Nelson v. Geringer

F I L E D
United States Court of Appeals
Tenth Circuit

JUL 3 2002
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

BARBARA JENENNE NELSON,

Plaintiff-Appellee,

v.

JIM GERINGER, individually and in his
capacity as Governor of the State of Wyoming; No. 00-8039
ED BOENISCH, in his official capacity as
Adjutant General of the Wyoming National
Guard; THE STATE OF WYOMING,

Defendants-Appellants.

_________________________

NATIONAL GUARD ASSOCIATION OF THE
UNITED STATES,

Amicus Curiae.

HOWARD ARTHUR DILLON, JR., also known
as Art Dillon,

Plaintiff-Appellee,

v. No. 00-8093

JIM GERINGER, in his official capacity as
Governor and Commander in Chief of the
Wyoming National Guard; STATE OF
WYOMING,
 Defendants-Appellants.

________________________

NATIONAL GUARD ASSOCIATION OF THE
UNITED STATES,

Amicus Curiae.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 99-CV-132-D, 00-CV-162-D)

Richard Rideout, Special Assistant Attorney General (Gay Woodhouse, Attorney
General; John W. Renneisen, Deputy Attorney General, with him on the briefs in
both cases; and Francisco L. Romero, Senior Assistant Attorney General, with
him on the briefs in Nelson only), State of Wyoming, Cheyenne, Wyoming, for
Defendants-Appellants.

Patrick E. Hacker (Gregory P. Hacker with him on the briefs) of Patrick E.
Hacker, P.C., Cheyenne, Wyoming, for Plaintiffs-Appellees.

James J. Hughes, Jr. of Bricker & Eckler, LLP, Columbus, Ohio; and Bruce S.
Asay of Associated Legal Group, LLC, Cheyenne, Wyoming, filed a brief in each
case for Amicus Curiae.

Before SEYMOUR and BRISCOE, Circuit Judges, and OWEN, * District Judge.

SEYMOUR, Circuit Judge.

*
The Honorable Richard Owen, District Judge, United States District Court
for the Southern District of New York, sitting by designation.

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 This opinion addresses the cases of two plaintiffs, Barbara Jenenne Nelson

and Howard Arthur Dillon, who were dismissed from their positions as Assistant

Adjutant Generals of the Wyoming National Guard. The underlying facts and

claims brought by plaintiffs are substantially the same for both cases, so we

consolidate them for purposes of appeal.

Each plaintiff brought suit in district court under 42 U.S.C. § 1983 after

being removed from the position of Assistant Adjutant General of the Wyoming

National Guard for failing to meet the state’s newly enacted residency

requirement for that position. The district court held that the residency

requirement violated the Privileges and Immunities Clause, granted summary

judgment for plaintiffs, and ordered them reinstated. The state of Wyoming

appeals and we affirm.

I

There are two Assistant Adjutant General (AAG) positions in the Wyoming

National Guard, one for the Wyoming Air National Guard and one for the

Wyoming Army National Guard. 1 The AAGs are commanded by the Adjutant

In December 1995, pursuant to federal statute, see National Guard
1

Regulations (NGR) 600-100 (11-3) (1994), the two AAGs were made the
Commanders of their respective state Air and Army national guard units.

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General, the highest ranking military officer in the state Guard, who in turn

reports to the state governor. See W Y . S TAT . A NN . § 19-7-103 (LexisNexis 2001).

Ms. Nelson and Mr. Dillon are residents of Colorado. Ms. Nelson has been

a member of the Wyoming Air National Guard since April 15, 1989. In early

1995, Ms. Nelson applied to be AAG of the Wyoming Air National Guard. A

military selection board for the Wyoming National Guard chose her as the best-

qualified applicant, and she assumed the office on May 1, 1995. At the time

relevant to this suit, fifty-one percent of the members of the Wyoming Air

National Guard were nonresidents of the state, and fifty percent of its officers

were nonresidents. Aplt. App. (Nelson) at 41.

In the spring of 1997, the AAG position for Commander of the Wyoming

Army National Guard became vacant and Mr. Dillon was selected for the position.

He assumed the office on March 12, 1998. Mr. Dillon has served in the Wyoming

National Guard since 1979, having been recruited from the Colorado National

Guard to join. Aplt. App. (Dillon) at 47. Approximately twenty percent of

Wyoming Army National Guard members are nonresidents. Aplt. App. (Nelson)

at 41. In accordance with state and federal law, Ms. Nelson and Mr. Dillon were

both promoted to the rank of Brigadier General. See National Guard Regulations

(NGR) 600-100 (11-3); W Y . S TAT . A NN . § 19-7-104.

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 In spring 1998, the Wyoming legislature amended state law to require that,

like the Adjutant General, the two AAGs must be state residents. 2 W Y . S TAT .

A NN . § 19-7-104. The Act became effective on July 1, 1998.

In May 1998, Wyoming State Representative Mike Massey wrote to

Wyoming Attorney General William U. Hill and requested an official opinion on

whether the Wyoming Constitution imposed a residency requirement for AAGs in

the Wyoming National Guard, stating he realized the statute “cannot be applied

retroactively.” 3 Aplt. App. (Nelson) at 85. The Attorney General rendered an

opinion in response (Opinion No. 98-007), concluding that Article 6, section 15

of the Wyoming Constitution prevented non-residents from holding AAG

positions. Id. at 80.

2
The relevant statute provides that each assistant adjutant general “shall
possess the qualifications set forth in W.S. 19-7-103(a)(i) through (iv).” W Y .
S TAT . A NN . § 19-7-104. The referenced provision sets out the qualifications for
Adjutant General, including the requirement that the Adjutant General “[b]e a
resident of the state of Wyoming.” Id. § 19-7-103(a)(iv). The other
qualifications are at least ten years service as a field, staff or line officer in the
United States army or air force, or national guard; at least four years service in
the Wyoming National Guard immediately prior to the appointment; and the
attainment of the federally recognized rank of lieutenant colonel. Id. §
19-7-103(a)(i) - (iii). There is no dispute that Ms. Nelson and Mr. Dillon met
these other requirements.
3
At the time relevant to this appeal, the Wyoming Constitution provided,
“No person except a qualified elector shall be elected or appointed to any civil or
military office in the state.” W Y . C ONST . art. 6, § 15 (1998). This provision was
amended in 1999 to provide that the only military offices to which the residency
(qualified elector) requirement applies are Adjutant General and Assistant
Adjutant General. W Y . C ONST . art. 6, § 15.

