Did the 2007 Wyoming Legislature's $3.35 million appropriation to help pay state-plan health insurance premiums for already-retired state, university, and community-college employees violate the Wyoming Constitution's bar on 'extra compensation' to public employees after services were rendered?

Plain-English summary

In the 2007 General Session, the Wyoming Legislature appropriated $3,350,000 from the general fund to help pay state-plan health insurance premiums for retired executive, legislative, and judicial branch employees, including University of Wyoming and community college retirees, who had stayed in the State Employees' and Officials' Group Health Insurance Plan after retirement. Payments worked out to $11.50 per year of service per month for retirees not eligible for Medicare and $5.75 for those who were, capped at 30 years of service.

Senator Philip Nicholas and Representative Frank Philp asked AG Patrick Crank whether that appropriation violated the Wyoming Constitution. Article 3, Section 30 says: "No bill shall be passed giving any extra compensation to any public officer, servant or employe, agent or contractor, after services are rendered or contract made." A handful of other state high courts had read similar provisions to bar increases in pension benefits for already-retired employees.

Crank concluded the 2007 appropriation survived. A constitutional challenger carries a heavy burden under Merbanco and the Salerno "no set of circumstances" framing, and the Wyoming Constitution is a limitation on legislative power, not a grant. Several lines of analysis pointed away from invalidation:

• Anti-fraud purpose. Article 3, Section 30 sits between sections about legislative employees and about contracts being awarded to the lowest bidder subject to State Treasurer approval, suggesting it was meant to thwart improper procurement, not categorically forbid post-employment benefits.
• Long legislative practice. The opinion cataloged Wyoming retiree appropriations going back to 1921, including pension increases for pre-1953 retirees, retroactive cost-of-living adjustments, supplemental allowances for Game and Fish wardens and Highway Patrol officers, and a 1989 appropriation for retiree health premium reductions. None had been judicially invalidated. Under Pine Bluffs and Geringer v. Bebout, that legislative interpretation gets significant weight.
• Carter's narrow view of "compensation." In State v. Carter (1923), the Wyoming Supreme Court approved a payment to the widow of a state employee killed in service, treating it as a "social or moral" obligation rather than salary, and reading "compensation" narrowly.
• Public purpose under Article 16, Section 6. Subsidizing retiree health premiums furthered recruitment and retention of state workers, with recognized consideration to the state, satisfying the public-purpose constraint.
• Equal protection. Limiting the benefit to retirees who stayed in the state plan had a rational basis: those retirees had contributed to the plan's pool, and rewarding their continued participation was a legitimate state interest under the Greenwalt equal-protection framework.

The conclusion was that Section 303(h) of House Bill 001 of the 2007 General Session would withstand a constitutional challenge.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Article 3, Section 30 of the Wyoming Constitution reads: "No bill shall be passed giving any extra compensation to any public officer, servant or employe, agent or contractor, after services are rendered or contract made." It sits in the legislative-branch article between Section 29 on legislative employees and Section 31 on letting contracts to the lowest responsible bidder subject to Treasurer approval.

Article 16, Section 6 limits state expenditures to public-purpose use. Together with Article 3, Section 30, those two provisions had historically been the constitutional brakes on employee-related appropriations.

The 2007 appropriation language is reproduced in full in the opinion: $3,350,000 from the general fund to the State Auditor for fiscal year 2007–2008, paid monthly into the state plan on behalf of eligible retirees at $11.50 per year of service for non-Medicare-eligibles and $5.75 for Medicare-eligibles, capped at 30 years of service.

Common questions

Q: What is Wyoming's "extra compensation" clause?
A: Article 3, Section 30 of the Wyoming Constitution prohibits the Legislature from passing a bill giving "extra compensation" to any public officer, servant, employee, agent, or contractor after services are rendered or a contract is made. It is the Wyoming version of a clause found in many state constitutions adopted to address concerns about post-hoc gifts to public servants and contractors.

Q: Does that mean the Legislature can never give post-retirement benefits to former state employees?
A: Not in this AG's reading. The opinion's review of State v. Carter (1923) and the legislative history of similar appropriations going back to 1921 supported a narrow reading of "compensation" that did not foreclose post-employment payments justified by public purpose, especially where the payments served recognized state interests like recruitment and retention.

