Gray’s involvement in Trump case prompts legislators to ask: Who can sue on Wyoming’s behalf?

A battle brewing over a clause in the Wyoming Secretary of State’s budget has reignited debate over which elected officials are supposed to represent the state’s interest in litigation.

“The fundamental question in this amendment is, how many chief executives does our state have?” Rep. Clark Stith (R-Rock Springs) said Monday on the House floor.

“If each of the five elected state officials can file litigation and take a position for the state of Wyoming outside our state borders … then our state doesn’t speak with one voice,” he said. “It is the obligation and perhaps the duty at times for our chief executive to take such positions, but we can’t have five different chief executives for the state.” 

Other lawmakers disagree. They cite past examples where the five statewide elected officials have filed lawsuits, including now-Gov. Mark Gordon during his time as treasurer, when he sued the Legislature in a spat over management of the state Capitol renovation. 

Lawmakers supporting Secretary of State Chuck Gray, who oversees elections, have also made the case that he has Wyoming’s interest in mind, being a pro-Trump state.

“I would like to emphasize that our secretary of state has an interest in free and fair elections,” Rep. Jeanette Ward (R-Casper) said Monday on the House floor. “And when our bordering states start doing wonky things, it could affect us.” 

The current debate stems from an amendment included in a footnote of the budget bill that would restrict Gray from using state funds to engage in out-of-state lawsuits. The footnote includes one exception: The Legislature could still authorize such lawsuits.

In November, Gray joined two other Republican secretaries of state in filing an amicus brief that advocated for overturning a Colorado court’s decision to remove Donald Trump from that state’s ballot because of the former president’s role in inciting the Jan. 6, 2021 riots at the U.S. Capitol. (That case has since been elevated to the U.S. Supreme Court.)

But typically, it’s the governor that sets the direction for Wyoming litigation.

“The Attorney General represents the state in legal matters under the direction of the governor,” said Michael Pearlman, spokesman for Gordon’s office. 

Gordon and the attorney general, Bridgett Hill, for example, have taken the lead on defending Wyoming’s two abortion bans against legal challenges. When Gray attempted to intervene in abortion litigation, the state’s chief executive and AG pushed back, saying he had “no legal authority” to do so and that he was “grandstanding,” the Casper Star-Tribune reported at the time. 

The budget stipulation precipitated by Gray’s amicus brief in the Colorado case could lead to broader restrictions on statewide elected officials beyond the governor suing. During a long run through dozens of amendments to the budget Monday, members of the Wyoming Freedom Caucus attempted to do away with the footnote targeting Gray, arguing it shouldn’t single out that office. That amendment failed, but members of the traditional faction within the Republican Party agreed. 

“I actually think that provision probably should be applied to all of the other big five, except the chief executive downstairs,” said Rep. Barry Crago (R-Buffalo). 

Statute book in hand, Crago, who’s an attorney, said that Wyoming law is clear on the matter. “It says, ‘the Attorney General shall … prosecute and defend all suits instituted by or against the state of Wyoming,’” he said. “It doesn’t say prosecute and defend all suits except those instituted by the number two executive in our administrative branch.” 

Increased scrutiny

Through the legislative budgeting process, Gray has faced scrutiny beyond his intervention in the out-of-state lawsuit. 

Another point of friction with lawmakers stems from Gray seeking to upgrade his office’s existing business filing software. Testifying before the Joint Appropriations Committee back in December, Gray detailed how the Secretary of State Office landed on a $3.18 million price tag for a software upgrade. It was negotiated directly with a company, and had not been bid out to other vendors, the secretary told lawmakers at the meeting. 

Members of the Appropriations Committee grilled Gray on this arrangement, reminding him that state government contracts put into a competitive bidding process can ensure taxpayers are getting the best deal. When members of the Appropriations Committee presented their budget bill last week, the seven-sum figure to modernize the filing system was not included. 

Sen. Mike Gierau (D-Jackson), who sits on the Appropriations Committee, explained the exclusion. “[Chuck Gray] told us by his own admission that he was negotiating the contract,” Gierau told WyoFile. “A sole-source contract being negotiated by one person: That is a breeding ground for waste, fraud and abuse.” 

Gierau wrote the footnote that would restrict Gray’s ability to use state funds to engage in litigation outside of Wyoming.

“There’s no line item in the secretary of state’s budget for fighting for Donald Trump,” he said. 

The secretary of state has stood behind his involvement in the Colorado legal matter. Asked Tuesday morning, Gray said he was unaware of prior secretary of states engaging in litigation, but he cited then-treasurer Gordon’s lawsuit targeting the Legislature as an “analogy” showing there’s precedent for his actions. 

“As Wyoming’s chief elections official, I have been fighting to keep President Trump on the ballot,” Gray said in an email. “That is why I filed an amicus brief.” 

Gray also defended the Secretary of State Office’s $3.18 million request. The expense for an upgrade to existing business filing software, he said in the email, would be cheaper than issuing a request for proposals to companies that would have to build a system from the ground up. 

The Wyoming Legislature has a track record targeting the five statewide elected officials, with mixed results. The legislature moved to strip former Superintendent Cindy Hill of her powers in 2013, a year that lawmakers promptly passed a bill that transferred most of the post’s powers to a governor-appointed director. The state’s Supreme Court, however, deemed the move unconstitutional.

More recently, during the Legislature’s 2022 budget session, Gierau led the charge on passing a budget footnote that increased reporting requirements for Wyoming State Treasurer Curt Meier, whose office had been struggling to keep exact track of all the state’s dollars. It worked, he said.

“I shined a light on it, and I was critical,” Gierau told WyoFile. “Two years later, Curt Meier has done an incredible job.” 

What shook out

The increased scrutiny of Gray’s budget and out-of-state litigation has been contested this session. During the first reading of the budget on the Wyoming House floor last Thursday, several members of the far-right Freedom Caucus peppered Appropriations members presenting the bill with questions. 

“What was the specific thing that we’re attempting to prevent … that prompted this?” Rep. Mark Jennings (R-Sheridan) asked. 

Rep. Bob Nicholas (R-Cheyenne), an attorney, responded saying the footnote was included to encourage Gray to comply with not just statute, but the Wyoming Constitution. Nicholas couldn’t be reached by WyoFile to clarify. 

Then on Monday, the stipulation restricting Gray’s ability to sue out of state was stripped out of the Wyoming Senate’s version of the budget bill. Sen. Dan Laursen (R-Powell) argued in favor of removing the clause. 

“I believe this paragraph encroaches on the separation of powers between the Legislature and executive branch,” Laursen said. “Let the people in the state decide in an election if they think their secretary of state is running his department correctly.” 

The balance of Wyoming senators agreed, removing the provision in a 19-11 vote. 

But later that same afternoon, a mirror amendment to strip out the footnote failed in the House. That leaves Gray’s ability to fight for Trump — or any cause — outside of Wyoming’s boundaries up in the air. A Joint Conference Committee, appointed by leadership from the two chambers, will be tasked with negotiating the final budget — and keeping or scrubbing the Secretary of State Office footnote. 

First, however, there could be more amendments — specifically, a proposal to broaden the restriction so that it also applies to the treasurer, superintendent of public instruction and auditor. Crago told WyoFile he expects that will happen during the third reading of the budget bill in the House on Wednesday.

“I might bring [that amendment] if no one else is,” he said. 

For more legislative coverage click here.

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