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 Following the issuance of the opinion, Ms. Nelson and Mr. Dillon were

both removed from their AAG positions. 4 Ms. Nelson was removed effective

September 25, 1998. Mr. Dillon was removed effective September 30, 1998.

During their respective tenures as AAGs, Ms. Nelson and Mr. Dillon received

acceptable performance reviews; their non-residency was not a performance issue.

Since the removal of Ms. Nelson and Mr. Dillon, both AAG positions have been

filled by state residents.

After she failed to obtain reconsideration of the Attorney General opinion

from both the Attorney General and the Governor, Ms. Nelson brought suit under

section 1983 against the state of Wyoming, the Governor, and Adjutant General

Boenisch in his official capacity (collectively, the state). She claimed her

removal violated the Privileges and Immunities Clause, the Commerce Clause,

and her constitutional rights to travel, equal protection, and due process. She

sought injunctive, declaratory, and monetary relief. Mr. Dillon brought the same

claims and sought the same relief in a suit challenging his removal.

4
The district court indicated that Ms. Nelson and Mr. Dillon were removed
pursuant to the new statutory residency requirement, although the court declared
any similar provision of the Wyoming Constitution void as well. Our review of
the record indicates that Ms. Nelson and Mr. Dillon were actually removed
pursuant to the Wyoming Constitution (and Attorney General Opinion No. 98-007
interpreting the state constitution). See Aplt. App. at 80. This does not affect the
posture of this appeal as Ms. Nelson and Mr. Dillon challenged both the statutory
and the state constitutional provisions below under the Declaratory Judgment Act,
28 U.S.C. § 2201. We refer to both provisions as the residency requirement.

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 The district court granted summary judgment to Ms. Nelson and Mr. Dillon

on Privileges and Immunities grounds and ordered their reinstatement without

reaching the other constitutional claims presented. 5 We affirm on Privileges and

Immunities grounds and likewise do not address the other claims.

II

A

We review the grant of summary judgment de novo, applying the standard

used by the district court. Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.

1995). Summary judgment is appropriate “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue of material fact and that the moving party is

entitled to a judgment as a matter of law.” F ED . R. C IV . P. 56(c). In applying this

standard, we view the evidence and inferences therefrom in the light most

favorable to the non-moving party. If there is no genuine issue of material fact in

dispute, we determine whether the district court correctly applied the substantive

5
Ms. Nelson initially sued the Governor in his personal and official
capacities. The district court held the Governor was entitled to qualified
immunity and could be sued only in his official capacity. The court therefore
dismissed Ms. Nelson’s claim for monetary damages. Ms. Nelson does not appeal
these issues. Mr. Dillon sued the Governor only in his official capacity.

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law. Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse

Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).

B

Before turning to the Privileges and Immunities Clause, we first discuss the

National Guard’s dual role as a state and a federal entity in order to avoid

significant detours into military structure and regulations at multiple points in our

subsequent analysis. The discussion is based on our review of the record and

relevant federal and state law, and therefore consists of undisputed fact or our

legal conclusions.

The “Militia Clauses” of the United States Constitution provide:

Congress shall have Power . . . To provide for calling forth the Militia to
execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for
governing such Part of them as may be employed in the Service of the
United States, reserving to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia according to the
discipline prescribed by Congress.

U.S. C ONST . art. I, § 8, cl. 15-16. The National Guard consists of the Air

National Guard and the Army National Guard. 32 U.S.C. § 101(3). The National

Guard was created by Congress pursuant to the Militia Clauses. See id. §§

101(4), (6) (National Guard is “that part of the organized militia . . . that . . . has

its officers appointed[] under the sixteenth clause of section 8, article 1, of the

Constitution”); see also id. § 101(3).

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 For convenience, we will discuss only the Air National Guard (ANG), but

the provisions we cite, or substantively identical provisions, also apply to the

Army National Guard. See, e.g., 10 U.S.C. §§ 10105-07 et seq. The ANG has a

dual status: it constitutes both the state national guard units that comprise it, and

the Air National Guard of the United States. 10 U.S.C. §§ 10111-13. In terms of

their state aspects, the ANG units are the “state” units of the nation’s organized

militia. 32 U.S.C. § 101(6). States are responsible for appointing officers and

training national guard members according to Congressional requirements. U.S.

C ONST . art. I, § 8, cl. 16; see also 32 U.S.C. § 501. The National Guard is

available for states to use within their borders during peace time. 32 U.S.C. §

109(b). When the federally recognized ANG units are not in active federal

service, they constitute the Air National Guard units of each of the several States

and the United States territories. 10 U.S.C. § 10113.

Significantly, however, the Air National Guard remains a federal entity

even when it is not in active federal service. The “federally recognized” state

units of the ANG together constitute the Air National Guard of the United States,

32 U.S.C. § 101(7); 10 U.S.C. §§ 10112-13, which is a reserve component of the

Air Force. Id. §§ 10101, 12107 (b)(2). When a person enlists in the Air National

Guard, he must enlist in both a state ANG unit and the ANG of the United States,

10 U.S.C. § 12107, and meet all federal qualifications for the ANG of the United

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States, 32 U.S.C. § 301. The federal government prescribes required training for

national guard members and otherwise substantially regulates the state national

guard units. See 32 U.S.C. § 110; id. § 104(b) (ANR units shall be organized

according to regular Air Force regulation and as the Secretary of Defense

provides). The federal government also provides funding, equipment, and other

support for the National Guard units. Id. § 106. State National Guard units lose

their federal recognition, as well as funding, equipment, and all other privileges,

if they do not meet the requirements mandated by Congress. Id. §§ 105, 108.

The President and Congress have the power to “call up” National Guard

units, or order them into active federal service, at any time they are needed for

national defense or law enforcement purposes. 32 U.S.C. § 102 (Congress); 10

U.S.C. § 12406 (President). When Air National Guard members are called up to

active federal service, they are in the “regular” Air Force, 10 U.S.C. § 10112, and

they are relieved of duty in their state units, 32 U.S.C. § 325(a).

The National Guard constitutes a vital component of the system of

national defense:

In accordance with the traditional military policy of the United States, it is
essential that the strength and organization of the Army National Guard and
the Air National Guard as an integral part of the first line of defenses of the
United States be maintained and assured at all times.

