IN the SUPREME COURT, STATE of WYOMING KERRY and CLARA POWERS, on ) Behalf of Themselves and the Citizens of ) Wyoming, And

05/17/2013

IN THE SUPREME COURT, STATE OF WYOMING

KERRY and CLARA POWERS, on ) behalf of themselves and the citizens of ) Wyoming, and CINDY HILL, on behalf ) of herself and as the ) SUPERINTENDENT OF PUBLIC ) INSTRUCTION, ) ) S-13-0052 Appellants, ) ) v. ) ) STATE OF WYOMING and ) MATTHEW H. MEAD, GOVERNOR, ) in his official capacity, ) ) Appellees. )

BRIEF OF APPELLANTS

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEES

Angela C. Dougherty Gregory A. Phillips Wyo. Bar # 6-3274 Wyoming Attorney General Dougherty Law Office, P.C. Wyo. Bar # 5-2516 1623 Central Avenue Email: [email protected] P.O. Box 254 Cheyenne, Wyoming 82003 Peter K. Michael Telephone: (307) 432-4006 Chief Deputy Attorney General Facsimile: (877) 352-8596 Wyo. Bar # 5-2309 Email: [email protected] 123 Capitol Avenue Cheyenne, WY 82002 Telephone: (307)777-7841 Facsimile: (307) 777-6869 Email: [email protected] TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... iii-v

I. STATEMENT OF THE ISSUES ...... 1

II. STATEMENT OF THE CASE ...... 2 A. Nature of the Case ...... 2 B. Course of Proceedings and Disposition Below ...... 3 C. Statement of the Facts ...... 5

III. STANDARD OF REVIEW ...... 6

IV. ARGUMENT ...... 8 Background ...... 8 Para Materia Review of Relevant Constitutional Provisions ...... 12

SENATE ENROLLED ACT 0001 VIOLATES WYOMING CONSTITUTION ARTICLE 7, SECTION 14...... 19

A. SEA0001 Violates The Plain and Unambiguous Language of Article 7, Section 14 of The Wyoming Constitution ...... 19

SENATE ENROLLED ACT 0001 VIOLATES WYOMING CONSTITUTION ARTICLE 1, SECTIONS 1 AND 20...... 31

A. SEA0001 Violates The Appellants’ Inalienable And Indefeasible Rights To Alter, Reform Or Abolish Their Government As They Deem Proper, By Infringing Upon The Electorate’s Vote, Depriving Appellants Of Their Right Of Free Speech, And Interfering With The Elective Franchise ...... 31

B. The Constitution Prohibits The Legislature And Governor From Reversing The Decision Of The People Who Created The Constitution, Agreed To Be Bound By It, And Elected A Superintendent Pursuant To The Constitution ...... 38

i SENATE ENROLLED ACT 0001 VIOLATES WYOMING CONSTITUTION ARTICLE 2, SECTION 1...... 49

A. Separation of Powers ...... 49

B. The Washakie Case ...... 51

C. The Legislature Acted Outside of its Constitutional Authority ...... 52

D. Checks and Balances ...... 54

SENATE ENROLLED ACT 0001 VIOLATES WYOMING CONSTITUTION ARTICLE 3, SECTION 27...... 55

A. Special Laws And Uniform Operation Of General Laws ...... 55

V. CONCLUSION ...... 59

CERTIFICATE OF SERVICE ...... 61

ii TABLE OF AUTHORITIES Cases

Anderson v. Superior Court, 11 Cal 4th 1152 (1995) ...... 33

Attorney-General v. Squires (1859) 14 Cal 12 ...... 33

Baessler v. Freier, 258 P.3d 720, 2011 WY 125 (Wyo. 2011) ...... 57

Brimmer v. Thompson, 521 P.2d 574 (Wyo.1974) ...... 37

Cathcart v. Meyer, 2004 WY 49, 88 P.3d 1050 (Wyo. 2004) ...... 7, 12, 38, 39

Dir. of Office of State Lands & Invs. v. Merbanco, Inc., 2003 WY 73, 70 P.3d 241 (Wyo. 2003) ...... 19

Geringer v. Bebout, 10 P.3d 514 (Wyo. 2000) ...... 24

Jones v. State, 2007 WY 201, 173 P.3d 379 (Wyo. 2007) ...... 7

Maxfield v. State of Wyo., 2013 WY 14, 294 P.3d 895 (Wyo. 2013) ...... passim

Miller v. City of Laramie, 880 P.2d 594 (Wyo.1994) ...... 7

Murphy v. State Canvassing Bd., 12 P.3d 677 (Wyo. 2000.) ...... 37

People v. Kelsey (1868) 34 Cal. 470 ...... 33

Renyolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed2d 506 (1964) ...... 31