Q: Why did the AG think the 2007 appropriation served a public purpose?
A: Because helping retirees afford continued participation in the state health plan supported recruitment and retention of state workers (who could weigh state employment partly on the strength of post-retirement benefits) and was consistent with the recognition in Frank v. City of Cody that state expenditures with reciprocal benefits to the state are not gifts.

Q: How did equal protection come in?
A: The benefit was limited to retirees who had stayed in the state insurance plan after retirement. Under the rational-basis test in Greenwalt v. Ram Restaurant Corp., a classification gets a strong presumption of validity, and the AG concluded a legitimate state interest supported limiting the benefit to that group: those retirees had contributed to the financial viability of the pool and were the population most likely to need the help.

Q: What other state constitutions have similar provisions, and how did they read theirs?
A: The opinion cited cases from Illinois, Missouri, Nebraska, Pennsylvania, Washington, and Wisconsin holding that any increase in pension benefits to currently retired employees violated similar extra-compensation prohibitions. Other states (Arizona, Illinois in a different case, New Mexico, and Wisconsin in another case) declined to follow that absolutist view when benefits were not entirely funded out of the public treasury. The AG concluded Wyoming's Carter line and long legislative history put it in the second camp.

Q: Does this opinion mean retiree health benefits are guaranteed?
A: No. The 2007 appropriation was a one-year, one-budget-cycle decision. AG opinions are persuasive but not binding. Whether any specific future retiree benefit appropriation survives constitutional challenge will depend on its terms, the legislative record, and whatever subsequent court decisions have refined the Carter/Greenwalt framework.

Citations and references

Wyoming Constitution:
- Wyo. Const. art. 3, § 30
- Wyo. Const. art. 16, § 6

Wyoming cases:
- Wyoming Nat'l Abortion Rights Action League v. Karpan, 881 P.2d 281 (Wyo. 1994)
- Director of the Office of State Lands v. Merbanco, Inc., 2003 WY 73, 70 P.3d 241
- Witzenburger v. State ex rel. Wyoming Community Development Authority, 575 P.2d 1100 (Wyo. 1978)
- Town of Pine Bluffs v. State Bd. of Control, 647 P.2d 1365 (Wyo. 1982)
- Geringer v. Bebout, 10 P.3d 514 (Wyo. 2000)
- Frank v. City of Cody, 572 P.2d 1106 (Wyo. 1977)
- State v. Carter, 30 Wyo. 22, 215 P. 477 (1923)
- Greenwalt v. Ram Restaurant Corp., 2003 WY 77, 71 P.3d 717

Federal cases:
- United States v. Salerno, 481 U.S. 739 (1987)

Other state cases discussed:
- Porter v. Loehr, 163 N.E. 689 (Ill. 1928)
- State ex rel. Cleaveland v. Bond, 518 S.W.2d 649 (Mo. 1975)
- Police Ret. Sys. v. Kansas City, 529 S.W.2d 388 (Mo. 1975)
- Retired City Civilian Employees Club of the City of Omaha v. City of Omaha Employees' Ret. Sys., 260 N.W.2d 472 (Neb. 1977)
- Koehnlein v. Ret. Sys. for Employees, 97 A.2d 88 (Pa. 1953)
- Sonnabend v. City of Spokane, 333 P.2d 918 (Wash. 1958)
- State ex rel. Thomson v. Giessel, 53 N.W.2d 726 (Wis. 1952)
- McClead v. Pima County, 849 P.2d 1378 (Ariz. App. 1993)
- Raines v. Bd. of Trustees of Illinois State Teacher's Pension and Ret. Fund, 7 N.E.2d 489 (Ill. 1937)
- State ex rel. Hudgins v. Pub. Employees Ret. Bd., 273 P.2d 743 (N.M. 1954)
- State ex rel. Holmes v. Krueger, 72 N.W.2d 734 (Wis. 1955)

Source

• Landing page: https://ag.wyo.gov/formal-opinions
• Original PDF: https://drive.google.com/file/d/0B-uookG6TajHUmJWdU9LQW0zVDg/view?resourcekey=0-HHrXSDLBbbRYuJS4cW12FQ