32 U.S.C. § 102. Moreover, the National Guard’s importance to national military

strength has increased significantly since the end of the Cold War and military

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downsizing. 6 Aplt. App. (Nelson) at 158-59. Wyoming Adjutant General

Boenisch testified that the federal government has a policy of “total force” that

aims to ensure, among other things, that the National Guard will blend seamlessly

into national defense operations. Id.

Commissioned officers, including Assistant Adjutant Generals, are thus

under dual state and federal control. Although all officers are appointed by the

respective state in charge of the particular unit, U.S. C ONST . art. 1, § 8, cl. 16; see

also 32 U.S.C. 101(6), these officers must be federally recognized, see 32 U.S.C.

§ 305. To receive federal recognition, they must possess the qualifications

required by the federal government including the specific qualifications

established for the particular position (grade, rank, etc.) to which they are being

appointed in their state guard unit. Id. § 307(a)(2); see also 10 U.S.C. §

12201(a); NGR 600-100 (4-1) (providing that officer appointments are a function

6
Wyoming Adjutant General Boenisch testified that the military is
composed of 50 to 100 percent Guard and Reserve members, depending on the
weapons system or mission involved. Aplee. App. (Nelson) at 210. In 1998, the
Wyoming National Guard’s federal missions included two months of firefighting
in Indonesia, providing airlift assistance to storm-stricken farmers in Roswell,
New Mexico, deployments to Germany in support of operations Joint Guard and
Joint Endeavor, both related to Bosnia peacekeeping efforts, deployments to
Oman for Operation Southern Watch, and hosting the national training workshop
for firefighting. Aplee. App. (Nelson) at 17-18. The Wyoming National Guard is
the headquarters for the 115th field artillery brigade, which has battalions in three
states, and therefore commands field artillery battalions that are part of Montana
and Utah National Guard units. Aplee. App. (Dillon) at 240.

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of the state concerned but shall be conducted according to, inter alia, national

defense organization and management principles and the needs of the armed

forces). In other words, to be appointed an officer, both the state and federal

government must concur in the appointment; the requirements are prescribed, and

must be verified, by the federal government, but the particular selection from

among qualified applicants is reserved for the state. NGR 600-100 (11-2).

Officers take a dual oath to the state and federal governments upon assuming their

commission. 32 U.S.C. § 304.

Federal regulations expressly discuss the creation of two AAGs to head the

air and army divisions of each state unit, respectively, and further provide that the

state must create this position in order to have an officer of the rank of brigadier

general in its unit. NGR 36-1. Federal statutes and regulations do not set out the

duties of the AAGs except for stating that they shall be commanders of the air and

army divisions, NGR 600-100 (11-3(b)), and act as assistants to the federally-

mandated position of Adjutant General (or Chief of Military Operations) for the

state unit, id. (11-2). While duty details for all members are a command function,

they must meet prescribed regulations and federal management practices, id. (7-

1). In sum, the National Guard is an organization controlled and utilized by both

the state and federal governments and constitutes a vital part of the nation’s

defense system.

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 C

We turn now to whether the state’s residency requirement for Assistant

Adjutant Generals is valid under the Privileges and Immunities Clause. On

appeal, the state agrees that the Privileges and Immunities Clause, and the two-

step analysis applied by the district court, are the correct means of analyzing the

lawfulness of the residency restriction. 7

7
Despite this concession, the state asserts that the residency restriction is
constitutional because it is a “bona fide” residency requirement, by which the
state apparently means to distinguish this continuing residency requirement from
durational residency requirements that have been invalidated on right-to-travel
and equal protection grounds. See Dunn v. Blumstein, 405 U.S. 330 (1972)
(invalidating durational residency requirement for voting on right-to-travel and
equal protection grounds); Shapiro v. Thompson, 394 U.S. 618 (1968)
(invalidating durational residency requirement for receiving public assistance on
right-to-travel grounds); cf. Martinez v. Bynum, 461 U.S. 321 (1983) (upholding
continuing residency requirement for attending public schools). Where
continuing residency requirements also impede an activity protected by the
Privileges and Immunities Clause, however, they may still be void as
unconstitutional under that Clause. See, e.g., Supreme Court v. Friedman, 487
U.S. 59 (1988) (continuing residency requirement to “waive in” to state bar
violates Privileges and Immunities Clause); Supreme Court v. Piper, 470 U.S. 274
(1985) (continuing residency requirement for admission to state bar violates
Privileges and Immunities Clause). Thus, the state’s bare assertion that this
residency requirement is “bona fide” does not determine whether the requirement
is constitutional under the Clause that the state has conceded is at issue.
In addition, at oral argument, the state asserted that the Militia Clause of
the United States Constitution reserves to states the power to appoint “Militia”
officers and that this reservation includes the power to restrict AAG officers in
the Wyoming National Guard to state residents. See U.S. C ONST . art. 1, § 8, cl.
15-16. The state did not make this argument in its appeal brief and does not
provide any record cites showing it was presented to the district court. We
therefore decline to address it. See Lyons v. Jefferson Bank & Trust, 994 F.2d
(continued...)

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 The Privileges and Immunities Clause provides: “The Citizens of each

State shall be entitled to all Privileges and Immunities of Citizens in the Several

States.” U.S. C ONST . art. IV, § 2. “The provision was designed to ‘place the

citizens of each State upon the same footing with citizens of other States, so far

as the advantages resulting from citizenship in those States are concerned.’”

Supreme Court v. Friedman, 487 U.S. 59, 64 (1988) (quoting Paul v. Virginia, 75

U.S. (8 Wall.) 168, 180 (1868)). For the purposes of the Clause, the terms

“citizenship” and “residency” are “essentially interchangeable.” Id. (citing United

Bldg. & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208, 216 (1984)).

In Friedman, the Supreme Court applied a two-prong test to determine

whether a state restriction on nonresidents violates the Privileges and Immunities

Clause. Id. at 64-54; see also Supreme Court v. Piper, 470 U.S. 274 (1985);

Baldwin v. Fish & Game Comm’n, 436 U.S. 371 (1978). The Clause merely

“‘establishes a norm of comity without specifying the particular subjects as to

which citizens of one State coming within the jurisdiction of another are

guaranteed equal treatment.’” Friedman, 487 U.S. at 64 (quoting Austin v. New

Hampshire, 420 U.S. 656, 660 (1975)). Accordingly, the first prong asks whether

the activity the state restricts is

7
(...continued)
716, 721 (10th Cir. 1993) (court generally will not consider arguments raised for
first time on appeal).

