Wyoming statute imposes term limits on Governor Dave Freudenthal, effectively preventing him from seeking a third term in this year’s election.  Why then, is the governor’s race at a basic standstill while Freudenthal contemplates another term?

The answer rests with the constitutionality of Wyoming’s term limit laws.  Some observers believe Freudenthal could easily have these restrictions overturned in court.

Contrary to popular belief, term limits are not spelled out in the state’s constitution.  Rather, the current term limits were passed by the Wyoming Legislature in response to Democratic Governor Ed Herschler, who served three consecutive terms into the mid-1980s.

After the legislature imposed two, four-year term limits for Wyoming’s executive offices, the voters passed a ballot initiative in 1992 with 77 percent voting in favor of placing similar restrictions on Wyoming’s legislators.

Then in January 2004, two state legislators and two residents collectively filed a complaint in district court seeking Wyoming’s term limit law be ruled unconstitutional.  Representative Rodney “Pete” Anderson (R) and Senator Rich Cathcart (D) filed the complaint with constituents Scott Zimmerman and Keith Kennedy, all four from Laramie County.

Ultimately the Wyoming Supreme Court had to decide the case, and in May of that year, the court overturned the term limits placed on Wyoming’s legislators.  The court found that term limits were an additional qualification for holding legislative office, qualifications that can only be laid out in the state constitution.

In unanimous agreement, the court ruled that term limits cannot be imposed by the ballot initiative – amending the state’s constitution is required. 

However, the court did not rule on the gubernatorial term limits.

Thus, even though the state legislators are no longer prevented from seeking unlimited terms, the ruling did not apply to the five statewide offices:   the governor, secretary of state, state auditor, state treasurer, and state superintendent of public instruction.  The term limits for these executive offices are still in place today.

That is, unless someone like Governor Dave Freudenthal challenges the current statute.

To date, Freudenthal has not said whether or not he intends to seek a third term.  “He doesn’t anticipate making a decision until after the budget session” according to Jonathan Green, Press Secretary to the Governor.

That means voters will have to wait until mid-March before Freudenthal indicates his intentions one way or the other.

In the meantime, it was reported last month that Freudenthal is polling public opinion of potential 2010 gubernatorial candidates, including his own candidacy.

According to a report filed with the Wyoming Secretary of State’s office, the Folks for Freudenthal committee paid $20,000 in December to Global Strategy Group, a New York political consulting and polling firm.  Freudenthal says his campaign will likely pay Global Strategy Group an additional $10,000 to conduct a statistically valid poll of 500 to 600 statewide voters.

If Freudenthal decides to run, “The process would be the same as anyone else who wanted to run” explained Green.  “He would file with the Secretary of State, and that’s where the difference would be.  The Secretary of State would reject his application because of the term limit, and then he would have to petition the State District Court of Wyoming to find the statute unconstitutional.”

The Wyoming Supreme Court’s 2004 ruling could potentially help Freudenthal if he makes a bid for a third term.  This legal precedent is precisely why many statewide observers believe the courts would rule in Freudenthal’s favor.

Despite Freudenthal’s popularity, the very thought that he is considering a third term does not sit well with everybody.

“One of the hallmarks of American democracy is that we have a peaceful and legal transfer of power” proclaimed Philip Blumel, President of U.S. Term Limits, an organization that advocates for citizen legislatures, not career politicians.  “It’s so common here we take it for granted.  The idea of running for a third term – running for another term – past your term limit really strikes me as third world-type behavior.”

Blumel condemned Freudenthal for “seeking to repeal term limits via court challenge.  Governor Freudenthal is already gauging public opinion about a possible run for a third term.”

Nick Ayers, Executive Director of the Republican Governors Association believes Freudenthal has planned running for a third term for some time now.

“Freudenthal’s plan for slighting Wyoming’s term limits makes him about as trustworthy as the carnival worker who gives kids the bent-barrel BB gun to shoot the balloons with” Ayers noted in a statement released by the organization.  “The fix is in, and voters who overwhelmingly approved term limits are being deceived.”

Despite these criticisms, Freudenthal is insistent that he has not made up his mind.  When asked if Freudenthal is gearing up for another election, Green answered, “No, he’s retained no staff or hired any consultants.  He has the ongoing committee campaign, Folks for Freudenthal, but that’s an ongoing group.”

