Did Wyoming's five statewide elected officials have to approve a federal immigration detention center proposed for Uinta County?

Plain-English summary

In mid-2018, a private contractor was promoting a proposed federal civil immigration detention center in Evanston, Wyoming (Uinta County). Wyoming's five statewide elected officials (Governor Matthew Mead, Secretary of State Edward Buchanan, State Treasurer Mark Gordon, State Auditor Cynthia Cloud, and Superintendent of Public Instruction Jillian Balow) were getting repeated public inquiries about whether they had to vote to approve or disapprove the project under Chapter 22 of Title 7 of the Wyoming statutes, the "Private Correctional Facilities" chapter.

Attorney General Peter K. Michael concluded that they did not, and further that any vote they did take would itself be unlawful because they had no statutory authority to act.

Two pieces of statute drove the analysis. The 1991 Private Correctional Facilities Act (codified at Wyo. Stat. Ann. §§ 7-22-101 through -114) defined a regulated "facility" as a "jail, prison or other incarceration facility" and required the consent of all five elected officials before the State or a local government could enter into a contract for one. The 1991 act also contained an uncodified savings clause confining its requirements to actions taken under the act itself. In 2001, the Legislature added Wyo. Stat. Ann. § 7-22-115, which prohibits private entities from constructing or operating private jails or prisons except by contract under the chapter, but the 2001 amendment did not reference or repeal the 1991 savings clause.

The AG read both pieces together to mean:

• A civil immigration detention center was not a "jail, prison or other incarceration facility" because immigration detainees are not criminally incarcerated. The U.S. Supreme Court had already characterized immigration proceedings as civil, not criminal. Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893).
• Because the proposed Evanston facility was not a "facility" under the act, the act's special consent procedure did not apply.
• The 1991 savings clause was still in force; the 2001 amendment did not repeal it by implication, since Wyoming's Supreme Court disfavors implied repeal absent positive repugnancy.
• Wyoming's executive officers can only do what the Legislature has authorized them to do. Because the act did not give the five officials authority over the immigration project, any vote (consent or rejection) would have been agency action without statutory authority and would be set aside on judicial review under Wyo. Stat. Ann. § 16-3-114.

The opinion advised the five officials to take no action.

Currency note

This opinion was issued in 2018. 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

The Private Correctional Facilities Act, 1991 Wyo. Sess. Laws 784 (ch. 252), authorized the State or a local government to contract with private entities for the construction, lease, acquisition, improvement, operation, or management of a "facility," but only with the consent of the five state elected officials as to site, number of beds, and inmate classifications. Wyo. Stat. Ann. § 7-22-102(a). Section 3 of the original act, an uncodified savings clause, said the act's requirements applied "only to actions taken or to be taken under authority of this act."

Ten years later, the Legislature added Wyo. Stat. Ann. § 7-22-115, which prohibits any private entity from constructing, operating, or managing a private jail, prison, or other inmate-housing structure except by contract under the chapter. The 2001 amendment did not mention or amend the 1991 savings clause.

The AG's analysis pulled in two doctrines:

First, the statutory definition of "facility" combined with the chapter's references to "person sentenced to the custody of the department of corrections" or "to imprisonment in a city or county jail" (Wyo. Stat. Ann. § 7-22-103). Together these read on criminal incarceration. Civil immigration detainees are detained under federal law (8 U.S.C. § 1226(a)) and have not been "sentenced." So the building proposed in Uinta County was not a "facility" under the chapter.

Second, Wyoming's longstanding rule against repeal by implication. The Wyoming Supreme Court in Standard Cattle Co. v. Baird (1899) and State ex rel. Vidal v. Lamoureux (1892) said that two statutes must be "positively repugnant" before a later one impliedly repeals an earlier one. The Court reaffirmed that rule as recently as Bird v. Wyo. Bd. of Parole, 2016 WY 100. The 1991 savings clause and the 2001 amendment were not positively repugnant. They could be read together: the 1991 act regulated the State's contracting authority, and the 2001 amendment imposed a parallel duty on private entities. Both were limited to criminal jails and prisons. Neither reached the proposed civil immigration facility.