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 sufficiently basic to the livelihood of the Nation . . . as to fall within the
purview of the Privileges and Immunities Clause. For it is only with
respect to those ‘privileges’ and ‘immunities’ bearing on the vitality of the
Nation as a single entity that a State must accord residents and nonresidents
equal treatment.

Id. at 64-65 (quotations and citations omitted).

If the activity in question meets the above test, a second consideration

under the first prong is whether the restriction falls within an exception to the

Clause for residency requirements that are related to the state’s ability to function

as a sovereign. See Piper, 470 U.S. at 282 & n.13. The activities that fall within

this exception include voting for and holding elective state office, activities that

this involve, respectively, the state’s ability to exist as a separate political

community and the state’s ability to function as a sovereign body. Id. The

provision of state services or resources is also excepted. Baldwin, 436 U.S. at

383. These excepted activities are not privileges or immunities within the

meaning of the Privileges and Immunities Clause. Piper, 470 U.S. at 282 n.13.

If we determine under the first prong that the challenged restriction

deprives a nonresident of a protected privilege or immunity, under the second

prong the restriction is invalid unless it is “closely related to the advancement of

a substantial state interest.” Friedman, 487 U.S. at 65.

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 D

We are persuaded the residency restriction here violates the Privileges and

Immunities Clause. Applying the first prong, we ask whether the activity the state

restricts is a privilege or immunity that bears on the vitality of the nation as a

single entity. Id. at 64. The activity in question is the ability to serve in the

Wyoming National Guard. This activity entails membership in both a state

national guard unit and the National Guard of the United States. See 10 U.S.C. §§

10105-07, 10111-13. As part-time military service, it provides the only

opportunity United States citizens have to volunteer to participate in defending

their country without having to commit their career and lifestyle exclusively to

military service. As such, we agree with the district court that serving in a state

unit of the National Guard “bear[s] on the vitality of the Nation as a single

entity.” Aplt. App. (Nelson) at 53-54. Given the importance of the National

Guard to overall national military power, such service is also “basic to the

livelihood of the Nation.” Friedman, 487 U.S. at 64. The Supreme Court has

stated that “no provision of the Constitution has tended so strongly to constitute

the citizens of the United States one people as [the Privileges and Immunities

Clause].” Paul v. Virginia, 75 U.S. (8 Wall) at 180. Similarly, we can imagine

few activities comparable to participating in national military service that tend to

constitute United States citizens as “one people” and to promote a sense and a

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mission of national unity. We therefore hold that participating in the Wyoming

National Guard, including as an AAG, is a privilege under the Privileges and

Immunities Clause. 8

We next consider whether, as the state asserts, the AAG position falls under

the exception to the Privileges and Immunities Clause for matters that relate to

the state’s ability to function as a sovereign body. Piper, 470 U.S. at 282. This

exception includes residency requirements that are necessary for the state to

operate as a “separate political community,” such as for voting and holding

elective state office, id. at 282 n.13 and, relatedy, residency requirements for

activities or positions which are entrusted with “matters of state policy,” id. at

282 (quoting In re Griffiths, 413 U.S. 717, 724), or are “close to the core of the

political process,” id. at 282 n.12. 9 The state contends, as it must, that the AAG

8
With regard to whether serving as AAG in the National Guard is a
protected “privilege,” the state argued only that the activity was not protected as a
“common calling,” because “common calling” does not extend to public
employment. The district court did not decide the issue. We similarly find it
unnecessary to resolve whether the AAG position involves a “common calling,”
or the pursuit of employment that is therefore a “privilege” under the Privileges
and Immunities Clause, see United Bldg. & Constr. Trades Council v. Mayor of
Camden, 465 U.S. 208, 219 (1984), because we hold that participation in the
National Guard constitutes a privilege protected for other, noneconomic reasons.
See Piper, 470 U.S. at 281 & n.11 (protected privileges are not limited to
economic activities) (citing Doe v. Bolton, 410 U.S. 179 (1973)). The only other
argument the state asserted with regard to the first prong is that the office of AAG
falls under the “state office” exception, which we address in the text.
9
Similar language in cases dealing with restrictions on aliens, from which
(continued...)

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position is both one that is part of the state’s authority and military structure, and

one that entails sufficient state authority. We are not convinced the AAG

exercises state power of such importance, or even that the position involves

primarily state rather than federal functions.

The state contends its state national guard unit is its “state militia” over

which the Militia Clauses of the Constitution grant states plenary authority. See

U.S. C ONST . art. I, § 8, cl. 15-16. The state correspondingly argues that a

national militia may be created only under Clause 12 of Article 1 section 8 of the

Constitution, which provides Congress may raise and regulate armies. 10 Id. art. I,

9
(...continued)
Piper draws, see Supreme Court v. Piper, 470 U.S. 274, 282-83 (quoting In re
Griffiths, 413 U.S. 717, 724 (1973)), expresses the nature of this exception more
completely:
[S]ome state functions are so bound up with the operation of the State as a
governmental entity as to permit the exclusion from those functions of all
persons who have not become part of the process of self-government. . . .
“Such power inheres in the State by virtue of its obligation, already noted
above, to preserve the basic concept of a political community.. . . And this
power and responsibility of the State applies, not only to the qualifications
of voters, but also to persons holding state elective or important nonelective
executive, legislative, and judicial positions, for officers who participate
directly in the formulation, execution, or review of broad public policy
perform functions that go to the heart of representative government.”
Ambach v. Norwick, 441 U.S. 68, 73-74 (1979) (quoting Sugarman v. Dougall,
413 U.S. 634, 647 (1973)); see also Cabell v. Chavez-Salido, 454 U.S. 432, 438-
39 (1982) (upholding requirement that peace officers be U.S. citizens).

Clause 12 provides “[t]he Congress shall have Power To raise and support
10

Armies, but no Appropriation of Money to that Use shall be for a longer Term
than two Years.” U.S. C ONST . art. 1, § 8, cl. 12.