Original opinion text

Office of the Attorney General
Chief Deputy Attorney General Elizabeth C. Gagen

Administration
123 State Capitol
Cheyenne, Wyoming 82002
307-777-7841 Telephone
307-777-6869 Fax

Governor Dave Freudenthal
Attorney General Patrick J. Crank

June 5, 2007

FORMAL OPINION 07-001

Honorable Philip A. Nicholas
Wyoming State Senator
P.O. Box 928
Laramie, Wyoming 82073-0928

Honorable Frank Philp
Wyoming State Representative
375 South Hidden Valley Road
Shoshoni, Wyoming 82649

RE: Constitutionality of Section 303(h) of the 2007 Budget Bill

Dear Senator Nicholas and Representative Philp:

You have requested an opinion on the following question: Is the appropriation to the State Auditor for retiree health insurance benefits [2007 Supplemental Budget, Original House Bill No. 001, Enrolled Act No. 85, at Section 303(h)] in compliance with the Wyoming Constitution, including but not limited to Article 3, Section 30?

Increasing costs have their most profound effect on folks living on fixed incomes. These individuals, who are frequently retired, have little or no potential income growth to offset the increasing health care costs including prescriptions, payments for medically necessary procedures, and health insurance. Choices therefore have to be made and "well care" and medical insurance are frequently sacrificed to pay for more immediate and necessary expenses such as food, heat, and necessary, but still costly, prescriptions. The vicious cycle of spiraling health care costs, limited or no medical insurance, and a fixed income, all too frequently confront the retired workers of Wyoming and this country.

In consideration of this problem, the Wyoming Legislature passed legislation during the 2007 General Session which provided:

There is appropriated three million three hundred fifty thousand dollars ($3,350,000.00) from the general fund to the state auditor for the period beginning July 1, 2007 and ending June 30, 2008 to be expended only for health insurance benefits for executive, legislative and judicial branch agency retirees, including retirees of the University of Wyoming and the community colleges, who participate in the state employees' and officials' group health insurance plan. Payments to the plan on behalf of the eligible retirees shall be made monthly at the rate of eleven dollars and fifty cents ($11.50) per year of service up to a maximum of thirty (30) years of service for those retirees who are not Medicare eligible, and at the rate of five dollars and seventy-five cents ($5.75) per year of service up to a maximum of thirty (30) years of service for those retirees who are Medicare eligible.

H.B. 001, Sec. 303(h), 2007 Leg., 59th Sess. (Wy. 2007).

In essence, the Legislature appropriated $3,350,000 from the general fund to the State Auditor to be expended for health insurance benefits for executive, legislative and judicial branch agency retirees who presently participate in the State's health insurance program. The payments are made to the self-insurance plan on behalf of eligible retirees who participate in the State Employees and Officials' Group Health Insurance Plan. A bill in the prior General Session provided essentially the same benefit to retirees. Although passed by the Senate, it was rejected in a House committee.

THE PRESUMPTION OF CONSTITUTIONALITY

The question is whether this appropriation constitutes "extra compensation" in violation of the Wyoming Constitution. Article 3, § 30, of the Wyoming Constitution provides:

No bill shall be passed giving any extra compensation to any public officer, servant or employe [sic], agent or contractor, after services are rendered or contract made. (emphasis added)

When presented with a constitutional challenge, the court presumes the statute to be constitutional unless the party mounting the challenge proves otherwise. A strong presumption exists in favor of constitutionality. Any doubt must be resolved in favor of the statute's constitutionality. Wyo. Nat'l Abortion Rights Action League v. Karpan, 881 P.2d 281, 289 (Wyo. 1994). Thus, in the absence of cogent reasons, all presumptions are in favor of the constitutionality of the statute. Voigt v. Bd. of Education, 108 N.E.2d 426, 429, 413 Ill. 233, 239 (1952).