Combined with Wyoming's separation-of-powers framework (Wyo. Const. art. 4, §§ 1, 4) and the agency-power principle from Lineberger v. Wyo. State Bd. of Outfitters, 2002 WY 55, the conclusion followed: the five officials had no authority to vote on the project, and any vote they did take would be set aside on judicial review under Wyo. Stat. Ann. § 16-3-114(c)(ii)(C). The AG also flagged Ahlenius v. Wyo. Bd. of Prof'l Geologists, 2 P.3d 1058 (Wyo. 2000), where the Wyoming Supreme Court invalidated agency action that exceeded statutory authority.

The opinion expressly did not reach the individual constitutional powers of the five officials in their separate capacities. It addressed only the question of collective consent under chapter 22.

Common questions

Q: Why was the immigration detention center treated as different from a jail or prison?
A: Because immigration detention is a civil, not criminal, process. The U.S. Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 690 (2001), characterized immigration proceedings as civil and nonpunitive. The 1991 Private Correctional Facilities Act referred to "person[s] sentenced" and to "incarcerat[ion]," language the AG read to apply only to criminal custody.

Q: What was the 1991 savings clause and why did it matter?
A: Section 3 of the 1991 Act, never codified into the Wyoming Statutes, said the act's requirements applied "only to actions taken or to be taken under authority of this act." Because the proposed immigration facility was not under the act's authority, the savings clause confirmed the consent rule did not apply.

Q: Did the 2001 amendment to chapter 22 change anything?
A: No. The 2001 amendment (Wyo. Stat. Ann. § 7-22-115) added a parallel obligation on private entities not to operate private jails or prisons except by contract under the chapter. It did not reference the savings clause and did not redefine "facility." Under Wyoming's repeal-by-implication doctrine, that meant the savings clause was still in force.

Q: What would have happened if the five officials had voted anyway?
A: The AG concluded their action would have been ultra vires, without statutory authority. Under Wyo. Stat. Ann. § 16-3-114(c)(ii)(C) and cases like Amoco Prod. Co. v. Wyo. State Bd. of Equalization, 12 P.3d 668 (Wyo. 2000), and Ahlenius v. Wyo. Bd. of Prof'l Geologists, 2 P.3d 1058 (Wyo. 2000), a reviewing court would have set the action aside.

Q: What is the 'five state elected officials' configuration in Wyoming law?
A: Wyo. Stat. Ann. § 7-22-101(a)(vi) defines them as the Governor, Secretary of State, State Auditor, State Treasurer, and Superintendent of Public Instruction. The opinion noted that the chapter 22 grant of authority to these five officials acting collectively (without reference to any board of which they are members) appeared to be unique in Wyoming law. The AG could not find another statute delegating collective decision-making authority to those officials outside an established board or commission.

Q: Did the opinion address the individual constitutional powers of the Governor or other officials?
A: No. The opinion expressly did not reach the officials' individual capacities. It addressed only their collective authority under chapter 22 of title 7.

Q: What about the opinion as it stands today?
A: The opinion was issued in 2018. Wyoming's underlying statutes may have been amended since then, and federal immigration detention practice has shifted across administrations. Anyone analyzing a similar question today should reverify both the chapter 22 statutes and federal civil-versus-criminal characterizations.

Citations and references

Wyoming statutes:
- Wyo. Stat. Ann. §§ 7-22-101 through -114 (Private Correctional Facilities Act)
- Wyo. Stat. Ann. § 7-22-115 (2001 prohibition on unauthorized private prison construction)
- Wyo. Stat. Ann. § 16-3-114 (judicial review of agency action)
- Wyo. Stat. Ann. § 9-2-2003(b) (Director of Department of Audit)
- Wyo. Stat. Ann. §§ 9-5-101 through -106 (State Building Commission)
- Wyo. Stat. Ann. § 11-34-102(b) (State Loan and Investment Board)
- Wyo. Stat. Ann. § 36-2-101 (Board of Land Commissioners)

Wyoming session laws:
- 1991 Wyo. Sess. Laws 784, 792 (ch. 252, § 3) (savings clause)
- 2001 Wyo. Sess. Laws 377 (ch. 138)

