal effect of the district court’s partial
summary judgment order (requiring CCCI’s liquor license to be transferred to Mr. Elliott
upon approval of the transfer by the Board). The Board was uncertain about the legal
1
ramifications of the district court’s order and tabled the matter until the meeting scheduled
for September 20, 2021.
[¶5] Between these meetings, the Board received additional information about the
potential transfer from the attorneys who spoke at the hearing. Just prior to the September
20, 2021 meeting, the Board went into executive session joined by the Natrona County
Attorney. At the conclusion of the executive session and in the open meeting, Mr. Elliott’s
transfer application was brought forward for consideration. The Chairman announced,
“Most of the information that we received [between the last meeting and this one] has
[only] been adding more detail to what has already been presented, so at this time we are
not going to open the floor for any additional public comments.” By a motion moved and
seconded, the Board denied the transfer because “the transfer will adversely affect the
welfare of the people residing in the vicinity of the proposed license address.”
[¶6] Mr. Elliott appealed the decision to the district court. He argued that the Board was
required to hold a contested case hearing under WAPA. He claimed the Board’s decision
did not comply with WAPA because there was no written decision based on substantial
evidence. He also maintained the Board had violated the Wyoming Public Meetings Act
when it determined the outcome of the application in executive session. The district court
found that it lacked jurisdiction to review the proceedings. Citing to our decision in
Albertson’s, Inc. v. City of Sheridan, 2001 WY 98, 33 P.3d 161 (Wyo. 2001) (where we
held a request for transfer of a license is equivalent to an application for a new license),
and Wyo. Stat. Ann. § 12-4-104(e) (which limits judicial review to cases involving the
renewal of a liquor license and specifically denies review of new license applications), the
district court dismissed the appeal. Albertson’s, ¶ 6, 33 P.3d at 164; Wyo. Stat. Ann. § 12-
4-104(e)–(f). Mr. Elliott timely filed an appeal.
STANDARD OF REVIEW
[¶7] Mr. Elliott claims the district court erred in failing to review his claim under WAPA
and his claim for violations of the Wyoming Public Meetings Act. Mr. Elliott asserts that
because these are procedural and not substantive claims, Wyo. Stat. Ann. § 12-4-104(e)
does not apply. Questions of jurisdiction, whether an individual was afforded due process,
and statutory interpretation are all questions of law that we review de novo. In interest of
DT, 2017 WY 36, ¶ 23, 391 P.3d 1136, 1143 (Wyo. 2017); Brown v. State, 2017 WY 45,
¶ 8, 393 P.3d 1265, 1270 (Wyo. 2017); In re HLL, 2016 WY 43, ¶ 16, 372 P.3d 185, 189
(Wyo. 2016) (jurisdiction); In re CDR, 2015 WY 79, ¶ 19, 351 P.3d 264, 268–69 (Wyo.
2015) (statutory interpretation); KC v. State, 2015 WY 73, ¶ 16, 351 P.3d 236, 241 (Wyo.
2015) (due process).
2
DISCUSSION
Did the district court have subject matter jurisdiction to hear a direct appeal from the
Board’s denial of a liquor license transfer?
[¶8] Mr. Elliott argues that due process requires county boards, as agencies subject to
WAPA, to hold contested case “trial type” hearings when considering the transfer of a
liquor license. 1 He claims that this procedural issue is separate from the jurisdictional
restrictions precluding judicial review of liquor license transfers found in Wyo. Stat. Ann
§ 12-4-104(e). He also argues the decision to deny the license transfer was made during
the executive session in violation of the open meetings provision found in Wyo. Stat. Ann.
§ 16-4-403(a). The Board contends, under a plain reading of Wyo. Stat. Ann. § 12-4-
104(e), this Court does not have jurisdiction.
[¶9] “The phrase ‘subject matter jurisdiction’ refers to ‘the power to hear and determine
cases of the general class to which the proceedings in question belong.’” Mut. of Omaha
Ins. Co. v. Blury-Losolla, 952 P.2d 1117, 1119–20 (Wyo. 1998) (quoting Lacey v. Lacey,
925 P.2d 237, 238 (Wyo. 1996) (quoting Fuller v. State, 568 P.2d 900, 903 (Wyo. 1977))).
The notion that a court must have subject matter jurisdiction
before it can act upon a matter is fundamental to the operation
of our judicial system. It is well established that a judgment
may properly be rendered against a party only if the court has
authority to adjudicate the type of controversy involved in the
action. As we have explained, [s]ubject matter jurisdiction is
essential to the exercise of judicial power. If a court does not
have subject matter jurisdiction, it lacks any authority to
proceed, and any decision, judgment, or other order is, as a
matter of law, utterly void and of no effect for any purpose.
