December 11, 2014
In its 2013 General Session, the Wyoming Legislature passed Senate File 104, or Senate Enrolled Act 1 (“SEA 1”).1 The bill reassigned most of the duties of the state superintendent of public instruction to a director of education, to be appointed by the governor.2 On the very day Wyoming Governor Matt Mead signed the bill into law, state Superintendent of Public Instruction Cindy Hill sued, claiming the law violated the Wyoming Constitution.3 One year later, the Wyoming Supreme Court ruled that SEA 1 was unconstitutional in its entirety.4 The case is of particular interest here because the extensive decision in Powers v. State of Wyoming contributes to discussions of separation of powers and the role of the judiciary.
Cindy Hill’s lawsuit was quickly certified by the state district court to the Wyoming Supreme Court, with four questions. The Court’s majority found one question dispositive—whether SEA 1 violated Article 7, Section 14 of the Wyoming Constitution—and declined to address the other three.5 The majority found that SEA 1 deprived the superintendent of exercising her constitutional duty of “the general supervision of the public schools,” noting that the law “amends a total of 36 separate statutes and substitutes ‘director’ for ‘state superintendent’ in approximately 100 places[,]” and that “the Act transfers the bulk of the Superintendent’s previous powers and duties to the Director.”6 The court based its interpretation of the state constitution on the language of the constitution, constitutional history, and legislative history.
Article 7, Section 14 of the Wyoming Constitution has read as follows since Wyoming became a state in 1889:
“The general supervision of the public schools shall be entrusted to the state superintendent of public instruction, whose powers and duties shall be prescribed by law.”7
The State and Hill took opposing positions on the controlling language of the section, with the State arguing that the Wyoming Legislature may proscribe or remove duties at will, while Hill argued that the powers to generally supervise the public schools must have some limiting effect and that the duty could not be transferred to an appointee of the governor. Reviewing the section’s language, the court’s majority first compared it to provisions in other state constitutions as interpreted in their respective high courts. Specifically, these interpretations arose in cases from Arizona, Idaho, Minnesota, and New Mexico.8 The majority also distinguished a case from North Dakota that the state relied upon in its arguments.9 All of these cases supported Hill’s contention that, “[w]hile the legislature can prescribe powers and duties of the superintendent, it cannot eliminate or transfer powers and duties to such an extent that the Superintendent no longer maintains the power of ‘general supervision of the public schools.’”10
The majority also looked at constitutional history, specifically the minutes of the Wyoming constitutional convention. “The delegates envisioned that the scope of the Superintendent’s duties would be statewide and would involve a broad array of concerns.”11 From there, the majority examined legislative history, or how the superintendent’s duties had changed since 1889. Of particular importance was a law passed in 1917 that “transferred nearly all of the powers and duties of the Superintendent to a Commissioner of Education and the Board of Education.”12 After examination by the state attorney general, “[t]he legislation was repealed two years later amid concerns about its constitutionality.”13 The majority concluded that “[i]f legislative history is a relevant consideration in constitutional interpretation, it reflects legislative action consistent with our interpretation of the plain language of Article 7, Section 14 . . . .”14
After determining that the Wyoming Constitution reserves responsibilities to the superintendent, the court then considered whether SEA 1 violated this edict. In a cut-and-dry fashion, the majority said that SEA 1 is unconstitutional. “The 2013 Act relegates the Superintendent to the role of general observer with limited and discrete powers and duties.”15 With limited exceptions, SEA 1 stripped the superintendent of nearly all of her powers and duties under the law. “In the Act, ‘director’ is substituted for ‘superintendent’ in nearly every statutory provision in which the word ‘superintendent’ previously appeared.”16 In short, though SEA 1 made a nod to the Wyoming Constitution by claiming the superintendent would have general supervision of schools, the court concluded that “[t]he reservation of the power of ‘general supervision’ . . . is illusory.”17