Wyoming constitution:
- Wyo. Const. art. 4, §§ 1, 4 (executive power)

Federal:
- 8 U.S.C. § 1226(a)

Cases (federal):
- Zadvydas v. Davis, 533 U.S. 678, 690 (2001)
- Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893)

Cases (Wyoming):
- Standard Cattle Co. v. Baird, 8 Wyo. 144, 153, 56 P. 598, 599 (Wyo. 1899)
- State ex rel. Vidal v. Lamoureux, 3 Wyo. 731, 734, 30 P. 243, 244 (Wyo. 1892)
- Bird v. Wyo. Bd. of Parole, 2016 WY 100, 382 P.3d 56, 64 (Wyo. 2016)
- Allred v. Bebout, 2018 WY 8, 409 P.3d 260 (Wyo. 2018) (Kautz, J., concurring)
- Lineberger v. Wyo. State Bd. of Outfitters, 2002 WY 55, 44 P.3d 56, 62 (Wyo. 2002)
- U.S. West Commc'ns v. Wyo. Pub. Serv. Comm'n, 988 P.2d 1061, 1068 (Wyo. 1999)
- Cook v. Wyo. Oil & Gas Conservation Comm'n, 880 P.2d 583, 585 (Wyo. 1994)
- Amoco Prod. Co. v. Wyo. State Bd. of Equalization, 12 P.3d 668, 672 (Wyo. 2000)
- Ahlenius v. Wyo. Bd. of Prof'l Geologists, 2 P.3d 1058, 1061-62 (Wyo. 2000)

Source

• Landing page: https://ag.wyo.gov/formal-opinions
• Original PDF: https://drive.google.com/file/d/11C1FlqLBfhnEVIcJE6kGpw5hFf4L0nCN/view

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Office of the Attorney General
Civil Division
Kendrick Building
2320 Capitol Avenue
Cheyenne, Wyoming 82002
307-777-7886 Telephone
307-777-3687 Fax

Governor Matthew H. Mead
Attorney General Peter K. Michael
Chief Deputy Attorney General John G. Knepper
Division Deputy Ryan Schelhaas

June 6, 2018

FORMAL OPINION 2018-001

Matthew H. Mead, Governor, State of Wyoming
2323 Carey Ave., Cheyenne, Wyoming 82002

Edward A. Buchanan, Secretary of State
Secretary of State's Office
2020 Carey Ave. Ste. 600, Cheyenne, Wyoming 82002

Mark Gordon, State Treasurer
State Treasurer's Office
2020 Carey Ave., 4th Floor, Cheyenne, Wyoming 82002

Cynthia I. Cloud, State Auditor
State Auditor's Office
2020 Carey Avenue, 8th Floor, Cheyenne, Wyoming 82002

Jillian Balow, Superintendent of Public Instruction
2300 Capitol Avenue, Hathaway Building, 2nd Floor
Cheyenne, Wyoming 82002

RE: The Role of the Five State Elected Officials in the Authorization of the Federal Immigration Detention Facility in Evanston

It is the understanding of this Office that each of the five state elected officials, the Governor, Secretary of State, State Treasurer, State Auditor, and Superintendent of Public Instruction, have received, both individually and collectively, repeated inquiries from public officials and members of the public regarding the potential construction of a federal immigration detention center in Uinta County, Wyoming. These inquiries raise a significant topic: whether the project would require the consent of the five state elected officials under Chapter 22 of Title 7 of the Wyoming statutes, entitled "Private Correctional Facilities." A corollary question is whether the five elected officials might pass on the issue even if their consent is not required.

The conclusion of this Office is that the immigration detention center is not a private correctional facility subject to the authority of the five state elected officials. We therefore advise that you take no action in this matter.