Matter of U.S. Currency Totaling $14,245.00, 2022 WY 15, ¶ 8, 503 P.3d 51, 54 (Wyo.
2022) (internal citations and quotation marks omitted) (quoting Best v. Best, 2015 WY 133,
¶ 10, 357 P.3d 1149, 1152 (Wyo. 2015)); see also MH v. First Jud. Dist. Ct. of Laramie
Cnty., 2020 WY 72, ¶ 5, 465 P.3d 405, 407 (Wyo. 2020) (“If a court lacks subject matter
jurisdiction, ‘action taken by that court, other than dismissing the case, is considered to be
null and void.’” (quoting Devon Energy Prod. Co., LP v. Grayson Mill Operating, LLC,
2020 WY 28, ¶ 11, 458 P.3d 1201, 1205 (Wyo. 2020))). “If the district court lacked subject
matter jurisdiction, this Court has jurisdiction on appeal, not on the merits, but only as to
1
Mr. Elliott does not argue, nor could he, that he had any property right in the transfer of the liquor license.
See Albertson’s where we addressed the question of whether a liquor license was property. We held that
“[A] liquor license is not property as between the licensing authority and the license holder, but it has
sufficient attributes of property to be considered property as between private individuals.” Albertson’s,
¶ 29, 33 P.3d at 172 (quoting Dodds v. Shamer, 663 A.2d 1318, 1326 (Md. 1995)).
3
the jurisdictional issue. The absence of subject matter jurisdiction makes dismissal, rather
than affirmance, the proper course.” Hall v. Park Cnty., 2010 WY 124, ¶ 3, 238 P.3d 580,
581 (Wyo. 2010) (citations omitted).
[¶10] “The right to judicial review of an administrative decision is entirely statutory.”
Albertson’s, ¶ 8, 33 P.3d at 164 (quoting Indus. Siting Council of State of Wyo. v. Chicago
& N. W. Transp. Co., 660 P.2d 776, 778 (Wyo. 1983)). Title 12, ch. 4, of the Wyoming
statutes addresses local liquor licensing procedures applicable to both cities and counties.
Wyo. Stat. Ann. § 12-4-101. At issue here is Wyo. Stat. Ann § 12-4-104(e) which imposes
limitations on judicial review as follows: “An applicant for a renewal license or permit
may appeal to the district court from an adverse decision by the licensing authority. No
applicant for a new license shall have a right of appeal from the decision of the licensing
authority denying an application.” Wyo. Stat. Ann. § 12-4-104(e) (LexisNexis 2021)
(emphasis added).
[¶11] We specifically addressed whether Wyoming statutes provide an unsuccessful
applicant the right to appeal from a city’s denial of a transfer request in Albertson’s. We
recognized the “presumption of reviewability” where we presume the right to review is not
precluded unless legislative intent to preclude judicial review is “clear and convincing.”
Albertson’s, ¶ 8, 33 P.3d at 164 (quoting Pisano v. Shillinger, 835 P.2d 1136, 1139 (Wyo.
1992)). We applied the test from Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345, 104
S.Ct. 2450, 2453, 81 L.Ed.2d 270 (1984), 2 and after a thorough review of the applicable
statutes, we held that the application for transfer of a liquor license is equivalent to an
application for a new license and “appeals by new applicants are categorically denied.”
Albertson’s, ¶¶ 9–11, 33 P.3d at 165–67; see also Vance v. City of Laramie, 2016 WY 106,
¶ 40, 382 P.3d 1104, 1114 (Wyo. 2016) (“the presumption in favor of review cannot be
used to create a right that was not provided by statute and would be inconsistent with the
civil service statutory scheme”).
[¶12] Mr. Elliott claims our holding in Albertson’s does not apply here because the
transfer in Albertson’s was denied by the city, an agency not subject to WAPA’s
provisions. See Wyo. Stat. Ann. § 16-3-101(b)(i). 3 He maintains we have held WAPA
applies to the transfer of liquor licenses by a county and cites Glenn v. Bd. of Cnty.
Comm’rs, Sheridan Cnty., 440 P.2d 1, 3 (Wyo. 1968) (application for liquor license
2
“Whether and to what extent a particular statute precludes judicial review is determined not only from its
express language, but also from the structure of the statutory scheme, its objectives, its legislative history,
and the nature of the administrative action involved.” Block, 467 U.S. at 345, 104 S.Ct. at 2453–54. See
also Bowen v. Michigan Acad. of Fam. Physicians, 476 U.S. 667, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986).