The dissent, nearly as long as the majority opinion,18 largely relies on previous legislation to illustrate the varying nature of the superintendent’s duties throughout the history of Wyoming and to conclude SEA 1 is constitutional.19 Of particular concern to the two dissenting judges is the sweeping nature of the majority’s ruling, and its impact on current and future educational efforts.20 “If the legislature cannot validly transfer 68 duties from the superintendent to the director of education, can it constitutionally transfer 45 duties? Or can it only properly transfer two?”21 The majority responds by reserving this question for another day: “The certified questions addressed to this Court involved the constitutionality of SEA , not the constitutionality of any other legislation or potential legislation.”22 Following the Powers decision, though the court overturned the law in its entirety the lower court ruled that five minor portions of the law assigning new duties to the superintendent were constitutional.23
The lynchpin of the Powers decision rests on separation of powers between the executive and legislative branch and also within the executive branch. Although the majority opinion in Powers alludes to the lynchpin of SEA 1’s unconstitutionality, it is the short concurrence24 by two of the three justices in the majority that emphasizes “the constitutional convention delegates’ decision to fragment executive power[.]”25 With five elected executives in Wyoming, and so much power already concentrated in the position of the governor, the entire structure of the executive branch in the Wyoming Constitution would be undermined if SEA 1 withstood the challenge. The majority may have upheld SEA 1 if it had simply removed numerous duties from the superintendent instead of reassigning them to the appointed director of education, which in fact placed them under the control of the governor.26 Even then, respecting traditional separation of powers between the legislative and executive branch, the majority is clear that the superintendent must have some duties under the law.
“We must attempt to give meaning to all words and phrases so that no part [of the Wyoming Constitution] ‘will be inoperative or superfluous.’”27 Powers v. State is a lengthy decision that overturned an omnibus law. Its ruling is narrow yet far-reaching, and will likely be considered in not only future legislation regarding the responsibilities of the state superintendent but of the four other elected executive offices in Wyoming. The opinion may also provide valuable insight to other states with numerous elected executive offices and re-affirms that in our federalist system our state constitutions matter.
*Stephen R. Klein is a staff attorney with the Wyoming Liberty Group, www.wyliberty.org. He is a member of the Executive Committee of the Free Speech & Election Law Practice Group.
1 http://legisweb.state.wy.us/2013/Enroll/SF0104.pdf; see also http://legisweb.state.wy.us/2013/Digest/SF0104.htm
2 See generally SEA 1.
3 Wyoming Gov. Mead signs superintendent bill into law; Hill sues, Casper Star Trib., Jan. 29, 2013, available at http://trib.com/news/state-and-regional/govt-and-politics/wyoming-gov-mead-signs-superintendent-bill-into-law-hill-sues/article_82f29db5-e566-504a-b70a-7fcfe7f60b94.html.
4 Powers v. State of Wyoming, 318 P.3d 300 (Wyo. 2014). Hill sued along with Wyoming residents Kerry and Clara Powers.
5 Id. at 302.
6 Id. at 302–03.
7 Wyo. Const. art. 7, § 14.
8 Id. at 308–10.
9 Id. at 311–12.
10 Id. at 313.
11 Id. at 316.
12 Id. at 317.
13 Id. at 318.
14 Id. at 319.
15 Id. at 321.
16 Id. at 320.
17 Id. at 320.
18 Id. at. 326–51.
19 Id. at 332–342.
20 Id. at 350.
22 Id. at 323.
23 Ben Neary, Judge’s order: Most of Hill bill is unconstitutional, Casper Star Trib., Apr. 18, 2014, available at http://trib.com/news/state-and-regional/judge-s-order-most-of-hill-bill-is-unconstitutional/article_a3a0de9f-b9b0-5d7b-bdc4-539eca6c7c66.html.
24 Powers, 318 P.3d at 323–36.
25 Id. at 325.
26 This scenario is unlikely, however, as it would have probably entailed eliminating the state department of education, an action that might implicate other provisions of the Wyoming Constitution. See generally Wyo. Const. art. 7.
27 Powers, 318 P.3d at 313 (citing Geringer v. Bebout, 10 P.3d 514, 520 (Wyo. 2000)).