State ex. Rel. Richardson v. Henderson, 35 P. 517 (Wyo. 1894) ...... 50

State v. Campbell County Sch. Dist., 32 P.3d 325, 2001 WY 90 (Wyo. 2001) ...... 50

Tully v. Edgar, 171 Ill.2d 297 N.E.2d 43, Ill.Dec. 646, 109 Ed. Law Rep. 315 (1996) ...... 33

Witzenburger v. State ex rel. Wyo. Comty. Dev. Aut., 575 P.2d 1100 (Wyo. 1978) ...... 5

Washakie Sch. Dist. No. 1 v. Herschler, 606 P.2d 310 (1980) ...... 45, 51

iii Statutes

WYO. STAT. § 21-1-104 ...... 10

WYO. STAT. § 21-2-201 ...... 8, 10, 54

WYO. STAT. § 21-2-202 ...... 10, 54

Other Authorities

1917 Wyo. Session Laws, Ch. 120 ...... 8

73 Am. Jur.2d Statutes § 4 (2001) ...... 56

Black’s Law Dictionary (4th Edition, 1951) ...... 22, 23, 43

Journal of Debates of the Constitutional Convention, State of Wyoming ...... 9, 22, 26, 27

The Random House Dictionary of the English Language (1966) ...... 20

The Wyoming Constitutional Convention and Adoption of Wyoming’s Constitution, 1889, and the Aftermath, http://uwacadweb.uwyo.edu/robertshistory/wyoming_constitutional.htm...... 35 Constitutional Provisions

Wyo. Const., art. 1, § 1 ...... 12, 38, 39, 53

Wyo. Const., art. 1, § 23 ...... 13, 39

Wyo. Const., art. 2, § 1 ...... 49

Wyo. Const., art. 7, § 4 ...... 15, 44

Wyo. Const., art. 7, § 7 ...... 16, 44, 53

Wyo. Const., art. 3, § 27 ...... 13, 40, 53

Wyo. Const., art. 5, § 2 ...... 28

Wyo. Const., art. 6, § 16 ...... 15, 42

Wyo. Const., art. 7, § 1 ...... 15, 43, 52, 54

iv Wyo. Const., art. 7, § 6 ...... 16, 44

Wyo. Const., art. 7, § 9 ...... 16, 45

Wyo. Const., art. 7, § 11 ...... 17, 46, 53

Wyo. Const., art. 7, § 14 ...... passim

Wyo. Const., art. 21, § 28 ...... 18, 52, 54

v I. STATEMENT OF THE ISSUES

(PRESENTED AS CERTIFIED QUESTIONS)

I. Does Senate Enrolled Act 0001 violate Wyoming Constitution Article 7, Section 14?

II. Does Senate Enrolled Act 0001 violate Wyoming Constitution Article 1, Section 1 and Section 20?

III. Does Senate Enrolled Act 0001 violate Wyoming Constitution Article 2, Section 1?

IV. Does Senate Enrolled Act 0001 violate Wyoming Constitution Article 3, Section 27?

1 II. STATEMENT OF THE CASE

A. Nature of the Case

In the 2010 General Election, Wyoming voters elected Appellant Cindy Hill to serve Wyoming as Appellees’ Superintendent of Public Instruction for a four year term in office. On January 25, 2013, the Wyoming Legislature passed Senate

File 104 (“SF104”). SF104 removed Superintendent Hill as the administrator and chief executive officer of the Department of Education and created the position of a “director” to serve at the Governor’s pleasure. On January 29, 2013, Governor

Mead signed SF104 into law, which became effective immediately upon Governor

Mead’s signature. Thereafter, SF104 became Senate Enrolled Act 0001

(“SEA0001”). That same day, Appellant Superintendent Hill, and two citizen voters, filed a declaratory judgment action asserting that the legislation is unconstitutional.1

Superintendent Hill asserts, in her official capacity, that by removing almost all of her powers and duties, and transferring them to an unelected gubernatorial

1 Kerry and Clara Powers joined this action as private citizens who voted for Superintendent Hill during the 2010 General Election. Superintendent Hill brought the action both in her official capacity as the elected Superintendent affected by the legislation, as well as in her capacity as a private citizen voter in the 2010 General Election.

2 appointee, the legislation unconstitutionally divested her of her authority to generally supervise Wyoming’s public schools as set forth in the Wyoming

Constitution. The Appellants, as private citizens, further assert that SEA0001 unconstitutionally abridged their right to free speech by nullifying their votes for both the Office of Superintendent, as well as for that of Governor, when each official’s duties were drastically altered by the legislation during the middle of their terms in office. In doing so, the legislation also nullified Appellants’ inalienable and indefeasible rights to alter, reform, or abolish government in such manner as the electorate deems proper under the Wyoming Constitution.