3
“Agency” means “any authority, bureau, board, commission, department, division, officer or employee of
. . . a county[.]” Wyo. Stat. Ann. § 16-3-101(b)(i).
4
renewal and transfer). 4 He claims, under WAPA, the Board must hold a contested case
hearing which is reviewed under a “substantial evidence” standard. 5
[¶13] We squarely confronted the application of WAPA to the denial of an application for
a liquor license in Walker v. Bd. of Cnty. Comm’rs, Albany Cnty. There, two parties, the
Walkers and Gustafsons, operated competing businesses in Centennial, an unincorporated
community in Albany County. Walker v. Bd. of Cnty. Comm’rs, Albany Cnty., 644 P.2d
772, 773 (Wyo. 1982). Both applied for single retail liquor license which became available
by virtue of increased population in Albany County. After a public hearing on the issuance
of the new retail liquor license, the Board awarded the license to the Gustafsons and denied
Walker’s application. Id. Addressing Walker’s argument that WAPA applied to the appeal
from the Board’s denial of his application, we held:
The right to judicial review of administrative actions is entirely
statutory.
Each statute must be carefully examined to discover the
legislature’s intent to restrict judicial review of
administrative action. While it is often said that barring
constitutional impediments the legislature can preclude
judicial review, such intent must be made specifically
manifest, and persuasive reason must exist to believe
such was the legislative purpose. Only upon a showing
of clear and convincing evidence of contrary legislative
intent should the courts restrict access to judicial
review.
Section 9-4-114(a), W.S. 1977, (part of the Wyoming
Administrative Procedure Act) provides:
(a) Subject to the requirement that administrative
remedies be exhausted and in the absence of any
statutory or common-law provision precluding or
limiting judicial review, any person aggrieved or
4
In Glenn, the holder of a retail liquor license issued by the Board of County Commissioners of Sheridan
County filed an application for a change in location of his business premises and requested that his license
be renewed with the new location. This Court noted with approval that both parties agreed that the
application was subject to the contested case provisions under WAPA. The jurisdictional limitations on
judicial review of the Board’s decision were not at issue. Transfer of the license to a new applicant was not
at issue. This decision offers little guidance here. Glenn, 440 P.2d at 2–3.
5
Mr. Elliott also cites to Naibauer v. Bd. of Platte Cnty. Comm’rs, 895 P.2d 445, 448 (Wyo. 1995).
Naibauer is inapt. Naibauer addressed the renewal of a liquor license. Wyo. Stat. Ann. § 12-4-104(e)
allows for the appeal of license renewals.
5
adversely affected in fact by a final decision of an
agency in a contested case, or by other agency action or
inaction, or any person affected in fact by a rule adopted
by an agency, is entitled to judicial review * * *.
(Emphasis added.)
Inasmuch as the right to judicial review of the denial of their
application for a liquor license was specifically and positively
forbidden by the statute, Walkers cannot here contest such
denial.
Id. at 774 (internal citations omitted). The plain language of Wyo. Stat. Ann. § 16-3-
114(a), allows judicial review absent a statute precluding judicial review. Wyo. Stat. Ann.
§ 12-4-104(e) precludes judicial review of denial of a liquor license transfer. Mr. Elliott
has no right of appeal under WAPA.
[¶14] Mr. Elliott argues that because he has limited his claims to a violation of the
Wyoming Public Meetings Act and the Board’s failure to follow WAPA, his case is
distinguishable from Albertson’s. He asserts that he is not appealing the denial of the
transfer, but the procedures used by the Board in reaching its decision. This is a difference
without distinction. Wyo. Stat. Ann § 12-4-104(e) unequivocally states, “No applicant for
a new license shall have a right of appeal from the decision of the licensing authority
denying an application.” Mr. Elliott has presented no case law from Wyoming or
elsewhere supporting the proposition that a statute precluding appellate review can be
parsed between procedural and substantive issues. Our independent research has proved
equally fruitless. Mr. Elliott appeals from the Board’s decision and seeks to overturn that
decision. Mr. Elliott’s appeal challenging the Board’s decision on procedural grounds is
foreclosed by statute. The district court correctly determined it was without jurisdiction.
CONCLUSION
[¶15] “Subject matter jurisdiction is not a subject of judicial discretion.” It “either exists
or it does not.” Devon Energy, ¶ 11, 458 P.3d at 1205 (quoting Weller v. Weller, 960 P.2d
493, 495 (Wyo. 1998)). The district court did not have subject matter jurisdiction. Appeal
dismissed.
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Monty Elliott v. Natrona County Board of Commissioners
Combined Opinion