Legal Background

In 1991, the Wyoming Legislature enacted the Private Correctional Facilities Act. 1991 Wyo. Sess. Laws 784 (ch. 252). This act is codified at Wyoming Statutes §§ 7-22-101 through -114. Among other things, it authorized the creation of private correctional facilities, subject to the provisions of the act. Wyo. Stat. Ann. §§ 7-22-102, -103. Among these provisions is a requirement that any such project may proceed only upon receipt of "the consent of the five (5) state elected officials." Id. § 7-22-102(a). The term "[f]ive (5) state elected officials" is statutorily defined as "the governor, secretary of state, state auditor, state treasurer and superintendent of public instruction." Id. § 7-22-101(a)(vi). The original act contained an uncodified savings clause, section 3, which stated that "the requirements set forth in this act (including, in particular, requirements relating to the obtaining of necessary consents and approvals) shall be deemed to apply only to actions taken or to be taken under authority of this act[.]" 1991 Wyo. Sess. Laws 784, 792 (ch. 252, § 3) (emphasis added).

Ten years later, the Legislature returned to the subject of private prison facilities and enacted Wyoming Statute § 7-22-115. This section prohibits private entities from "construct[ing], operat[ing] or manag[ing] any private jail, prison or other structure to house or incarcerate inmates or prisoners in this state except pursuant to contract under this article." Wyo. Stat. Ann. § 7-22-115(a). Neither this amendment as codified, nor the 2001 act as enrolled, reference the 1991 savings clause provision. See id., Private Prison Operation, 2001 Wyo. Sess. Laws 377 (ch. 138).

Analysis

I. The 2001 amendment to the Private Correctional Facilities Act should not be interpreted as having repealed the 1991 savings clause by implication.

A. A civil immigration detention center does not qualify as a "facility" under Wyoming Statute § 7-22-101.

Wyoming Statute § 7-22-101 provides a definition of the word "facility"; in relevant part, this definition reads that a "facility" is "a jail, prison or other incarceration facility[.]" Wyo. Stat. Ann. § 7-22-101(a)(v). The chapter further provides that "a person sentenced to the custody of the department of corrections" or "to imprisonment in a city or county jail . . . may be incarcerated in a facility constructed or operated by a private entity[.]" Id. § 7-22-103. The ordinary definition of "jail" is "a prison, esp. one for the detention of persons awaiting trial or convicted of minor offenses." Random House Webster's Unabridged Dictionary 1022 (2d ed. 2001). "Prison" is similarly defined as "a building for the confinement of persons held while awaiting trial, persons sentenced after conviction." Id. at 1540 (emphasis added). "Incarcerate" means "to imprison; confine." Id. at 965.

The detention center contemplated in Uinta County is not a "facility" for two reasons. First, under federal case law, persons detained for immigration issues are considered civil detainees. Zadvydas v. Davis, 533 U.S. 678, 690 (2001) ("The proceedings at issue here are civil, not criminal, and we assume that they are nonpunitive in purpose and effect."). The implication of Wyoming Statute § 7-22-103 is that a "facility" under the act is a facility used for criminal (i.e., punitive) incarceration. Therefore, because immigration detainees are not criminally incarcerated, those buildings which house them are not "jail[s], prison[s], or other incarceration facilit[ies]" under Wyoming law with respect to that detention. Wyo. Stat. Ann. § 7-22-101(a)(v).

Second, Wyoming Statute § 7-22-103 contemplates that individuals "incarcerated" in private correctional facilities are "person[s] sentenced to the department of corrections" or "to imprisonment in a city or county jail." Civil immigration detainees are detained under federal law, not State authority. 8 U.S.C. § 1226(a). Furthermore, civil detainees are neither detained awaiting trial nor are they "sentenced," because immigration proceedings are in "no proper sense a trial and sentence for a crime or offense." Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893). "The order of deportation is not a punishment for crime[,]" but rather "a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation . . . has determined that his continuing to reside here shall depend." Id. Immigration detainees have thus not been "sentenced" to civil detention. A court would likely conclude therefore that this detention center is not a "facility."