Appellants also assert that the Legislature has unconstitutionally encroached upon the powers and duties of the executive branch by centralizing all authority over education in the Legislature. Lastly, Appellants assert that SEA0001 is unconstitutional because it does not apply in a uniform fashion to individuals in the same classification.

B. Course of Proceedings and Disposition Below

On January 29, 2013, the Governor, with his signature, passed into law

SEA0001, and Appellants filed a Complaint and Petition for Declaratory Judgment in the District Court for the First Judicial District that same day. (Attach. 1).

Appellants also filed a Motion for Temporary Restraining Order and Preliminary

Injunction and Memorandum in Support of Motion for Temporary Restraining

3 Order and Preliminary Injunction on January 29, 2013. (Attachs. 2 and 3). On

February 5, 2013, the Superintendent filed her First Supplemental Affidavit

(Attach. 4), Status Report (Attach. 5), and Verified Affidavit of Sheryl Lain

(Attach. 6).

On February 19, 2013, Appellees (“State”) filed their answer. (Attach. 7).

Appellees also filed their Memorandum in Opposition to Appellants’ Motion for

Preliminary Injunction contemporaneously with their Answer to the Complaint.

(Attach. 8).

On February 28, 2013, the Superintendent filed her Second Status Report

(Attach. 9) and her Second Supplemental Affidavit. (Attach. 9, at Ex. A). On

March 1, 2013, the Appellants filed their Reply to Appellees’ Memorandum in

Opposition. (Attach. 10).

On March 8, 2013, Appellees filed Defendant’s Motion to Strike Affidavits.

(Attach. 11). On March 12, 2013 and March 13, 2013, Appellees and Appellants filed their respective positions concerning certification of questions to the

Wyoming Supreme Court. (Attachs. 12 and 13).

On March 14, 2013, the District Court heard argument regarding the

Appellants’ requested injunctive relief. (Attach. 14 – Transcript of March 14, 2013

4 hearing). The District Court entered an Order Denying Request for Preliminary

Injunction (Attach. 15), and it’s Certification Order (Attach. 16), which this Court accepted through its Notice of Agreement to Answer Certified Questions on March

22, 2013.

C. Statement of the Facts

The following facts are drawn from the District Court’s Certification Order

(Attach. 16), which was based on Appellants’ and Appellees’ proposed certified questions (Attachs. 15 and 14): Appellants are Wyoming residents and voters, who in the 2010 General Election, elected Cindy Hill as the Superintendent of

Public Instruction to serve a four-year term. (Attach. 16). SEA0001 is a legislative act that was signed by the Governor of Appellees of Wyoming and became law on January 29, 2013. Id. SEA0001 became effective immediately. Id.

The background of SEA0001 is detailed in Section IV of this brief.

III. STANDARD OF REVIEW

It is this Court's “imperative duty to declare a legislative enactment invalid if it transgresses the state constitution.” Witzenburger v. State ex rel. Wyo. Cmty. Dev.

Auth., 575 P.2d 1100, 1113-14 (Wyo. 1978). This is the overarching standard and no rule of construction can make an unconstitutional enactment constitutional.

5 This Court's ruling in Cathcart v. Meyer, 2004 WY 49, 88 P.3d 1050 (Wyo. 2004) and Maxfield v. State of Wyoming, 2013 WY 14, 294 P.3d 985 (Wyo. 2013) reaffirms that the Court will review legislation for constitutionality.

This case challenges the constitutionality of SEA0001 and its transference of an elected official’s constitutionally vested power, in the middle of her term, to another individual, thereby prohibiting her from performing that which the

Constitution exclusively requires of the office holder. Also at issue is the legislation’s abridgement of the fundamental rights of Appellants, as Wyoming voters, to determine their governance through the power of their votes. The impact of the legislation on these fundamental rights of both the office holder and the

Wyoming electorate present issues of law for which the government ultimately bears the burden to justify its legislation.

Absent infringement of a constitutional right, like those present in this challenge, this Court has presumed constitutionality of a statute:

We must be careful not to forget that, where a statute or constitutional provision is unambiguous, there is no need to apply the various rules of construction. In particular, the rule that statutes are presumed to be constitutional is a rule of construction, not an independent rule of law. Courts do, indeed, have a duty to maintain the constitutionality of a statute where possible, but there is an equally imperative duty to declare a statute unconstitutional if it transgresses the state constitution. Wyoming Coalition v. Wyoming Game and Fish Com'n,

6 875 P.2d 729, 732 (Wyo.1994); Witzenburger (v. State ex rel. Wyoming Community Development Authority), 575 P.2d at 1114.

Cathcart v. Meyer, 2004 WY 49, ¶ 7, 88 P.3d 1050 at 1056, (Wyo. 2004).