Others are not satisfied with that response.  “I’m concerned that we have a sitting U.S. governor in a state that has a clearly stated legal term limit and is looking to run again” exclaimed Blumel.

Even though Freudenthal has been one of the most popular governors over the years – he garnered nearly 70 percent of the votes in 2006 – some have questioned how Wyoming voters would react to the governor’s attempt to circumvent current statutes.

“If he does any polling on the idea of term limits” Blumel noted, “he’s going to find out that people love term limits for their legislatures, for their governors, for the president, for the Congress.  U.S. Term Limits naturally does polling on this issue and the last poll that we commissioned was published in October 2008.  But it was the highest approval rating for term limits that we have ever received in our polling, with about 83 percent approval in a generic question about whether our public officials should be term-limited.”

Meanwhile, four republicans are using Freudenthal’s indecision to get a head start on the campaign.  Former Wyoming U.S. Attorney Matt Mead of Cheyenne, former state Rep. Ron Micheli of Fort Bridger and state House Speaker Colin Simpson of Cody have all formed exploratory committees.

Republican State Auditor Rita Meyer recently became to fourth republican candidate for Wyoming governor.  Meyer's campaign said Thursday that she will hold announcements in Casper and Cheyenne on Tuesday.

With Freudenthal’s encouragement, democratic state senator Mike Massie has engaged in some informal meet-and-greets across the state.

In the meantime, Wyoming citizens will have to wait for about two months to hear an official word from Freudenthal.  Philip Blumel, however, has a prediction.

“I think the trial balloon that he’s sending up right now is going to get popped” Blumel said.  “He’s going to find out that people love term limits, that the legal aspects are a lot more difficult than he thought, he’s running out of time, and he’s going to give up and say that term limits are great and that he respects the voters of the state.  That’s what I actually expect to happen.  I know it’s hard for a politician to leave power and that’s why he’s mulling over alternatives.”

The 2004 State Supreme Court Case

When the Wyoming Supreme Court overturned the legislature’s term limits in May 2004, the precise questions before the court, in their own words, were:

1. Is the term limit law for state elected officials (Wyo. Stat. Ann. § 22-5-103), whether adopted by initiative or legislative action, constitutional and enforceable, given the qualifications enumerated in Article 6, §§ 2 and 15; Article 3, § 2; and Article 4, §§ 2 and 11 of the Wyoming Constitution?
2. Does the term limit law (Wyo. Stat. Ann. § 22-5-103) violate the appellants’ right to vote, given the provisions of Article 6, § 2 of the Wyoming Constitution?
3. Do the reserved powers of the people under the Wyoming Constitution include the right to alter the government by initiative or by statute with regard to the time period any one person can hold any particular state office?
4. Is this action barred by the doctrine of laches or by a statute of limitations?

In overturning this statute, the Wyoming Supreme Court concluded that the Wyoming Constitution:

Art. 1, § 1 recognizes the ultimate right of the people to ‘alter, reform or abolish’ government, through peaceful means or otherwise, but when read in pari material with the rest of the constitution, it does not contemplate the adoption of laws under the existing government, whether by legislation or initiative, other than through constitutionally established means.  The appellees conceded as much at oral argument when they conceded that Wyo. Const. art. 1 § 1 is limited by Wyo. Const. art. 3 § 52(g).  In other words, the inherent and reserved powers of the people do not include, under this constitution, the right to enact via the initiative a law that could not be enacted by the legislature.  More than a century ago, this Court recognized the power of the people to change government is controlled by the constitution.

The Wyoming Supreme Court Concluded, in their own words:

1. The term limit law (Wyo. Stat. Ann. § 22-5-103), as it applies to candidates for the state legislature, whether adopted by initiative or legislative action, is unconstitutional and unenforceable because it violates Wyo. Const. art. 1 § 3, and art. 3, §§ 2 and 52(g).
2. We decline to address the question of whether the term limit law also violates the appellant electors’ right to vote under Wyo. Const. art. 6, § 2.
3. The reserved powers of the people under the Wyoming Constitution do not include the right to alter the government by initiative or by statute with regard to the time period any one person can hold a state legislative office.
4. We decline to address the affirmative defenses of laches and the statutes of limitations as certified questions, but have answered them as part of the appeals in this matter.