B. Because the detention center is not a facility, the 1991 savings clause applies.

Again, Wyoming Statute § 7-22-101 defines "[f]acility" as "a jail, prison or other incarceration facility constructed or operated pursuant to a contract under W.S. 7-22-102." Wyo. Stat. Ann. § 7-22-101(a)(v). The following section allows "[t]he state or local government [to] contract with private entities for the construction, lease (as lessor or lessee), acquisition, improvement, operation, maintenance, purchase or management of facilities . . . but only after receiving the consent of the five (5) state elected officials as to site, number of beds and classifications of inmates or prisoners to be housed[.]" Id. § 7-22-102(a).

No contracting governmental entity may contract for such services without, again, approval of the five statewide elected officials. Wyo. Stat. Ann. § 7-22-102(b). The section also reserves the right of those elected officials to reject housing "of prisoners from out-of-state, nonfederal jurisdictions[.]" Id. § 7-22-102(d). The 1991 uncodified savings clause specifically exempts actions not taken under the 1991 act from the "requirements related to the obtaining of necessary consents and approvals." 1991 Wyo. Sess. Laws 784, 792 (ch. 252, § 3).

Because immigration detainees are considered civil detainees, the detention center which houses them is not a "facility" under Wyoming Statute § 7-22-101(a)(v). By the terms of the 1991 act, the special approval and consent procedure involving the five statewide elected officials in Wyoming Statute § 7-22-102 does not apply when, as here, the project falls outside the scope of the act. 1991 Wyo. Sess. Laws 784, 792 (ch. 252, § 3). And because the project falls outside the scope of the act, the savings clause reaffirms that the consent provisions do not apply to it. In summary, the approval of the five state elected officials is thus unnecessary for the project to go forward as conceived.

C. The 2001 amendment does not repeal the savings clause by implication.

As explained above, the Legislature amended "Private Correctional Facilities" chapter of the Wyoming Statutes in 2001. This raises the question of whether the savings clause has been repealed or somehow restricted by the 2001 amendments.

The Wyoming Supreme Court disfavors repeals by implication. See Standard Cattle Co. v. Baird, 8 Wyo. 144, 153, 56 P. 598, 599 (Wyo. 1899) ("Repeals by implication are not favored[.]"); State ex rel. Vidal v. Lamoureux, 3 Wyo. 731, 734, 30 P. 243, 244 (Wyo. 1892). Therefore, if possible, courts will avoid a "construction which must result in the repeal by implication of laws in force[.]" Vidal, 3 Wyo. at 734, 30 P. at 245. Furthermore, "to operate as [a repeal by implication] it must be a necessary implication." Standard Cattle Co., 8 Wyo. at 153, 56 P. at 599 (emphasis in original). "The two statutes must be positively repugnant or there is no repeal; and if they can stand and both have effect, they must be allowed to do so." Id. The Court abides by the same rule today. See Bird v. Wyo. Bd. of Parole, 2016 WY 100, ¶ 15, 382 P.3d 56, 64 (Wyo. 2016) ("A repeal by implication is only appropriate when the later statute is so repugnant to the earlier one that the two cannot logically stand together, or that the whole subject of the earlier statute is covered by the later one having the same object, clearly intending to prescribe the only rules applicable to the subject." (citation and internal quotation marks omitted)).

From this, the logical endpoint is that, if the 1991 savings clause and 2001 amendment, which neither references the savings clause nor makes any point to repeal it, can be read together, they should be. The original act had two parts relevant to this discussion. First, it defined what a "facility" was and required the approval of the five statewide elected officials before the State or a local government entered into a contract with a private entity to acquire, improve, manage, maintain or operate such a "facility." Wyo. Stat. Ann. §§ 7-22-101(a)(v); 7-22-102(a)-(d). Second, an uncodified savings clause limited this approval requirement to "actions taken or to be taken under authority of this act[.]" 1991 Wyo. Sess. Laws 784, 792 (ch. 252, § 3).

The 2001 amendment does not conflict with either statutory obligation; instead, where the original act applied to the State and local governments, the amendment imposes a like duty on private entities: a private entity that "construct[s], operate[s] or manage[s] any private jail, prison or other structure to house or incarcerate inmates and prisoners" must now do so "pursuant to a contract under this article." Wyo. Stat. Ann. § 7-22-115. This amendment, by its own terms, only applies to jails, prisons, or incarceration structures, which as explained above, are legally different from an immigration detention facility which performs a civil, not criminal, function. Because this amendment does not conflict with the operation of the savings clause, a court would therefore be highly unlikely to conclude that the Legislature repealed that provision by implication.

