State Ex Rel. Bayou Liquors, Inc. v. City of Casper

THOMAS, Justice,

dissenting,

with whom TAYLOR, J., joins.

I dissent. The majority opinion invokes a clearly erroneous application of the law with respect to declaratory judgment actions. The district judge correctly ruled that the plaintiffs in the action, the appellants here, were not entitled to seek a declaratory judgment because of lack of standing. He is entitled to have his ruling affirmed.

I recognize that we have held our declaratory judgment statutes are to be liberally construed to give effect to the remedial pur*1052poses and to provide relief from uncertainty. In re Gen. Adjudication of All Rights to Use Water in the Big Horn River Sys., 753 P.2d 76 (1988), cert. granted in part, Wyoming v. United States, 488 U.S. 1040, 109 S.Ct. 863, 102 L.Ed.2d 987, aff'd, 492 U.S. 406, 109 S.Ct. 2994, 106 L.Ed.2d 342, reh’g denied, 492 U.S. 938, 110 S.Ct. 28, 106 L.Ed.2d 639, cert. denied, City of Riverton, Wyoming v. United States, 492 U.S. 926, 109 S.Ct. 3265, 106 L.Ed.2d 610 (1989) and cert. denied, Shoshone Tribe v. Wyoming, 492 U.S. 926, 109 S.Ct. 3265, 106 L.Ed.2d 610 (1989). Even so, we also have held, quoting from our statute, that “a declaratory judgment is open only to those persons ‘ * * * interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by the Wyoming constitution or by a statute, municipal ordinance, contract or franchise * ⅜ *>» an(j ⅛6 judiciary will not invoke its remedial powers unless presented with a justiciable controversy.” Reiman Corp. v. City of Cheyenne, 838 P.2d 1182, 1186 (Wyo.1992), appeal after remand, 869 P.2d 125 (1994). In this case, I am satisfied these plaintiffs had no interest beyond that of the general interest of the public.

A leading treatise on declaratory judgments couches the rule in this language:

The general rule is that a party having only such interest as the public generally has cannot maintain an action, and this rule is applicable to declaratory judgment actions.

1 WALTER H. ANDERSON, ACTIONS FOR DECLARATORY Judgments, § 162, at 313 (2d ed. 1951) (footnotes omitted).

The decided cases support this view and, in their rationale, they demonstrate the soundness of the rule. E.g., Kolwicz v. City of Boulder, 36 Colo.App. 142, 538 P.2d 482 (1975); Greer v. Lewiston Golf & Country Club, Inc., 81 Idaho 393, 342 P.2d 719 (1959); Asendorf v. Common School Dist. No. 102 of Sedgwick County, 175 Kan. 601, 266 P.2d 309 (1954); Schroder v. City of Lincoln, 155 Neb. 599, 52 N.W.2d 808 (1952); Eacret v. Holmes, 215 Or. 121, 333 P.2d 741 (1958); Wright v. Nashville Gas & Heating Co., 183 Tenn. 594, 194 S.W.2d 459 (1946); Jenkins v. Swan, 675 P.2d 1145 (Utah 1983); Baird v. State, 574 P.2d 713 (Utah 1978); Lyon v. Bateman, 119 Utah 434, 228 P.2d 818 (1951). See Ahern v. Baker, 148 Colo. 408, 366 P.2d 366 (1961). In Ahern, the Supreme Court of Colorado considered a situation in which individuals or corporate entities holding package liquor licenses sought to require the Secretary of State to prohibit sales by delivery to the premises of the customer. The court ruled the plaintiffs lacked standing.

In a similar vein, other courts have required some individual interest on the part of a plaintiff in a declaratory judgment action. E.g., Riley v. County of Cochise, 10 Ariz.App. 55, 455 P.2d 1005 (1969); Torres v. City of Yorba Linda, 13 Cal.App.4th 1035, 17 Cal.Rptr.2d 400 (1993); Healthamerica Corp. of Kentucky v. Humana Health Plan, Inc., 697 S.W.2d 946 (Ky.1985); Waite v. Holmes, 133 Mont. 512, 327 P.2d 399 (1958); King County v. Washington State Bd. of Tax Appeals, 28 Wash.App. 230, 622 P.2d 898 (1981).

We are setting out on a merry chase if we acknowledge that those who have the same interest as the general public can bring declaratory judgment actions to challenge the decisions of governmental officials or bodies with which they disagree. The chase will be like the current television commercials in which the rabbit just keeps going and going and going and going. We would never overtake that litigation.

In its reliance upon Walker v. Bd. of County Comm’rs of Albany County, 644 P.2d 772 (Wyo.1982), the majority engrafts upon the declaratory judgment statutes, Wyo.Stat. §§ 1-37-101 to -115 (1988), a rule peculiar to the liquor licensing statutes. I can perceive no justification for adopting a statutory statement of standing identifying those persons who can contest liquor license applications as a rule of standing for our declaratory judgment statutes. The mere fact that this case involves licensing of a liquor establishment does not furnish that justification. For examples of the correct rule, I refer the reader to Florida State Racing Comm’n v. Broward County Kennel Club, 77 So.2d 783 (Fla.1955), which relies upon a liquor licensing case, Turner v. City of Miami, 160 Fla. 317, 34 So.2d 551 (1948). Turner was an injunction *1053action, but the Supreme Court of Florida ruled its standing concept in those cases was analogous to the appropriate one for a declaratory judgment action. In Bd. of Registration Comm’rs v. Campbell, 251 Ky. 597, 65 S.W.2d 713 (1933), the Supreme Court of Kentucky held, in an action by a candidate against the Board of Registration Commissioners of the City of Louisville, that the Democratic and Republican County Executive Committees were not necessary or proper parties. The thrust of the ruling is that those bodies had no interest of their own in the subject matter of the action.

In Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), the Supreme Court of the United States ruled that legislators must claim a direct injury to achieve standing. Other federal and state courts have ruled consistently in eases involving declaratory judgment actions by legislators. Risser v. Thompson, 930 F.2d 549 (7th Cir.1991), cert. denied, 502 U.S. 860, 112 S.Ct. 180, 116 L.Ed.2d 142 (1991); Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir.1974); Colorado Gen. Assembly v. Lamm, 700 P.2d 508 (Colo.1985); Zemprelli v. Thornburgh, 73 Pa. Cmwlth. 101, 457 A.2d 1326 (1983). What is sauce for legislators ought to be sauce for liquor dealers.

I am satisfied that, in order to seek relief against a governmental officer or body under our declaratory judgment statutes, it is essential a plaintiff assert some interest of his own, separate and apart from the interest of the public in order to demonstrate standing to proceed. In this ease, the plaintiffs claimed none, nor did they have any, other than the standing invented by this court. Their remedy must be sought in the legislature or at the polls. The judgment of the district judge should be affirmed.