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Office of the Attorney General
Govemot

Civil Division

Matthew H. Mead

Kendrick Building
2320 Capitol Avenue
Cheyenne, Wyornmg 82002
307-777-7886 Telephone

Attorney Genetal
Peter K. Al[ichael

Chief Deputy Attotney General
John G. I(neppet
Division Deputy
Ryan Schelhaas

307-777-3687 Fax

June 6, 2018

FORMAL OPINION 2018-001

Matthew H. Mead, Governor

Edward A. Buchanan, Secretary of State

State of Wyoming
2323 Carey Ave.
Cheyenne, Wyoming 82002

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

Mark Gordon, State Treasurer

Cynthia I. Cloud, State Auditor

State Treasurer's Office

State Auditor's Office

2020 Carey Ave., 4th Floor
Cheyemie, Wyoming 82002

2020 Carey Avenue, 8fh 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

 Wyoming Elected Officials
June 6, 2018

Page 2

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 ?[flive (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. Ami. § 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).

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June 6, 2018
Page 3

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

 Wyoming Elected Officials
June 6, 2018
Page 4

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 53 7-22-101 defines ?[flacility? 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.
B.

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

 Wyoming Elected Officials
June 6, 2018

Page s

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,'fl 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.

 Wyoming Elected Officials
June 6, 2018

Page 6
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, ffi 75, 409 P.3d 260, (Wyo. 2018) (Kautz, .r.,
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, ffi 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.? US. 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 Cor?ectional 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.l Wyo. Stat. Ann. § 7-22-102(a)-

l The reference to, and definition of, the five state elected officials appears to have been a
deliberate legislative choice unrelated to the (former) State Board of Charities and
Reform. This is because a constitutional amendment removed the legal need for such a
board in 1989. 1989 Wyo. Sess. Laws 770, 771 (Senate J.R. No. 12). Following passage
of this amendment, the Legislature created the Department of Corrections and transferred
to it the duties of the Board of Charities and Reforrn in 1991, before abolishing the Board
entirely the next year. 1991 Wyo. Sess. Laws 571, 572 (Ch. 222); 1992 Wyo. Sess. Laws
102, 128 (Ch. 25, § 4).

 Wyoming Elected Officials
June 6, 2018
Page 7

-(c). Indeed, this Office has located no other similar statute delegating collective
decision-making authority to these officials outside an established board or commission.2
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-s-101(a); 1 1-34-102(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-s-101(a)-(b); 9-s-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.
5353 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-l02'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-s-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, ffi 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

2 Wyoming Statute § 9-2-2003(b), which requires majority approval ?of the governor,
secretary of state and state treasurer? to appoint the director of the Department of Audit,
is similar but does not require concurrence of the State Auditor and Superintendent of
Public Instruction.

 Wyoming Elected Officials
June 6, 2018
Page 8

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. or 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 Iegislature 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

 Wyoming Elected Officials
June 6, 2018
Page 9
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,

kvy?
Peter K. Michael

Wyoming Attorney General
(
'an Schelhaas

Deputy Attorney General

Karl D. Anderson

Senior Assistant Attorney General

/

4Kennr
Assistant Attorney General