II. Because the five state elected officials do not have the authority to approve or disapprove the project, any such action would be invalid under Wyoming law.

Wyoming is a State that recognizes "limited government authority and separation of powers." Allred v. Bebout, 2018 WY 8, ¶ 75, 409 P.3d 260 (Wyo. 2018) (Kautz, J., concurring). Part of this constitutional scheme recognizes that executive branch agencies are "limited in authority to powers legislatively delegated." Lineberger v. Wyo. State Bd. of Outfitters, 2002 WY 55, ¶ 20, 44 P.3d 56, 62 (Wyo. 2002) (citation and internal quotation marks omitted). Such agencies can therefore "do no more than [they are] statutorily authorized to do." U.S. West Commc'ns v. Wyo. Pub. Serv. Comm'n, 988 P.2d 1061, 1068 (Wyo. 1999). Executive branch agencies may not legislate, expanding their own power by acting outside the authority duly provided to them by the Legislature, but rather have "an affirmative legal duty to implement the laws which are adopted by the Legislature." Cook v. Wyo. Oil & Gas Conservation Comm'n, 880 P.2d 583, 585 (Wyo. 1994).

According to the Wyoming Supreme Court, "[a]n agency's conclusions of law can be affirmed only if they are in accord with the law"; the Court's "function is to correct any error that an agency makes in its interpretation or application of the law." Amoco Prod. Co. v. Wyo. State Bd. of Equalization, 12 P.3d 668, 672 (Wyo. 2000). Furthermore, the Court has held, relying on Wyoming Statute § 16-3-114, that "a court on judicial review [must] invalidate agency findings or actions made without authority." Id.; see also Wyo. Stat. Ann. § 16-3-114(c)(ii)(C) (In reviewing an agency decision, "[t]he reviewing court shall . . . [h]old unlawful and set aside agency action, findings and conclusions found to be . . . [i]n excess of statutory jurisdiction, authority or limitations or lacking statutory right").

The Private Correctional Facilities statutes appear unique in Wyoming law in authorizing the Governor, Secretary of State, State Treasurer, State Auditor and Superintendent of Public Instruction to take collective action without reference to any board or commission of which these officials are a part. Wyo. Stat. Ann. § 7-22-102(a)-(c). Indeed, this Office has located no other similar statute delegating collective decision-making authority to these officials outside an established board or commission. Thus, their authority with regards to the approval or disapproval of private correctional facilities is based on the language of Wyoming Statutes §§ 7-22-101 through -115, and is limited to its express terms. 1991 Wyo. Sess. Laws 784, 792 (ch. 252, § 3).

Moving beyond that statute to consider the roles of the State Building Commission, State Board of Land Commissioners, and State Loan and Investment Board, the three administrative bodies of which all five state elected officials are a part, renders this point even more clear. See Wyo. Stat. Ann. §§ 9-5-101(a); 11-34-102(b); 36-2-101. For example, although statute authorizes the State Building Commission to take votes to decide "final action on any matter," the Commission's authority is limited to the promulgation of rules related to the "charge and control of the capitol building with respect to its occupancy, repair and maintenance" and "rules and regulations relative to the operation, management and use the building[.]" Id. §§ 9-5-101(a)-(b); 9-5-106(a). The Board of Land Commissioners, for its part, is given "the power and authority to take such official action as may be necessary in securing title to land grants, or any other lands acquired by the state[,]" while the State Loan and Investment Board has general authorization to make loans of state money to governmental entities, among others. Id. §§ 36-2-101; 16-1-109(a). Again, the Legislature has not delegated to any of these entities additional authority relating to private correctional facility projects.