Where fundamental constitutional rights are at issue, the burden of proving constitutionality is placed on the government entity to justify the validity of the statute:

. . . where a citizen's fundamental constitutional right, such as free speech, is involved. The strong presumptions in favor of constitutionality are inverted, the burden then is on the governmental entity to justify the validity of the ordinance, and this Court has a duty to declare legislative enactments invalid if they transgress that constitutional provision.

Jones v. State, 2007 WY 201, ¶7, 173 P.3d 379, 382-85 (Wyo. 2007) (quoting

Miller v. City of Laramie, 880 P.2d 594, 597 (Wyo.1994).

The fundamental right of the Superintendent to execute the constitutional authority vested exclusively in her office, as well as the Appellants’ fundamental rights as voters to express themselves and choose their governance through the ballot box require that the Legislature and Governor bear the burden of justifying the constitutional validity of SEA0001.

7 IV. ARGUMENT

Background of SEA0001.

Since its creation, the Department of Education has become the administrative arm of the Superintendent of Public Instruction.2 Previously, the

Superintendent headed the Department of Public Instruction which became the

Department of Education in 1917. (1917 Session Laws, Ch. 120). Since that time, no separate agency or other means has existed for the Superintendent to carry out the general supervision of the public schools.

Prior to the enactment of SEA0001, the Superintendent’s constitutionally vested responsibility for general supervision of public schools was set forth in

WYO. STAT. § 21-2-201, which read as follows: “The general supervision of the public schools shall be entrusted to the state superintendent who shall be the administrative head and chief executive officer of the department of education.”

This statutory structure for carrying out the general supervision of public schools was not only consistent with the plain language of Article 7, Section 14 of the Wyoming Constitution, but it was also consistent with the Framers’ intent.

2 Under the 1917 act, the Department of Education’s powers of administration were originally placed under the state Board of Education. Recognizing the error of this system, the Legislature placed the Superintendent of Public Instruction as the head of Department of Education in 1919. See 1919 Session Laws.

8 When discussing the role and responsibilities of the office, the Framers created one office holder responsible for education -- vesting the general supervision of the public schools with the Superintendent of Public Instruction. No other office holder was given this specific charge. The Superintendent, the Framers stated, is to “oversee the whole work of education in this state” and would be “the head of education in this state.” Journal of Debates of the Constitutional Convention, State of Wyoming, at 465. Over the years, Superintendents of Public Instruction have come to rely on the Department of Education as the means for performing their constitutional charge of general supervision. Superintendents of Public Instruction had no separate budget, no separate staff, and no separate means of supervising the public schools. The mechanism and vehicle for carrying out all authority and duties was the Department of Education; thus, all general supervision found its home in the Department of Education.

SEA0001 transferred all means of carrying out general supervision to a

“director” of the Department of Education, which Section 4 of SEA0001 made clearer: “It is the intention and direction of the Legislature that: All divisions, agencies, programs, positions, personnel, property, appropriated funds of the department of education shall transfer immediately to the interim director of the department of education as appointed by the governor as required by this act; . . .”

(Attach. 1, at Ex. A).

9 Where WYO. STAT. § 21-2-201 previously provided that the Superintendent, as the person constitutionally vested with the general supervision of the public schools, was the administrative head and chief executive officer of the department of education, SEA0001 removed the Superintendent as the administrative head and chief executive officer of the Department of Education. Although the words

“general” and “supervision” (as used by Article 7, § 14 of the Wyoming

Constitution with parallel use in the statute) denote the chief executive, the revised section severs general supervision from the Superintendent:

(a) The general supervision of the public schools shall be entrusted to the state superintendent who shall be the administrative head and chief executive officer of the department of education as prescribed by law.

Id.

Prior to its amendment, WYO. STAT. § 21-2-202 prescribed the powers and duties of the Superintendent of Public Instruction. Section 202 contained many pages of duties of a broad and general nature. In each instance where the

Superintendent held duties, SEA0001 shifted those duties to the director. Section 1 of WYO. STAT. § 21-1-104, as now amended, provides that “The director shall carry out the duties prescribed by WYO. STAT. § 21-2-202 and other duties as may be prescribed by law.” The transfer of authority occurs over 100 times in

SEA0001. The director has taken over most functions of education including working with the State Board of Education, local school districts and

10 administrators, enforcing the education laws, accrediting schools, standardizing curriculum, funding of public schools, administering federal funds, overseeing all assessments (testing) and related functions, collecting school data, administering functions related to special education and children with disabilities, technology, vocational educational requirements, and administering the block grant model, to name but a few of the functions transferred to the director. (Attach. 9, at Ex. A-1).

The constitutional office of Superintendent of Public Instruction has been replaced by the director of the Department of Education, who now possesses the general supervision that the Wyoming Constitution exclusively reserves to the

Superintendent.

After passage of SEA0001, the Superintendent has only ministerial duties.