In Director of the Office of State Lands, et al. v. Merbanco, Inc., 2003 WY 73, ¶ 32, 70 P.3d 241, 252 (Wyo. 2003), the Court explained the burden upon the challengers:

A person challenging the constitutionality of a statute bears a heavy burden of proving such beyond any reasonable doubt. Board of County Commissioners v. Geringer, 941 P.2d 742 (Wyo. 1997); V-1 Oil Company v. State, 934 P.2d 740 (Wyo. 1997); NJC v. State, 913 P.2d 435 (Wyo. 1996). In fact, we are duty bound to uphold statutes where possible and a facial challenge to a legislative Act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. United States v. Salerno, 481 U.S. 739, 745 (1987). (emphasis added)

Id. 2003 WY 73 at ¶ 32.

DECISIONS FROM OTHER JURISDICTIONS

A number of other state courts have held that any increase in pension benefits to currently retired employees is impermissible under constitutional provisions prohibiting extra compensation. See, Porter v. Loehr, 163 N.E. 689, 692 (Ill. 1928); State ex rel. Cleaveland v. Bond, 518 S.W.2d 649, 654 (Mo. 1975); Police Ret. Sys. v. Kansas City, 529 S.W.2d 388, 393 (Mo. 1975); Retired City Civilian Employees Club of the City of Omaha v. City of Omaha Employees' Ret. Sys., 260 N.W.2d 472, 474 (Neb. 1977); Koehnlein v. Ret. Sys. for Employees, 97 A.2d 88, 92 (Pa. 1953); Sonnabend v. City of Spokane, 333 P.2d 918, 920 (Wash. 1958); State ex rel. Thomson v. Giessel, 53 N.W.2d 726, 728 (Wis. 1952).

A few courts have disavowed an absolutist view that any increase in pension benefits to current retirees violates constitutional prohibitions on extra compensation and approved such legislation when the benefits are not totally funded out of the public treasury. See, McClead v. Pima County, 849 P.2d 1378, 1387 (Ariz. App. 1993); Raines v. Bd. of Trustees of Illinois State Teacher's Pension and Ret. Fund, 7 N.E.2d 489 (Ill. 1937) (approving increase in retirement annuity funded by voluntary employee contributions); State ex rel. Hudgins v. Pub. Employees Ret. Bd., 273 P.2d 743, 745 (N.M. 1954) (increase in pension for retired employees was predicated on voluntary contribution of lump sum to the fund by employee); State ex rel. Holmes v. Krueger, 72 N.W.2d 734, 737 (Wis. 1955) (increase in pension benefits for retired teachers constitutionally permissible because employees were not paid out of state treasury).

LEGISLATIVE INTERPRETATION OF ARTICLE 3, SECTION 30

It should be noted that Article 3, Section 30, is found in the section of the Wyoming Constitution which pertains to the Legislative branch of government and falls between Article 3, Section 29, dealing with Legislative Employees, and Article 3, Section 31, dealing with the letting of contracts to the lowest responsible bidder subject to approval of the State Treasurer. Article 3, Section 30, nestled between two provisions concerning proper and necessary expenses of the Legislature, appears to be an anti-fraud type of provision designed to thwart illegal procurement type of misbehavior. For instance, Article 3, Section 30, would obviously prohibit the additional compensation of a low bidder for printing services on behalf of the Legislature. See, e.g., Robert B. Keiter and Tim Newcomb, The Wyoming State Constitution: A Reference Guide, p. 99 (1993).

The constitutional debates themselves provide little guidance on the intent of the convention in adopting what was to become Article 3, Section 30. The Journals and Debates of the Constitutional Convention at pages 634-35 (1889) discuss the provision. While history does not always provide a crystal clear record, what little constitutional intent exists appears to support the limitation of the operation of Article 3, Section 30, to contracted services for State government and not to prohibit appropriations for items such as increased participation in retirees' health care programs. The state constitution is not a grant but a limitation on legislative power: the Legislature may enact any law not expressly or inferentially prohibited by the constitution. Witzenburger v. State ex rel. Wyoming Community Development Authority, 575 P.2d 1100, 1124 (Wyo. 1978).

It must be noted that the Wyoming Legislature has made numerous appropriations over the years that are indistinguishable from the appropriation made in House Bill 001, Section 303(h), 2007 General Session.