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§ 8, cl. 12. The state further contends that the only national militia Congress

actually created under Clause 12 is the regular armed forces, and possibly the

National Guard when it is called up to active federal duty. The state’s contention

is in error. As discussed supra, the Militia Clauses are a grant of power to

Congress, not merely to the states. See Perpich v. Dep’t of Defense, 496 U.S.

334, 351-53 (1990) (that the Militia Clauses of the Constitution grant some power

to states over the National Guard does not act as an independent limit on power

over the National Guard granted to Congress in the same Clauses). In addition,

virtually all state control over its national guard unit is subject to federal

regulation, and the National Guard is a component of the national defense forces

at all times whether called up to federal service or not. The only other defense

force a state is permitted to maintain is its unorganized militia, which is not

subject to being called up as a reserve defense force by the federal government

and is therefore entirely separate from the National Guard. Id. § 109(a),(c); see,

e.g., W Y S TAT . A NN . 19-7-101.

The state also argues that the residency requirement does not violate the

Constitution because the Militia Clauses and federal statutes and regulations grant

states the power to appoint officers and to regulate these positions according to

state law. See, e.g., NGR 600-100 (11-2). These provisions notwithstanding, the

exercise of state power must conform to the Constitution. See U.S. C ONST . art.

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VI; see also McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 429-30 (1819).

Moreover, these grants of power do not in themselves expand the state

governance exception to the Privileges and Immunities Clause, or create their own

stand-alone exception for state national guard officers.

In addition, contrary to the state’s contention, the AAG position is not

entirely or even primarily a “state” position. The state urges us to adopt the

“command and control” test applied by the Sixth Circuit in Gilbert v. United

States, 165 F.3d 470 (6th Cir. 1999), to determine whether the AAG position is

state or federal. In Gilbert the court held Kentucky National Guard members did

not violate the Posse Comitatus Act (PCA) 11 by participating in state anti-drug

efforts because the defendants were in state rather than federal service at the time

in question. In so holding, the court stated that the authority having “command

and control” over the members at the time in question determined whether they

were in federal or state service. Id. at 473; see also United States v. Hutchings,

127 F.3d 1255, 1258 (10th Cir. 1997).

We decline to apply that test to this case. While a “command and control”

test may be appropriate for determining the character (state or federal) of

11
The Posse Comitatus Act, 18 U.S.C. § 1385, is intended “to prevent the
use of the federal army to aid civil authorities in the enforcement of civilian
laws.” Gilbert, 165 F.3d at 472; see also United States v. Hutchings, 127 F.3d
1255, 1257 (10th Cir. 1997).

-20-
particular actions undertaken by Guard members at a particular time, it is not

appropriate for determining the overall character of the National Guard and the

AAG position. If we were to utilize this test to examine the status of the AAG

while not federally activated, we might well determine the AAG is more state

than federal; if we were to undertake the same inquiry while an AAG was

federally activated, we would no doubt conclude the AAG was a federal actor.

Neither application would capture the dual nature and objectives of the Wyoming

National Guard for the purpose of determining whether the AAG office, in its

entirety, is a state or federal office, or both.

Instead, we must examine the National Guard and the AAG position in their

entirety. The Adjutant General is a full-time position and is required to be a state

resident by both federal and state statutes. 12 32 U.S.C. § 314; W Y . S TAT . A NN . §

19-7-103(a)(iv). The state points out that if the Adjutant General becomes

unavailable or incapacitated, under state law the AAG will execute his duties.

W Y . S TAT . A NN . § 19-7-105(a). The state argues this responsibility makes the

AAG position primarily “state” in nature. The state also argues the AAG’s other

duties are primarily related to state interests and objectives.

We express no opinion here on the residency requirement for the Adjutant
12

General position. We do, however, note the significant differences between that
position and the AAG positions.

-21-
 We agree with the district court that the AAG position is, overall, primarily

federal in nature. As discussed supra, the National Guard is an entity over which

the federal government and state government possess dual control. Even when

the Guard is not federally activated, however, the Wyoming Air and Army

National Guard units remain reserve components of the United States Air Force

and Army respectively, and most if not all functions performed by the state are

subject to federal requirements and regulations. A primary purpose of

maintaining a National Guard is to provide reserve forces to supplement the

regular (full-time) national armed forces, even if non-active national guard units

may also be used for purely state purposes. In addition, the National Guard has

become increasingly important to national defense and has become deployed for

numerous federal missions overseas.

The AAG position is provided for by federal law. See NGR 36-1; NGR

600-100 (11-3). While Wyoming state law provides for the appointment of

AAGs, W Y . S TAT . A NN . § 19-7-104, it merely implements a federal requirement

that, in order for the state unit to include officers at the rank of brigadier general,

state law must create an AAG or an equivalent position, NGR 36-1. The federal

government pays the AAG salary except while the AAG is called into active state

duty. See, e.g., W Y . S TAT . A NN . § 19-9-201. Moreover, the AAG is a part-time

position.

-22-
 Except for circumstances requiring the AAG to execute the Adjutant

General’s duties, an AAG’s duties are not specifically prescribed by state or

federal law. The record reflects that an AAG’s duties include, inter alia,

implementing federal training requirements, recruiting new members, assisting

with federal deployment, participating in military selection boards, and evaluating

and implementing state and federal strategic plans. An AAG is also empowered

to conduct court martials and confine persons to jail. These duties do not appear

to be solely or even primarily state-related. Even those duties that are not solely

federal, such as recruitment, are concerned with the needs and objectives of the

state guard unit in general, which is a dual state-federal organization. Under

these circumstances, we are not convinced the Wyoming National Guard and the

AAG positions are primarily “state” in nature.

Even if we were to conclude that the AAG position is somewhat more state

than federal in nature, it still does not constitute an exempt state governmental

function under the exception to the Privileges and Immunities Clause unless it

involves the “exercise of actual governmental power,” Piper, 470 U.S. at 293,

places the person “so close to the core of the political process as to make him a

‘formulator of government policy,’” id. at 282 n.12 (quoting In re Griffiths, 413

U.S. at 729), or is otherwise necessary to the existence of the state as a political

entity, id. at 282 & n.13. We agree with the district court that the AAG does not

-23-
fall within the Privileges and Immunities exception because AAG responsibilities

do not involve state policy formulation, do not rise to the level of exercising

actual power at the core of state government, and are not otherwise vital to the

state’s ability to function as a sovereign political body.