These duties include preparing an annual report on school status, perfunctory rulemaking, performing ceremonial tasks relating to “teacher of the year,” assisting with “seclusion and restraint” rules, assisting local school boards on policies relating to head injuries or concussions, developing guidelines on toxic chemical disposals by schools in consultation with the Department of Environmental

Quality, and identifying professional development needs and providing up to five annual regional workshops for professional development. Where the

Superintendent previously had a staff of more than 150, SEA0001 limited the

Superintendent’s staff to 7 positions. Where the Superintendent previously had a

11 budget of over $1.9 billion, SEA0001 limited the Superintendent’s budget to $1.6 million -- a reduction to 1/1000th of its previous size. (Attach. 14, at 25-26).

In Pari Materia Review of Relevant Constitutional Provisions

All Constitutional provisions must be read in pari materia to ascertain the

Framers’ intent. Maxfield v. State of Wyo., 2013 WY 14, ¶¶27, 28, 294 P.3d 895, at 901 (Wyo. 2013). The relevant provisions of the Wyoming Constitution, discussed throughout this Brief, and which must be read in pari materia, are set forth below to assist the Court in its work.

Article 1, Section 1. Power inherent in the people.

All power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety and happiness; for the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish the government in such manner as they may think proper.

As discussed in Cathcart v. Meyer, 2004 WY 49, 88 P.3d 1050 (Wyo. 2004) and Maxfield, the first clause of the Constitution is a declaration reserving to the people the ultimate authority of governance. The article describes a decentralized political system in which the authority of the government is derived solely from the governed. It reserves to the governed the ultimate authority to implement fundamental changes, and implicitly denies the government all power and authority not granted to it. Both Cathcart and Maxfield acknowledge such fundamental

12 changes occur only through the amendment process. Cathcart, 2004 WY 49 at ¶

44, 88 P.3d at 1067; Maxfield, 2013 WY 14 at ¶ 27, 294 P.3d at 901.

Article 1, Section 23. Education.

The right of the citizens to opportunities for education should have practical recognition. The legislature shall suitably encourage means and agencies calculated to advance the sciences and liberal arts.

The people clearly desire that a common educational opportunity be afforded to them by their government. This article is important as much for what it does not say as for what it says. It does not grant to the Legislature the power or authority to manage the educational system. General supervision is vested under

Article 7, Section 14, discussed later.

Article 3, Section 27. Special and local laws prohibited.

The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say: For granting divorces; laying out, opening, altering or working roads or highways; vacating roads, town plats, streets, alleys or public grounds; locating or changing county seats; regulating county or township affairs; incorporation of cities, towns or villages; or changing or amending the charters of any cities, towns or villages; regulating the practice in courts of justice; regulating the jurisdiction and duties of justices of the peace, police magistrates or constables; changing the rules of evidence in any trial or inquiry; providing for changes of venue in civil or criminal cases; declaring any person of age; for limitation of civil actions; giving effect to any informal or invalid deeds; summoning or impaneling grand or petit juries; providing for the management of common schools; regulating the rate of interest on money; the opening or conducting of any election or designating the place of voting; the sale or mortgage of real estate belonging to minors or others under disability; chartering or licensing ferries or bridges or toll roads; chartering banks, insurance companies and loan and trust companies; remitting fines, penalties or forfeitures;

13 creating[,] increasing, or decreasing fees, percentages or allowances of public officers; changing the law of descent; granting to any corporation, association or individual, the right to lay down railroad tracks, or any special or exclusive privilege, immunity or franchise whatever, or amending existing charter for such purpose; for punishment of crimes; changing the names of persons or places; for the assessment or collection of taxes; affecting estates of deceased persons, minors or others under legal disabilities; extending the time for the collection of taxes; refunding money paid into the state treasury, relinquishing or extinguishing, in whole or part, the indebtedness, liabilities or obligation of any corporation or person to this state or to any municipal corporation therein; exempting property from taxation; restoring to citizenship persons convicted of infamous crimes; authorizing the creation, extension or impairing of liens; creating offices or prescribing the powers or duties of officers in counties, cities, townships or school districts; or authorizing the adoption or legitimation of children. In all other cases where a general law can be made applicable no special law shall be enacted. (Emphasis added).

This provision contains constitutional concepts that must be reconciled with the actions of the 2013 Legislature. It specifically denies the Legislature the power to enact laws: “providing for the management of the common schools” and it restricts the Legislature from “creating offices or prescribing the powers or duties of officers in counties, cities, townships or school districts.” The overarching concern of this article as it pertains to education is to restrict the Legislature from management of the common school system and from prescribing the powers of local school officers. Every educational enactment must be read with this prohibition in mind.

