### IN THE SUPREME COURT, STATE OF WYOMING

20 20 WY 149

OCTOBER TERM , A.D. 2020



### December 16 , 2020

TIMOTHY O. BEPPLER and KATHRYN L. BEPPLER, individually and on behalf of their minor grandchildren; NATHAN PRETE, individua lly and on behalf of his minor children; and TIFFANY

ESKELSON

- MAESTAS, individually and on behalf of her minor children,

Appellants (Plaintiffs),

v.

UINTA COUNTY SCHOOL DISTRICT NUMBER ONE, STATE OF WYOMING, a body corporate,

Appellee (Defendant). S

- 2 0

- 0140

A

ppeal from the D istrict Court of U inta Coun t y Th e Ho nora ble Steven K. Sharpe , Judge

Representing Appellan t s : Michael A. Rollin, Foster Graham Milstein & Calisher, LLP, Den ver, C olorado ; Sharon M. Rose, The Rose Law Firm, P.C., Evanston, W yoming . Argument by

Mr. Rollin.

Repre senting App ellee : Geoffrey J. Phillips, Phillips Law, LLC, Evanston, W yoming . Ar gument by

Mr. Phillips.

Before DAVI S, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.NOTICE: This opinion is subject to formal revi sion before pu blication in Paci fic Reporter T hi rd. Readers

are requested to notify the Clerk of the Sup reme Court, Supreme Court Building, Cheyenne, Wyomin g 82002, of any typographical or other formal errors so that correction may be made befo re final pub lication in

th e permanent volum e.1 FOX

, Justice

.

[¶1] Parents and grandparents of students in the Uinta County School District Number One filed this lawsuit to challenge a rule adopted by the School District that permitted

scho ol personnel to carry firearms on school property. They a lleged the rule (“ Rule

CKA ”) violated the Wyoming Constitution, did not comply with the enabling statute , and was not adopted in compliance with the Wyoming Administrative Procedure Act. The

distri ct court granted sum mary judgment in favor of the parents and grandparents on the ir count alleging violation of the enabling statute, and granted the School District’s motions to dismiss or for summary judgment on the remaining three counts. The parents and grandparents appe al. We conclu de the district cour t’s order invalidating Rule CKA

render s all other issues moot, and we remand for entry of a final order and dismissal of the remaining claims

.

ISSUE

[¶2] Did the summary judgment order invalidating the rule re nder th is appe al moot ?

FAC TS

[¶3] Th e 2017 Wyoming Legislature enacted a law authorizing school districts to adopt rules “to allow the possession of firearms by employees possessing a valid concealed carry permit . . . on or in” school property. Wyo. Stat. Ann. § 21

- 3

- 13 2 ( L exisNexis 2017)

. The statute requires such rules to contain certain provisions, inclu ding “ongoing training requirements, curricula and instructor qualifications, subject to approval by local

law enforcement

. . . . ” 21

- 3

- 132(c)(iii). The School Dis tri ct adopted a fire arm policy

rule in 2018, but one of the Appellants in the current action sued to challenge it , and the

district court determined the rule was not adopted in compliance “with the formal notice and rulemaking requirements of the [Wy oming Adm inistrative Proce dur e Act],” and

declared the “School Firearms Policy . . . null and void.” The School District then issued its Notice of Intent to Adopt New Rules authorizing district personnel to carry conceal ed

firearm s on scho ol propert y, followe d by an extensive rulemaki ng process. The School District approved Rule CKA April 9, 2019

. As required by Wyo. Stat. Ann. § 21

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- 132(e), the School Dis tric t S uperint endent not ified students’ parents and guardians of the rule’s adop tion by letter dated Augu st 2, 2019

.

[¶4] Appellants Timothy O. Beppler and Kathryn L. Bep pler, as grandp arents of children attending school in the Scho ol District ; Nat h an Prete, as the parent of children attending school in the School District; and Tiffany Eskelson

- Maestas, as the p arent of children attending school in the School District, filed their Compla int for Declaratory Judgment and Injunctive Rel ief August 26, 2 0 19. In Count I, they sought declaratory judgment that Rule CKA violate d the Wyoming Constitution a nd should be se t aside

pursuant to Wyo. Stat. An n. § 16

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- 114(c)(ii)(B). In Count II

, they alleged that R ule2 CKA vio lated Wyo. Stat. Ann. § 21

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- 132(c)(iii) because it did not establish instructor qualifications, and that the rule sho uld therefore “be held unlawful and set aside

. . . . ” In

Count s III and IV

, they sought judgment declaring Ru le CKA was not a d opted in complia nce with the Wyoming Administrative Procedure Act, Wyo. Stat. Ann. § 16

- 3

- 114(c)(ii). The parties filed numerous motions and cross

- motions . The distri ct court made the following rulings relevant to this ap peal:

• Dece mber 3 , 2019 Order dismis sing Counts III and IV for lack of jurisdiction, finding that those claim s should have

been filed as p etit i ons for revie w of administrative action an d

not declaratory judgment actions. The district co urt denied the School District’s motions to dismiss or for summary judgment on Count I (violation of constitution) and Count II (failure to comply with statutory requirement fo r instructor qualifications).