In arguing that the AAG is a state officer who exercises power vital to state

sovereignty, the state again points to the AAG’s responsibility for standing in as

acting Adjutant General if necessary. The state also argues the AAG engages in

the formulation of state policy, and as a military officer is closely connected to

the core of state power. As examples of policy formulation and other significant

exercises of state power, the state lists several duties AAGs perform including

developing and implementing a process for staff evaluation, sitting on the council

that formulates and implements strategic plans for the Wyoming National Guard,

and working on issues such as manpower, readiness training, recruitment, and

quality management. Aplt. Br. (Nelson) at 32-34. Given that the Wyoming

National Guard pursues both federal and state objectives, the state does not

explain how these duties involve the exercise of state rather than federal power.

Moreover, these duties also involve evaluation and reporting, and policy

implementation rather than policy formulation, and therefore do not constitute

independent creation of policy that touches on the “core” of state power. See

Piper, 470 U.S. at 282 n.12.

-24-
 The dual federal-state nature of the National Guard, and the federal nature

of many of the AAG’s responsibilities, preclude the conclusion that AAG duties

involve the exercise of significant power at the core of the state’s sovereignty.

The state’s remaining argument, that state power is implicated by virtue of the

AAG’s responsibility to execute the duties of the Adjutant General while that

office is vacant, is too minimal a basis on which to conclude the AAG is a state

office. Like the district court, we are persuaded that “the jump from State elected

office to Federal/State military appointment is too big for this Court to make.”

Aplt. App. (Nelson) at 55.

Finally, underlying the state’s preceding arguments seems to be an assertion

that any exercise of military power within the state makes for an exempt state

function because of the sovereign nature of state military power. 13 This argument

13
The state also compares the National Guard to a police force, noting that
residency requirements for police have been upheld by the Supreme Court.
However, they have been upheld only on equal protection/right to travel grounds,
not on Privileges and Immunities grounds. See McCarthy v. Philadelphia Civil
Service Comm’n, 424 U.S. 645 (1976) (per curiam) (upholding municipal
residency requirement for firemen against right to travel challenge); Detroit
Police Officers Ass’n v. City of Detroit, 405 U.S. 950 (1972) (dismissing due
process and equal protection challenge to municipal police residency requirement
for want of substantial federal question); cf. United Bldg. & Constr. Trades
Council, 465 U.S. 208 (holding that municipal residency requirement for public
contractors falls within purview of Privileges and Immunities Clause); Hicklin v.
Orbeck, 437 U.S. 518 (1978) (state law containing residency hiring preference
violative of Privileges and Immunities Clause); but see Saenz v. Roe, 526 U.S.
489, 500-01 (1999) (characterizing, in dicta, the Privileges and Immunities Clause
(continued...)

-25-
is unavailing in the context of a military organization over which the state and

federal governments have dual control, and one of whose primary purposes is to

provide reserve forces for the national defense. We therefore conclude that the

position of AAG is not exempt from the restrictions of the Privileges and

Immunities Clause.

We now consider the second prong of the analysis, whether the residency

requirement is “closely related to the advancement of a substantial state interest.”

Friedman, 487 U.S. at 65. In this regard, the state reiterates arguments it made in

contending the position of AAG is an exempt state function, asserting in essence

that the state has an interest in limiting the position to residents because the

position involves the exercise of state power and involves matters of state

concern.

We conclude this asserted state interest is not sufficiently substantial. As

we discussed at length supra, the AAG’s responsibilities do not relate solely to

state matters. Therefore, even if state responsibilities translated into a state

13
(...continued)
as comprising one component of the right to travel). The other cases cited by the
state involve the right to exclude aliens from state positions, rather than
nonresident-U.S. citizens, and were analyzed under the Equal Protection Clause
rather than the Privileges and Immunities Clause, which does not protect aliens.
See Cabell v. Chavez-Salido, 454 U.S. 432 (1982); Foley v. Connelie, 435 U.S.
291 (1978). Finally, all of these cases involve restrictions on state or municipal
public employment, and the privilege involved here is the ability to serve in the
National Guard.

-26-
interest in having a resident charged with those responsibilities, which we do not

believe the state has shown in any case, the AAG’s substantial federal duties and

objectives do not reflect any need for a Wyoming resident. As the district court

concluded, these federal duties and objectives require the opposite: that the

Wyoming National Guard draw on nonresidents to fill its ranks, including its

officer positions. As we have previously noted, approximately fifty-one percent

of the entire Wyoming Air National Guard, and twenty percent of the Wyoming

Army National Guard, are composed of nonresidents. As such, any state interest

based on state residency conflicts with the federal interest simultaneously at stake

with regard to the AAG positions and the purpose of the Wyoming National

Guard. Consequently, we also agree with the district court that in terms of state

interests related to the performance of the AAGs and the National Guard,

nonresidents do not “constitute a peculiar source of the evil” that the residency

requirement addresses. United Bldg. & Constr. Trades Council, 465 U.S. at 222

(quoting Toomer v. Witsell, 334 U.S. 385, 398 (1948)).

Moreover, practical considerations belie the state’s claim that residency is

even in the state’s interests. For example, the state presented testimony that the

ability to travel quickly to national guard headquarters in Cheyenne might be an

issue. Yet both Ms. Nelson and Mr. Dillon live in Fort Collins, Colorado, only

fifty miles from Cheyenne, while many national guard members who live in

-27-
Wyoming travel more than two hundred miles to perform their National Guard

service. The state military selection board could have considered residency as a

criteria but did not. In addition, the Governor, Wyoming National Guard officers,

and Adjutant General Boenisch all opposed the residency requirement. Aplt. App.

(Nelson) at 99, 162, 172. This supports the district court’s conclusion that the

state has no substantial interest in limiting AAGs to state residents. As the

district court noted, the only other justification the state advanced is that, in

effect, it simply wants to reserve these positions for state residents. This is not a

substantial state interest justifying restrictions on a position that implicates

federal military interests and involves a privilege protected by the Constitution.

Having determined the residency restriction is not supported by a legitimate

state interest, we need not consider whether the restriction is narrowly enough

drawn. We hold that the residency restriction violates the Privileges and

Immunities Clause. Consequently, the removals of Ms. Nelson and Mr. Dillon

from their positions as AAGs violated the Constitution.