14 Article 6, Section 16. When officers to hold over; suspension of officers.

Every person holding any civil office under the state or any municipality therein shall, unless removed according to law, exercise the duties of such office until his successor is duly qualified, but this shall not apply to members of the legislature, nor to members of any board or assembly, two or more of whom are elected at the same time. The legislature may by law provide for suspending any officer in his functions, pending impeachment or prosecution for misconduct in office.

This article anticipates that a state officer shall continue to hold her powers

“unless removed according to law.” Implicit within that concept is the presumption that the elected officials will represent the people in dealing with other branches of government.

Article 7, Section 1. Legislature to provide for public schools.

The legislature shall provide for the establishment and maintenance of a complete and uniform system of public instruction, embracing free elementary schools of every needed kind and grade, a university with such technical and professional departments as the public good may require and the means of the state allow, and such other institutions as may be necessary.

Article 7, Section 4. Restriction in use of revenues.

All money, stocks, bonds, lands and other property belonging to a county school fund, except such moneys and property as may be provided by law for current use in aid of public schools, shall belong to and be invested by the several counties as a county public school fund, in such manner as the legislature shall by law provide, the income of which shall be appropriated exclusively to the use and support of free public schools in the several counties of the state.

15 Article 7, Section 6. State to keep school funds; investment.

All funds belonging to the state for public school purposes, the interest and income of which only are to be used, shall be deemed trust funds in the care of the state, which shall keep them for the exclusive benefit of the public schools. The legislature shall provide by law for the investment of such trust funds.

Article 7, Section 7. Application of school funds.

The income arising from the funds mentioned in the preceding section, together with all the rents of the unsold school lands and such other means as the legislature may provide, shall be exclusively applied to the support of free schools in every county in the state.

Article 7, Section 9. Taxation for schools.

The Legislature shall make such further provision by taxation or otherwise, as with the income arising from the general school fund will create and maintain a thorough and efficient system of public schools, adequate to the proper instruction of all youth of the state, between the ages of six and twenty-one years, free of charge; and in view of such provision so made, the legislature shall require that every child of sufficient physical and mental ability shall attend a public school during the period between six and eighteen years for a time equivalent to three years, unless educated by other means.

These five sections are treated together as they demonstrate both the nature and limit of legislative responsibilities for education. Providing for establishment and maintenance of schools speaks (1) to ensuring that adequate financial resources are provided for public schools; and (2) that a uniform system of public education should be created. These articles also anticipate that the Legislature will enact tax provisions that “provide” for the schools, and “create and maintain” schools “adequate to the proper instruction of all youth of the state.” An

16 expectation exists for widespread participation in schools that is the basis for compulsory attendance laws.

These sections clearly limit themselves to how state raised school funds shall be appropriated “exclusively to the use and support,” “shall keep them for the exclusive benefit” and “exclusively applied to the support” of the schools. It reinforces how the Legislature shall spend school funds and, again, does not suggest the Legislature has a role to play in management or supervision of schools other than the role outlined in Article 7, section 14, discussed below.

Article 7, Section 11. Textbooks.

Neither the legislature nor the superintendent of public instruction shall have power to prescribe text books to be used in the public schools.

When adopting the Constitution, the people of the state made it clear that the selection of textbooks, and thus the content to which their children would be exposed, would remain a local decision. Accordingly, even the selection of textbook materials was prohibited from legislative reach.

Article 7, Section 14. Supervision of schools entrusted to state superintendent of public instruction.

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.

17 This foundational article describes how general supervision is to be provided

– by the Superintendent with her duties expanded (not proscribed,3 only prescribed4) by the Legislature. For obvious reasons, this section receives more thorough treatment elsewhere in this brief but the careful selection of words refutes the removal of authority from the Superintendent (proscribe) and supports the proposition that the Legislature should work with the Superintendent beyond the general supervision granted to the office by the people of the state.

Article 21, Section 28. Legislature to provide for public schools.

The legislature shall make laws for the establishment and maintenance of systems of public schools which shall be open to all the children of the state and free from sectarian control.

The final article in the Wyoming Constitution is similar to Article 1, Section

7. Importantly, it, too, addresses the duty of the Legislature to make laws for the establishment and maintenance, but not for general management, of the schools.

3 Proscribe: 2. To condemn or forbid as harmful or unlawful: prohibit. Merriam-Webster’s Collegiate Dictionary (11th Ed.), p. 997.

4 Prescribe: vt 1a. to lay down as a guide, direction, or rule of action; ordain; 1b to specify with authority. 2. to designate or order the use of as a remedy.

Meriam-Webster’s Collegiate Dictionary (11th Ed) at 981.

18 Senate Enrolled Act 0001 Violates Wyoming Constitution Article 7, Section 14.

A. SEA0001 Violates The Plain and Unambiguous Language of Article 7, Section 14 of The Wyoming Constitution.

This Court, on numerous occasions, has said that in construing the Wyoming

Constitution, the Court follows the same rules that govern the interpretation of a statute, and that the fundamental purpose is to ascertain the intent of the Framers.