• April 24 , 2 02 0 Order granting plaintiffs ’ motion for summary judgment, finding Rule CKA is invalid because the rule fails to follow the statute requiring establishment of instructor qualifications.

• Apri l 24, 2020 Order dismissing Count I of the Complaint, finding that Appellants failed to state a claim of equal protection or substantiv e due process violations.

[¶5] The parents and gr andparents appeal the dismissal of Counts I, II I

, and IV o n

var i ous grounds. Th e School District did not app eal the district court’s or der finding

Rule CKA was invalid.

DISCUSSION

[¶6] The parties have not raised mootness ; however, the “doctrine [ of mootness ] represents the time element of st anding

. ” O perat i on Save Am. v. C ity of Jackson , 2012 WY 51, ¶ 21, 275 P.3d 438, 448 (Wyo . 2012)

. “ [ B ] ecause standing is a ‘vital jurisprudential’ rule, a ‘court may still, and sh ould, raise standing issues s ua sponte when the parties do not.’” Williams v. State ex rel. Univ. of Wyo

. Bd . of Tr s

. , 2019 WY 90, ¶ 7,

4 48 P.3d 222, 226 (Wyo. 2019 ) ( quoti ng In re L

- MHB , 2018 WY 140, ¶ 24, 431 P.3d 560, 568 (Wyo. 2018) )

.

[¶7] Appellants have, perhaps inadver t e ntly , ma d e a strong argum ent for mootness

. They contend W.R.C.P. 5 2(d) p roh ibited the district court ’ s con sideration of the

cons ti tutional claim because the order invalidating Rule CKA for failure to establish instructor qualifications “operates ab initio , re quiring Appellee to restart t he rulemaking3 process i f it wishes to ad op t a new Rule permitting armed staff in its schools.” The

School Distr ict’s argument that it was not required to restart rulemaking because the district court only inva lidated the rule, rathe r than decl arin g it null and void

, is unavailing. The Cour t in State B d

. of Equalization v. Jackson Hole Ski Corp. , 745 P.2d 58, 60 (Wy o. 1987) used the term “null and void.” We see no sig nificant difference

between t hose words and a finding that a rule i s “invalid, ” a wo rd the Court used to the

same effect in Crout hamel v. B d

. of Albany C n ty. Comm ’ r s , 951 P.2d 835, 839 (Wyo. 1998). Bec ause the School District was required to restart rulem aking, the controversy

over Rule CKA ended when t he district cou rt issued its order gra nting Appellants ’ summary judgment . “When no controversy exists, courts will not consume their time dealing with m oot questio ns.” Powder River Basin Res. Coun cil v. Wyo

. Dep ’ t of Env ’ t Quality , 2020 WY 1 27, ¶ 10, 473 P.3d 294, 297 (W yo. 2020) (q uoting In re Birkholz

, 2019 WY 19, ¶ 2, 434 P.3d 11 02, 1103 (Wyo. 2019) )

. This appeal is moot because the

determination of the issues ap pealed “ will have no practical eff ect on the existing controversy.” Powder River Basin

, 2 020 WY 127, ¶ 1 0, 473 P.3d at 297. Furt her, the

case was moot at the time the d istrict court entered its final order invalidating Rule CKA.

[¶8] At oral a rgument, coun sel for the Appellants suggested t his Court apply the exception to the mootness doctrine f or controversie s capable of r epetition yet evading

r eview

. That e xception requires two elements: (1) “the duration of t he challenged action

must be too s hort for completion of litigation prior to its cessation or expiration,” and (2)

“there must be a reas on able expe cta tion that the same complaining party will be subjec ted to the same action again.” Id. at ¶ 13, 473 P.3d a t 298 ( quoting Operation Save

Am

. , 2012 WY 51, ¶ 30, 275 P.3d at 450 )

. I t is likely that the same complaining parties

wi ll be subject t o the same act ion by the School District again, but the duration of that action will not be too short for completion of litigation before its cessation. Th e School District may restart rulemaking; and these parents and grandparents will hav e a full

opport un ity to ch all enge any new rule.

[¶9] Nor does the “great public im portance” exception to mootness apply. We recognize th at Appellants raise questions of c o nstitutional magnitude, which may be of great public importance. See Powder River Bas in

, 2020 WY 127

, ¶ 16, 473 P. 3d at 298. However, we decline to address the cons titutionality of a rule that is subject to revis ion and renewed challenges which w ill

, in all likelihood

, offer us an opportunity to consider the constitutionality of the rule in its most rec en t form. 1

[¶10] A decision by the Court on the issues raised in thi s appeal would be purely advisory. T here were no live issue s remaining to be litigated when the district court entered its order invalidating Rule CKA, a nd it should ha ve dismis sed the other claims.

1 Appellants have not challenged t he enabling sta tu te, Wyo . Stat. Ann. § 21

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- 132.4 Stew art Title Guar. Co. v. Tilden , 2003 WY 31, ¶ 9, 64 P.3d 739, 742 (Wyo. 2003)

. We

therefore remand to the distr ict court for dismissal of all but its order on Count II.