dissenting.
I must dissent from the conclusions of the majority of the court in this instance. My only concern is with that aspect of the majority opinion which concludes that the summary judgment must be reversed because the adoption of a new "merit" system contravenes the applicable state statutes. The conclusion that it does may well be correct, but in reaching that conclusion I am satisfied that the court has rendered an advisory opinion contrary to well established precedent in this court.
I would affirm the action of the district court in refusing to consider this issue on the ground that the appellants sought (and are now receiving) purely an advisory opinion. I would hold that they do not have standing to pursue this aspect of the case.
*440This court in declaratory judgment cases has uniformly rejected the furnishing of advisory opinions. Washakie County School District Number One v. Herschler, Wyo., 606 P.2d 310 (1980); Police Protective Association of Casper v. City of Casper, Wyo., 575 P.2d 1146, 1148 (1978); Mountain West Farm Bureau Mutual Insurance Company, Inc. v. Hallmark Insurance Company, Wyo., 561 P.2d 706, 709-710 (1977); Cranston v. Thomson, Wyo., 530 P.2d 726, 728-729 (1975); Retail Clerks Local 187 AFL-CIO v. University of Wyoming, Wyo., 531 P.2d 884, 887 (1975); and Brimmer v. Thomson, Wyo., 521 P.2d 574 (1974). In order to have standing to pursue such a claim, it is necessary to show that past conduct or threatened future conduct invades or will invade a private substantive legally protected right or interest. White v. Board of Land Commissioners, Wyo., 595 P.2d 76 (1979); 1 Anderson, Declaratory Judgments, § 32, p. 104 Company 1951).
There are a number of cases which, while involving different facts, strongly suggest that "promotional opportunities" are not substantive legally protected rights. These cases support the proposition that an expectancy only is not a legally protected right or interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Davis v. Oregon State University, 591 F.2d 493 (9th Cir. 1978); Stebbins v. Weaver, 537 F.2d 939 (7th Cir. 1976), cert. denied 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977); Blair v. Board of Regents of State University and Community College System of Tennessee, 496 F.2d 322 (6th Cir. 1974); Johnson v. University of Pittsburgh, 435 F.Supp. 1328 (W.D.Pa. 1977); and Keddie v. Pennsylvania State University, 412 F.Supp. 1264 (M.D.Pa. 1976).
In Gaballah v. Johnson, 629 F.2d 1191 (7th Cir. 1980), the court had before it for review a case in which the plaintiff contended that he had been denied promotion opportunities which he asserted he was entitled to in accordance with the merit promotion program of Downey Veterans Administration Hospital. The court said at 629 F.2d 1202:
"Regarding the five non-promotions, the evidence in the record shows that Gabal-lah had no protected right to be promoted under the Downey Merit Promotion Program. No [sic] does Gaballah have a property interest in any particular form of consideration for promotion. For if a non-tenured college teacher could assert no property interest in the decision whether to rehire him for a position he already held, Bd. of Regents v. Roth, 408 U.S. 564, 577-78, 92 S.Ct. 2701, 2709, 2710, 33 L.Ed.2d 548 (1972), Gaballah has no such interest in the filling of positions he has never held. * * *"
Of similar tenor is Sherman v. Behner, 58 F.R.D. 70 (C.D.Cal. 1973), in which the court held that the denial by the Personnel Department of the City of Pasadena of a certification to Sherman to take the examination for Principal Engineer (Electrical) did not deprive him of any rights or privileges cognizable under 42 U.S.C. § 1983.
While I concede that it is permissible for an organization to appear as a real party in interest ("Laramie Citizens for Good Government" v. City of Laramie, Wyo., 617 P.2d 474 (1980)), the association cannot assert any greater rights than the individuals whom it represents. The individuals in this instance all claim to be currently employed by the City of Rock Springs as police officers. Consequently their right to employment as police officers is not in issue. I do not understand that they complain of deprivation of promotion prior to the bringing of this action but are premising their claim entirely upon future rights. Since it is my opinion that these appellants had no standing as plaintiffs to assert a future right to promotion as a basis for attacking any "merit" system, the district judge correctly refused to consider the issue. I would affirm the summary judgment in all respects.