Dir. of Office of State Lands & Invs. v. Merbanco, Inc., 2003 WY 73, ¶ 33, 70 P.3d

241, 252 (Wyo. 2003). If the language is plain and unambiguous, there is no need for construction and the Court will presume the Framers intended what was plainly expressed. Id.

The words used in Article 7, Section 14 exclusively place the “general supervision” of the public schools in the Superintendent of Public Instruction and no other individual. The Wyoming Constitution does not vest general supervision of the public schools in the Governor, or the Legislature, or, as in the case of

SEA0001, in an unelected director.

(i) Textual Analysis of Article 7, Section 14:

Article 7, Section 14 states “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.”

19 As used in Article 7, Section 14, the words “general supervision” were chosen with deliberation, and were not words of limitation. The phrase “as prescribed by law” was not intended to grant the Legislature the ability to transfer the constitutional grant of “general supervision” away from the Superintendent, but rather, to allow for direction, definition, guidance, and funding. The use of one simple word makes all the difference in understanding the key constitutional provision. Article 7, Section 14 states that the general supervision of the public schools shall be entrusted to the Superintendent of Public Instruction, “whose powers and duties shall be prescribed by law.” (Emphasis added.) The importance of the possessive pronoun “whose” is critical.

The word “whose” is possessive, as belonging to the person named.

Defined, it is the “one belonging to what person.”5 “Whose” as the pronoun, cannot be separated from its antecedent noun—here, the Superintendent of Public

Instruction. Thus, powers and duties, as prescribed by law, can belong only to the

Superintendent of Public Instruction and are not entrusted to the Governor, the

Legislature, or a director of the Department of Education.

The word preceding Superintendent is “to”—a word of exclusion that leads to identifying the Superintendent of Public Instruction. The words “shall,” “to,”

“Superintendent of Public Instruction,” and “whose” all are words of exclusion,

5 The Random House Dictionary of the English Language (1966) at pg. 1631.

20 defining who holds the power of general supervision and who shall exclusively be responsible for carrying out prescribed duties.

The State argues that the Legislature can expand or contract the powers of the Superintendent. In part, this is correct. The Legislature can expand the duties of the Superintendent, and it can eliminate duties to a level that does not threaten the Superintendent’s “general supervision.” However, “prescribing” the

Superintendent’s duties does not equate with simply transferring those duties to anyone other than the Superintendent, nor can the Legislature, by “proscribing” those duties render meaningless the words “general supervision.”

The constitutional balance of power finds that the Superintendent, and only the Superintendent, shall be entrusted with the general supervision of the public schools. Had the delegates to the 1889 constitutional convention wanted to give those powers to someone else, they would have done so. Instead, the Framers trusted the voters with selecting the Superintendent, and in doing so, barred the

Legislature, by itself, from modifying the constitutionally prescribed balance of powers.

As reflected by the constitutional debates of the Wyoming Constitution, the words used matched exactly with what the Framers intended.

21 (ii) The First Half of Article 7, Section 14.

Taking the first half of the sentence of Article 7, Section 14 of the Wyoming

Constitution: “The general supervision of the public schools shall be entrusted to the superintendent of public instruction,” the words used show an intent to confer the whole work of education in the Superintendent of Public Instruction.

(Emphasis added).

The second word of Article 7, Section 14 is “general”—i.e., “The general supervision . . . .” General, as defined by Black’s Law Dictionary (5th Edition,

1979) “Universal or unbounded, as opposed to limited; . . .comprehending the whole or directed to the whole, as distinguished from anything applying to or designed for a portion only.” Id. at 614. Mr. Hoyt, the Chairman of Education in

1889, used the same description when he said that the Superintendent shall

“oversee the whole work of education in this state.” (Emphasis added). Journals of Constitutional Debates of Wyoming, at 465. (Emphasis added).

The third word used is “supervision:” “The general supervision of the public schools . . . .” Supervision is defined in Black’s Law Dictionary as "An act of occupation of supervising." Black’s, 4th Ed. (1951) at 1607. Supervise means

"to have general oversight over, to superintend or inspect.” Id. The overlapping of the definitions of “supervise” with “superintend” is apparent: Superintend means

“To have charge and direction of; to direct the course and oversee the details; to

22 regulate with authority; to manage; to oversee with the power of direction; to take care of with authority.” Id. at 1606. Superintendent, the noun, is defined by

Black’s as: “One who superintends or has the oversight and charge of something with the power of direction; a manager.” Id. (Emphasis added).