Wyoming Statute § 7-22-102's statutory grant of authority to the five state elected officials does not encompass their ability to approve or disapprove the contemplated project. Wyo. Stat. Ann. § 7-22-102. And neither do their separate duties and responsibilities as members of the State Building Commission, Board of Land Commissioners, and State Loan and Investment Board. Id. §§ 9-5-101 through -106; 11-34-102(b); 36-2-101. Such action on this project would therefore be "more than [those officials are] statutorily authorized to do." U.S. West Commc'ns, 988 P.2d at 1068. Any such unauthorized action would not comport with the principles of "limited government authority" enunciated by the Supreme Court. Allred, ¶ 75, 409 P.3d at 280 (Kautz, J., concurring); see Lineberger, ¶ 20, 44 P.3d at 62 (holding that "administrative agencies [are] limited in authority to powers legislatively delegated" (citation and internal quotation marks omitted)). Wyoming law does not permit executive branch representatives to so unilaterally expand their authority; thus, for the five state elected officials to act outside their statutory authority in such a manner could be seen as aggrandizement at the expense of the Legislature's authority to delineate executive authority through legislation. Cook, 880 P.2d at 585.

Furthermore, the Supreme Court reverses executive branch actions taken in excess of statutory authority. Ahlenius v. Wyo. Bd. of Prof'l Geologists, 2 P.3d 1058, 1061-62 (Wyo. 2000). Any agency that takes action "contrary to the plain language of the [applicable] statute," will "run[] afoul of [the] rule that an agency enjoys only those powers which the legislature has expressly conferred[.]" Id. at 1061 (citation and internal quotation marks omitted). The Court "strictly construe[s]" "statutes under which an agency purports to exercise a doubtful power . . . against the exercise of that power." Id. at 1061-62. In Ahlenius, the Court invalidated the decision of the Board of Professional Geologists to waive certain licensure requirements on a case-by-case basis because the applicable statute only authorized a general waiver of those requirements. Id. The Court held that "[t]he Board acted arbitrarily, without statutory authority, and contrary to statutory authority" and it "reversed and remanded [the Board's decision] for approval of [the petitioner's] application for licensing." Id. at 1062.

This matter is not unlike Ahlenius. Here, as in that case, the five state elected officials lack explicit "statutory jurisdiction [or] authority" or the apparent "statutory right" to approve or disapprove of the proposed detention center project. Wyo. Stat. Ann. § 16-3-114(c)(ii)(C). A court would therefore "strictly construe[]" Wyoming Statute § 16-3-114 "against the exercise of that power." Ahlenius, 2 P.3d at 1061-62. Supreme Court precedent (and Wyoming Statute § 16-3-114) requires a reviewing court to invalidate any agency action taken without authority. Amoco Prod. Co., 12 P.3d at 672; Ahlenius, 2 P.3d at 1062. Should the five state elected officials act in this matter, either to consent or to withhold consent from this project, their action would likely be reversed on judicial review.

Each of the five elected state officials have certain constitutional authorities that may be express in the Constitution, or that are necessarily implied by the nature of their offices. For example, the Constitution invests the Governor with "[t]he executive power" and delegates to him authority to "take care that the laws" passed by the Legislature "be faithfully executed." Wyo. Const. art. 4, §§ 1, 4. In the "Private Correctional Facilities" chapter, however, the Legislature only authorized these officials to act as a group, with consent relying on the will of a majority of that group. Wyo. Stat. Ann. § 7-22-102(a). Thus, these statutes are premised on group action, analogous to actions by a state agency. Id. The authority of the elected officials, in their individual capacities, is a question that this particular chapter of statutes, as applied to the immigration detention project, simply does not pose. This opinion of the Attorney General should not therefore be read to address the individual authorities of the state elected officials, which exist in other contexts.

Conclusion

In conclusion, two key points should guide the ultimate decision of the five state elected officials whether to take up consideration of this issue. First, they have no authority to approve or disapprove the proposed federal immigration detention facility. And second, if those officials were to act even though lacking such authority, that action would be without statutory authority. Any court taking up the matter on review would therefore reverse that action, unless it were to disagree with this Office's analysis as to the authority of the five officials.

Respectfully yours,

Peter K. Michael
Wyoming Attorney General

Ryan Schelhaas
Deputy Attorney General

Karl D. Anderson
Senior Assistant Attorney General