III

The state also appeals the district court’s holding that the proper remedy for

the unconstitutional removals is reinstatement. The state asserts that the Eleventh

Amendment bars reinstatement, an issue we address because the state may raise

-28-
this defense at any point in the proceedings. J.B. v. Valdez, 186 F.3d 1280, 1285

(10th Cir. 1999).

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.

U.S. C ONST . amend. XI. The Supreme Court has held that the Amendment bars

suit against a state unless the state waives immunity or Congress has validly

abrogated immunity. See Seminole Tribe v. Florida, 517 U.S. 44, 54-55 (1996).

Neither exception applies here because the state has not waived immunity and the

Supreme Court has held that Congress did not abrogate state sovereign immunity

with the passage of section 1983. See Quern v. Jordan, 440 U.S. 332, 338-40

(1979); Edelman v. Jordan, 415 U.S. 651, 677 (1974).

Notwithstanding state sovereign immunity, “where prospective relief is

sought against individual state officers in a federal forum based on a federal right,

the Eleventh Amendment, in most cases, is not a bar.” Idaho v. Coeur d’Alene

Tribe of Idaho, 521 U.S. 261, 276-77 (1997). Under the Ex parte Young doctrine,

individuals may bring suit for prospective injunctive relief to prevent ongoing

constitutional violations against individual state officials named in their official

capacity even if the state is immune. Ex parte Young, 209 U.S. 123 (1908).

However, the Supreme Court has narrowed the availability of prospective

-29-
injunctive relief under Ex parte Young in two important respects. See Coeur

d’Alene, 521 U.S. at 281-83; Seminole Tribe, 517 U.S. at 74. The state argues

both limitations apply to this case.

In Seminole Tribe, the Court held that “where Congress has prescribed a

detailed remedial scheme for the enforcement against a State of a statutorily

created right, a court should hesitate before casting aside those limitations and

permitting an action against a state official based upon Ex parte Young.”

Seminole Tribe, 517 U.S. at 74. The state argues Congress prescribed such a

statutory scheme when it enacted 10 U.S.C. § 1552, which provides for

“Correction of military records: claims incident thereto.” The state has provided

no authority to support its conclusory assertions that the administrative remedy

provided by section 1552 was intended to supplant a constitutional challenge to a

state provision, or that the Secretary who may “correct military records” under

that section is authorized to adjudicate such a challenge. Section 1552 provides

an administrative mechanism by which federal military records may be corrected;

it is not a scheme for enforcing a statutorily created right against a state as

contemplated in Seminole Tribe. 14 Plaintiffs’ section 1983 claims arise under the

14
We note that exhaustion of the administrative remedy provided by 10
U.S.C. § 1552 has not been required where the “issues involved are purely legal,
requiring no exercise of military discretion or expertise. The federal courts are in
a better position to consider the constitutional issues presented” than is the Board
(continued...)

-30-
Constitution. We have held that the Seminole Tribe limitation, by the language of

that decision, applies only to a “‘statutorily created right.’” Ellis v. Univ. of Kan.

Med. Ctr., 163 F.3d 1186, 1997 (10th Cir. 1999) (quoting Seminole Tribe, 517

U.S. at 74) (emphasis added). Because section 1983 “did not create any

substantive rights, but merely enforce[s] existing constitutional and federal

statutory rights, we hold that Seminole Tribe’s detailed remedial scheme analysis

does not apply here.” Id. (citations omitted).

Turning to the second limitation, courts may not provide prospective

injunctive relief under Ex parte Young where doing so would implicate “special

sovereignty interests” and result in an intrusion that is the “functional equivalent”

of a form of relief otherwise barred by the Eleventh Amendment. Coeur d’Alene

Tribe, 521 U.S. at 281. To make this determination we ask:

first, whether the relief being sought against a state official implicates
special sovereignty interests; second, if the answer to the first question is in
the affirmative, we then ask whether the requested relief is the functional
equivalent to a form of legal relief against the state that would otherwise be
barred by the Eleventh Amendment.

Ellis, 163 F.3d at 1198 (citation and internal quotations omitted).

We thus consider first whether reinstatement implicates special sovereignty

interests of the state of Wyoming. The state contends such interests are

14
(...continued)
of Correction of Military Records under section 1552. Committee for GI Rights v.
Callaway, 518 F.2d 466, 474 (D.C. Cir. 1975).

-31-
implicated because the Wyoming National Guard is an essential element of state

sovereignty, and because the AAG may be called upon to replace the Adjutant

General.

In Coeur d’Alene Tribe, the plaintiff sought an injunction granting it

exclusive use, occupancy, and right to quiet enjoyment of the banks and bed of

Lake Coeur d’Alene, various navigable tributaries and effluents, and other

property lying within the original boundaries of the Coeur d’Alene reservation.

521 U.S. at 264-66. The Court held granting the requested relief implicated

special state sovereignty interests because submerged lands and navigable waters

“uniquely implicate sovereign interests.” Id. at 284. The Court traced the roots

of this principle through Justinian, English common law, and the Magna Carta,

and finally concluded that American law has only expanded the importance of

public, and therefore state, control over navigable waters. Id. at 284-87; see also

ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1193 (10th Cir. 1998) (injunctive

tax relief implicates special state sovereignty interests because “it is impossible to

imagine that a state government could continue to exist without the power to

tax.”).

While we agree that governmental control over military power is a principle

whose roots are undoubtedly as pedigreed as sovereignty over navigable waters,

here the government control in question is not exclusively that of the state. We

-32-
have already discussed the dual state-federal nature of the Wyoming National

Guard. The state of Wyoming does not have exclusive control over its National

Guard unit, and in this sense the Guard does not constitute an essential element of

the state’s sovereignty. See J.B., 186 F.3d at 1287 (welfare program “partially

funded by the federal government” does not implicate special sovereign interests).

Moreover, the Guard’s substantial federal objectives, regulation, activities,

support, and composition constitute an important federal interest. A conclusion

that the Wyoming National Guard implicates an essential element of state

sovereignty would conflict with this federal interest. 15 Similarly, the AAGs are

part-time officers in the Wyoming National Guard who perform functions largely

directed at accomplishing federal objectives. We conclude the reinstatement of

an officer with these particular characteristics to the Wyoming National Guard

would not invade core attributes of Wyoming’s sovereignty.