For instance, the Wyoming Legislature has provided pension increases to retirees as deemed necessary over the years. The Wyoming Retirement System was created in 1953 "to provide regular allowances for retired and disabled state employees and teachers." See 1953 Wyo. Sess. Laws, ch. 114, § 1, pp. 123-132. Section 19 of the Act provided, "All persons retired under one of the terminated systems or continued in retirement under such system shall be entitled to receive service or disability retirement allowances from the Wyoming Retirement Fund in accordance with the provisions of the Repeal Acts." Id. at p. 130. The Act also specifically reserved "the right to alter, amend or repeal this Act or any provision thereof" to the Legislature at Section 31. Id. at p. 132. Further, the Act was explicit that the Act would not be "construed to constitute a contract or binding obligation of any kind whatsoever." Id. § 29, p. 132.

In 1961, the Legislature approved benefit increases to all retirees, separated into three classes: "one of the terminated systems or continued in retirement under such system"; "any member of the state employees' retirement association who retired for service or disability prior to March 30, 1953"; and "any member of the Wyoming Teacher retirement system who retired for service or disability prior to March 30, 1953." Id. at p. 90.

In 1963, the Legislature appropriated $90,600 to the Retirement Fund to meet the cost of retirement allowances paid to teachers and State employees who retired prior to April 1, 1953, for the period 1963 to 1965. 1963 Wyo. Sess. Laws, ch. 68, § 1, p. 87.

In 1967, the Legislature again provided supplemental retirement benefits. 1967 Wyo. Sess. Laws, ch. 147, § 1, p. 444. These supplemental allowances were to be based on actuarial studies. The statute provided, "[b]ased on actuarial studies, the board may grant to retired members supplemental allowances. The amount of such supplemental allowances payable to individual retired members and the period, not less than two years, during which they shall be payable shall be determined by uniform rules established by the board." Id. at pp. 446-447.

In 1973, the Legislature appropriated $75,000 to the System for "Retirees prior to 1953." 1973 Wyo. Sess. Laws, ch 241, § 27, p. 458. In the 1975 appropriations act, the Legislature appropriated $66,000 to the Retirement System for "Retirees prior to 1953." 1975 Wyo. Sess. Laws, ch. 202, § 21, p. 434.

In 1978, the Legislature appropriated $1.3 million from the general fund to fund retirement increases as provided by 1978 Wyo. Sess. Laws, ch. 50, § 2, p. 358. The provision amended Wyo. Stat. § 9-5-217(e).

In 1981, the Legislature approved increased retirement allowances for specified persons: (1) the amount of allowances for persons retired prior to July 1, 1975, was increased $2.00 per month for each year of service in Wyoming; and (2) $1.00 for each year for retirees who retired on or after July 1, 1975, but prior to July 1, 1980, for each month for years of service prior to July 1, 1975. 1981 Wyo. Sess. Laws, ch. 38, § 1, p. 40. The Legislature appropriated $650,000 from the general fund to the retirement board for fiscal year 1982 to fund the increases. Id. at § 2, p. 41.

In 1982, the Legislature increased retirement allowances for specified persons retired prior to July 1, 1980, by additional sums per month per year of service in Wyoming prior to July 1, 1975. 1982 Wyo. Sess. Laws, ch. 40, § 1, p. 67. The Legislature appropriated $2.6 million from the general fund for fiscal years 1983 and 1984 to fund the increases. Id. at p. 68.

Again in 1984, the Legislature increased retirement allowances: (1) for persons retired on or after July 1, 1975, but prior to July 1, 1980, by $2.00 per month for each year of service prior to July 1, 1975; (2) for members retired after July 1, 1984, with service prior to July 1, 1975, other increases were also provided. No appropriation is found in the bill. 1984 Wyo. Sess. Laws, ch. 39, § 1, pp. 59-60.

