* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

** Honorable Robin J. Cauthron, District Judge, United States District Court for the Western District of Oklahoma, sitting by designation. 

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

### APR 23 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

SYDNEY B. SPIEGEL and VICTOR C. PEMBERTON; LABOR PARTY OF WYOMING

Plaintiffs-Appellants,

v. THE STATE OF WYOMING; JIM GERINGER, in his official capacity as Governor of the State of Wyoming; and DIANA J. OHMAN, in her official capacity as Secretary of State of the State of Wyoming,

Defendants-Appellees. No. 96-8068 (D.C. No. 96-CV-1028) (D. Wyo.)

ORDER AND JUDGMENT *

Before BRORBY and KELLY, Circuit Judges, and CAUTHRON, ** District Judge.2

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. In this declaratory judgment action, plaintiffs cha llenge the constitutionality of the Wyoming Election Code’s re quirement that a new political party seeking access to that state’s general electi on ballot gather, within a oneyear time period, the signatures of 8,000 registere d voters by May 1 preceding the general election. See Wyo. Stat. Ann. § 22-4-402 (1992). The district c ourt entered judgment in defendants’ favor, following a bench trial. We take judicial notice that, while this appeal was pending, the Wyoming legislature amended § 22-4-402 to provide that a ne w party must obtain the requisite 8,000 signatures during a fourteen-month period ending June 1 preceding the general election. See id. , § 22-4-402(a), (e) (effective July 1, 1997); see generallyUnited States v. Coffman , 638 F.2d 192, 194 (10th Cir. 1980) (courts may take judicial notice of statutes) . The amendment of § 22-4-402 renders this appeal moot. See Jones v. Temmer , 57 F.3d 921, 922-23 (10th Cir. 1995); see also National Adver. Co. v. City & County of Denver , 912 F.2d 405, 411-12 (10th Cir. 1990) (declaratory judgment on va lidity of repealed ordinance is “textbook example” of advisory opinion unavailab le in federal court).3

Because the mootness of this appeal was not the res ult of any voluntary action on the part of plaintiffs, however, we vacat e the district court’s decision and remand with instructions to dismiss the action. See Jones , 57 F.3d at 923; see alsoU. S. Bancorp Mortgage Co. v. Bonner Mall Partners hip , 513 U.S. 18, 25 (1994) (party who seeks review of merits of adverse ruling, but who is frustrated by unilateral action of party prevailing below resu lting in appeal becoming moot, ought not be forced to acquiesce in judgment). We, therefore, DISMISS this appeal as moot. The di strict court’s decision is VACATED and REMANDED with instructions to dismis s.

Entered for the Court

Robin J. Cauthron District Judge