We also consider the second question, whether reinstatement is a form of

relief that is the functional equivalent of money damages or a similar form of

prohibited relief. 16 Ellis, 163 F.3d at 1198. Forms of prohibited relief have

15
For similar reasons, the fact that courts owe certain deference to the
judgment of military authorities concerning military interests, see, e.g., Goldman
v. Weinberger, 475 U.S. 503, 507 (1986), does not dictate that we must defer to
the state’s asserted military authority here where, as we explain supra, the state
has misconceived the nature and scope of that authority.
16
The state failed to make any argument in this respect. In the past, we
(continued...)

-33-
included money paid from the public treasury, Edelman, 415 U.S. at 663, and a

quiet title action, Coeur d’ Alene Tribe, 521 U.S. at 281-82.

In Coeur d’Alene Tribe, the Court found that the injunctive relief sought

was comparable to a quiet title action because “substantially all benefits of

16
(...continued)
have expressed some uncertainty about “whether sua sponte consideration [of
Eleventh Amendment issues] is obligatory or discretionary . . . .” V-1 Oil Co. v.
Utah State Dep’t of Pub. Corr., 131 F.3d 1415, 1419 (1997). In doing so we
noted the Supreme Court’s conflicting statements on this question. Id. at 1419-
20. Thus, in Patsy v. Board of Regents, 457 U.S. 496, 515 n.19 (1982), the Court
held that while the Eleventh Amendment defense “sufficiently partakes of the
nature of a jurisdictional bar” that the state may raise it for the first time on
appeal, it need not be raised and decided by a court sua sponte. Two years later
the Court stated that “the principle of sovereign immunity is a constitutional
limitation on the federal judicial power established in Art[icle] III,” thus
indicating the Eleventh Amendment is a jurisdictional limit courts must consider
sua sponte. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984).
More recently, the Court has stated that judicial consideration of Eleventh
Amendment issues sua sponte is discretionary, not mandatory. See Wisconsin
Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 (1998) (“Nor need a court raise [an
Eleventh Amendment] defect on its own. Unless the State raises the matter, a
court can ignore it.”); Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998)
(Rehnquist, C.J., for unanimous Court) (“While the Eleventh Amendment is
jurisdictional in the sense that it . . . can be raised at any stage in the proceedings,
we have recognized that it is not coextensive with the limitations on judicial
power in Article III.”); Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267
(1997) (The Eleventh Amendment “enacts a sovereign immunity from suit, rather
than a nonwaivable limit on the Federal Judiciary’s subject-matter jurisdiction.”).
Despite these unequivocal pronouncements, the Court also stated in one of these
recent cases that it had not yet decided whether “Eleventh Amendment immunity
is a matter of subject-matter jurisdiction.” Wisconsin Dep’t of Corrections, 524
U.S. at 391-22. In an abundance of caution, we will follow our traditional
practice of considering state immunity issues on our own motion. See V-1 Oil
Co., 131 F.3d at 1420.

-34-
ownership and control would shift from the State to the [plaintiff].” Coeur d’

Alene Tribe, 521 U.S. at 282. The relief, moreover, had “consequences going

well beyond the typical stakes in a real property quiet title action” because it

would “diminish, even extinguish, the State’s control over a vast reach of lands

and waters.” Id. Similarly, in ANR Pipeline this court considered whether a

prospective injunction ordering tax breaks and the recertification of property tax

assessments, to enforce meritorious equal protection claims with respect to state

taxes, was the functional equivalent of a form of prohibited relief. ANR Pipeline

Co., 150 F.3d at 1193-94. We determined that a “request to rewrite Kansas’

property tax code with respect to . . . natural gas pipelines” is “fully as intrusive

into the state’s sovereignty as would be a money judgment . . . .” Id. at 1194

(quotation and citation omitted).

We are simply not persuaded that the reinstatements at issue here are the

practical equivalent of money damages, even if they have a slight ancillary effect

on the state treasury. See, e.g., id. at 1189. Accordingly, we hold the Eleventh

Amendment is not a bar to reinstatement.

Finally, the state asserts that a person who is removed from a position in

violation of the Constitution must demonstrate a property interest in that position

in order to be reinstated. While it is true that an employee dismissed by the state

who is suing for procedural due process must demonstrate a property interest in

-35-
her former position, see generally Board of Regents v. Roth, 408 U.S. 564 (1972),

the requirement of a property interest has absolutely no application to claims of

substantive constitutional violations by the state. 17 See, e.g., Perry v.

Sindermann, 408 U.S. 593, 596-98 (1972) (lack of contractual right to

employment does not defeat claim of dismissal in violation of First Amendment

because “there are some reasons upon which the government may not rely” for

dismissal). Ms. Nelson and Mr. Dillon need not demonstrate a property interest in

17
Moreover, it is evident Ms. Nelson and Mr. Dillon do possess a property
interest in their respective AAG positions and the state ignores its own clearly
established law in arguing otherwise. The state asserts Ms. Nelson and Mr.
Dillon were at-will employees, claiming in support that the dismissal of military
officers is governed by W Y . S TAT . A NN . § 9-1-202 (LexisNexis 2001). That
statute provides any person “may be removed by the governor, at the governor’s
pleasure, if appointed by the governor to serve as head of a state agency,
department or division, or as a member of a state board or commission.” Id. §
9-1-202(a). However, the express language of the Wyoming statute governing the
dismissal of national guard officers provides such officers are not at-will
employees:
[A]ll officers appointed in the national guard of Wyoming except the
adjutant general shall hold their appointments until they have reached sixty-
four (64) years of age unless retired prior to that time by reason of
resignation, disability, withdrawal of federal recognition, transfer to armed
forces reserves or for cause to be determined by a courts-martial or
administrative board legally convened for that purpose.
Id. § 19-9-301 (b) (emphasis added). See also Pearson v. Hansen, 401 P.2d 954
(Wyo. 1965) (holding 19-9-301, not 9-1-202, controls removal of national guard
officers and therefore such officers may be removed only for cause). The state’s
argument that the more general statute governing state officials controls here, and
that Ms. Nelson and Mr. Dillon are at-will employees, is thus as spurious as its
assertion that Ms. Nelson and Mr. Dillon require a property interest to assert their
constitutional claims in the first place.

-36-
the AAG positions; they are both entitled to reinstatement without such a

showing.

For the foregoing reasons, the order of the district court is AFFIRMED.

-37-