From 1985 on, the Legislature continued to provide increased retirement benefits for retired employees. However, such increases were paid for out of the retirement funds and not general fund revenue. See, 1985 Wyo. Sess. Laws, ch. 164, § 1, pp. 276-277 (increased retirement payment); 1988 Wyo. Sess. Laws, ch. 21, § 1, pp. 48-49 (increased retirement payment); 1989 Wyo. Sess. Laws, ch. 237, § 1, pp. 469-470 (retiree cost of living adjustment ("COLA")); 1991 Wyo. Sess. Laws, ch. 12, § 1, pp. 12-13 (increased retirement payment). In 1994, retiree benefit adjustments were provided at 1994 Wyo. Sess. Laws, ch. 77, § 1, pp. 267-268, only upon an actuarially sound basis (increased retirement payment); See also 2001 Wyo. Sess. Laws, ch. 31, §§ 1-3, pp. 71-72 (increased retirement payment).

To summarize, the Legislature has appropriated approximately $5 million from the general fund to fund retirement increases for retirees. In addition, the Legislature has funded increases for retirees of the Game and Fish, Highway Patrol, and DCI Retirement Plan.

Further, up until 1998, the judges' retirement benefits were entirely funded through the general fund. In 1998, the Legislature created the "Wyoming Judicial Retirement Act" at Wyo. Stat. §§ 9-3-701 through 713. For example, in 1996 the Legislature appropriated $1,171,226 for judicial retirement from the general fund. 1996 Wyo. Sess. Laws, ch. 1, § 101, p. 119. In 1998, the Legislature appropriated $1,384,636 for judicial retirement from the general fund. 1998 Wyo. Sess. Laws, ch. 30, § 101, p. 414. In 1994, $1,059,580 was appropriated for the same purpose from the general fund. 1994 Wyo. Sess. Laws, ch. 15, § 101, p. 48.

The Legislature has apparently never viewed Article 3, Section 30, as prohibiting the Legislature's ability to compensate retirees even after these retirees have long since left State service. An agency's longstanding interpretation of a law without subsequent court or legislative action evinces legislative intent that the construction is correct. Town of Pine Bluffs v. State Bd. of Control, 647 P.2d 1365, 1367 (Wyo. 1982). In a similar vein, the Wyoming Supreme Court in Geringer v. Bebout, 10 P.3d 514, 522 (Wyo. 2000), stated "[w]e have consistently held that we give much, though not conclusive, weight to legislative interpretation, and although the legislature's interpretation of the constitution is not binding on the Court, we would be loathe to interpret the constitution otherwise." Here, the Legislature's continuous actions without any legal challenge demonstrate that Article 3, Section 30, does not prohibit the type of appropriations contained within House Bill 001, Section 303(h), 2007 General Session.

In addition, on at least one other occasion, the Legislature has appropriated money for retiree health care payments. 1989 Wyo. Sess. Laws, ch. 236, § 2, p. 469, provided a direct appropriation of $425,000 to reduce health care premium costs. The language was not limited to current employees and would have accordingly included retirees participating in the State health insurance plan:

Section 2. There is appropriated from the general fund to the board four hundred fifty thousand dollars ($450,000.00) of which not more than four hundred twenty-five thousand dollars ($425,000.00) shall be used during the months of March 1989 through June 1989 to reduce the cost of one-half (1/2) of any increase in health insurance premiums to individuals enrolled in the state plan and of which not more than twenty-five thousand dollars ($25,000.00) shall be used to hire a consultant under Section 1 of this act.

It should also be noted that since at least 1921, the Wyoming Supreme Court has recognized the Legislature's ability to make payments based on a "social or moral" duty. In State v. Carter, 30 Wyo. 22, 215 P. 477 (Wyo. 1923), the Court considered an act appropriating $1,000 to the widow of a state employee who lost his life in the discharge of his duties. The act was challenged based on Article 3, Section 30. The Court stated that the Wyoming provision is similar to its counterpart in the Texas Constitution. The Court quoted from a Texas case discussing the provision:

That provision evidently means that, when compensation is agreed upon or fixed for certain services, no extra compensation will be allowed for the same service. It was not intended to embrace claims that arose out of extra service. If extra service was rendered by virtue of proper authority, compensation could be made therefor. (emphasis added)

Carter, 215 P. at 479 (citation omitted). The court equated the word "compensation" in the section with "salary" and concluded that the provision does not prevent payment to the widow. Justice Blume concluded the payment is not salary since it arose out of a "social or moral" duty of the state to an employee who had given his life in service to the state. Id. at 479.

There is a principle that can be taken from Carter: the Court may take a narrow view of the meaning of "compensation." Under this narrow view of "compensation," an appropriation to help fund a retired worker's health insurance premium would not be prohibited.

The Legislature has made a number of "social or moral" payments over the years. Facially, each and every one of these appropriations appear to violate Article 3, Section 30, if Article 3, Section 30, is read to prohibit all payments to any State employee after they have left State service. Once again, the longstanding interpretation of the Legislature that Article 3, Section 30, does not prohibit payments to State employees after they have left service provides support that such appropriations are not unconstitutional. Geringer, 10 P.3d at 522.

It cannot be debated that numerous benefits inure to the State by the existence of a retirement program and retiree health insurance program. The fact that the State has a retirement program and allows retirees to participate in the State health insurance program leads to the recruitment and retention of quality State workers. A worker selecting between a career with the State and a private employer would naturally look at critical factors such as whether the State was willing to fund increases to his retirement payments and additional contributions to his health care premiums after he retires. The recruitment and retention of high quality State workers is critical to the operation of State government. Actions by the Legislature, such as the forward thinking appropriation provided by House Bill 001, Section 303(h), thus serve the public purpose and consideration is received by the State for these expenditures of public monies which are not violative of Article 16, Section 6, of the Wyoming Constitution. See, Frank v. City of Cody, 572 P.2d 1106 (Wyo. 1977).

Further, as noted in the Carter case:

Public conscience, therefore, the civilized world over, has been decidedly changed in the last 40 years in its attitude toward those receiving injuries or sustaining death during the course of employment. Payment under these acts is not considered in the light of a gift made to the employee but, on the contrary, is treated, partially at least, as a recognition of a moral and equitable obligation, and the aim of these acts is the establishment of natural and social justice.

State v. Carter, 30 Wyo. 22, 215 P. 477, 481 (Wyo. 1923).

Allowing State retirees access to health care by paying a portion of their health care premiums is not that dissimilar from the "moral and equitable obligation" discussed by the Court in the Carter case.

Finally, the Legislature has created a class of retirees that may be entitled to participate in this benefit. As such, an issue is whether such a classification could be challenged based on equal protection considerations. We think not.

In Greenwalt v. Ram Restaurant Corp., 2003 WY 77, ¶ 39, 71 P.3d 717, 730-31 (Wyo. 2003), the Wyoming Supreme Court outlined the principles regarding state equal protection: classifications come with a strong presumption of validity; a challenger has the heavy burden of demonstrating unconstitutionality beyond reasonable doubt; equal protection is not a license for courts to judge the wisdom or fairness of legislative line-drawing; in social-policy areas a classification must be upheld if any reasonably conceivable state of facts could support it; the rational-basis test is "not a toothless one" but it does allow wide legislative discretion.

Under the facts presented above, it is reasonable to conclude that the Wyoming Supreme Court would sustain the legislative decision limiting the appropriation to retirees who presently participate in the State group health insurance. Each eligible retiree at the time of retirement had the opportunity to continue coverage with the State program. It is rational to reward those retirees who chose to remain with the State insurance program. This group of retirees not only served the State well, they also contributed toward the financial viability of the insurance plan after retirement. As a member of the current insurance pool, there is a rational basis for selecting this group of retirees for the added insurance payment benefit.

All in all, we believe there is a rational basis supporting the decision to limit this appropriation to retirees who currently participate in the State Health Insurance Plan. Accordingly, we believe a challenge to the appropriation based on equal protection concerns would fail.

CONCLUSION

It is our ultimate conclusion for the reasons discussed herein that Section 303(h) of House Bill 001 of the 2007 General Session does not violate Article 3, Section 30, or the equal protection clauses of the constitution. Laws duly passed by the Legislature and signed by the Governor have a strong presumption of constitutionality. This is particularly true where a contrary opinion would call into question numerous other appropriations made by the Legislature since at least 1921. These appropriations which have never been challenged, but in one instance, buttress the constitutionality of the current appropriation. We believe that this appropriation would withstand a constitutional challenge.

Patrick J. Crank
Attorney General

Michael L. Hubbard
Deputy Attorney General