The constitutional provision states that the general supervision of the public schools “shall” be entrusted to the Superintendent of Public Instruction. Shall-

"As used in statutes, contracts or the like, this word is generally imperative or mandatory . . . a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation...excluding the idea of discretion. . . .” Id., at 1541. (Emphasis added).

Next, the Framers of the Wyoming Constitution used the word “entrusted” when indicating that the general supervision of the public schools was to be placed in the Superintendent of Public Instruction. Entrusted has a particularized meaning: “to deliver in something in trust to.” (www.merriam- webster.com/dictionary/entrusted). The general supervision is entrusted “to” the

Superintendent of Public Instruction. To “is ordinarily a word of exclusion,” (Id., at 1658) meaning placed in no other, including a legislative body. (Emphasis added).

The title given to the constitutionally established office holder is also reflective of intent and meaning.

23 (iii) The Second Half of Article 7, Section 14, “. . . whose powers and duties shall be prescribed by law.”

The proponents of the law point to the words “prescribed by law” as giving unlimited authority to the Legislature, to do whatever it deems necessary or appropriate regarding education. A textual analysis does not support this reading.

Such a reading would render the first half of the sentence meaningless. The words

“the,” “general,” “supervision,” “shall,” “entrusted,” “to,” “the,” “superintendent of public instruction,” have clear meaning and cannot be read out of the

Constitution or be read to be superfluous. As the Wyoming Supreme Court stated in Geringer v. Bebout, 10 P.3d 514 (Wyo. 2000):

Our cases explain that every statement in the constitution must be interpreted in light of the entire document, rather than as a series of sequential pronouncements, and that the constitution should not be interpreted to render any portion of it meaningless, with all portions of it read in pari marteria and every word, clause and sentence considered so that no part will be inoperative or superfluous.

Id., at 520.

According to Black’s, the word “prescribe” means to “lay down authoritatively as a guide, direction, or rule. . . .” (Black’s, at 1345). As the need for public schools evolved, the Legislature was given the authority to refine the details of what would was needed in education. The second half of the sentence was not meant to allow the Legislature to do away with the Superintendent, replace the Superintendent, or narrow the duties of the Superintendent to a ministerial role.

24 Rather, it was meant to allow the Legislature to guide the Superintendent’s work in general supervision.

Further, the word “whose” is possessive—as belonging only to the

Superintendent. While the Legislature may expand or contract the duties of the

Superintendent, it cannot eliminate the Superintendent’s general supervision of the public schools or, as applicable here, transfer those duties exclusively vested in the

Superintendent to an unelected third party.

From the textual analysis, the words used by the Framers of the Wyoming

Constitution show intent to create an office having broad influence and control over education. The “prescribed by law” language simply means the duties would be elucidated as the state progressed in refining its educational system, not giving authority to the Legislature to sweep away the duties of the office and transfer those duties to the Governor.

(a) The Framers’ Intent

If any ambiguity could be found in the words used in Article 7, Section 14, that ambiguity would be resolved by the debates of the Wyoming Constitution.

The words used in the debates envisioned a Superintendent with authority over the

“whole” of education, and not a trivial ceremonial role.

25 Taken from the Journals of the Constitutional Debates, the following is a recitation of the constitutional debates in the establishment of the constitutional office of Superintendent of Public Instruction:

Mr. Coffeen stated, without rebuttal:

I do not believe in the first place in making the president of the university ex-officio superintendent. The superintendent ought to be elected and most carefully selected, and his office should be at the seat of government, at the Capitol.

Journals of Constitutional Debate, at 464.

Mr. Hoyt, Chairman of the Education Committee then made the proposal that led to the language contained in Article 7, Section 14 of the Wyoming

Constitution. These proposals went without challenge:

 He proposed “that the state superintendent of public instruction shall be a member of the board of public lands,” Id., at 465.

 "He will have to do with the apportionment of the funds to the different counties, he will have a heavy correspondence with all parts of the state . . . it will be his duty to travel all over the state, to visit every county, to attend the institutes as they may hold their meetings . . . .” Id.

 The Superintendent shall “oversee the whole work of education in this state.” Id. (Emphasis added).

 That “he would be a member of the state board of health.” Id.

 That he will "promote in a general way education in this state. He will therefore be the head of education in this state.” Id. (Emphasis added).

26 Further deliberations reflect an intention to refrain from empowering the

Governor with the control and appointment of the Superintendent:

Mr. Hopkins- "the president of the university and superintendent of public instruction should be members of this board of trustees"

Mr. Brown- "I would suggest an objection to that. As this will stand the governor appoints three trustees. Now if the president and superintendent of schools are to be made trustees, they would have to be appointed by the governor, and we don't want to put the control in the hands of the governor.”

Id., at 744.

The plain and unambiguous language of Article 7, Section 14, coupled with the Framers’ debate about the Superintendent’s role, make clear that general supervision of public schools is exclusively vested in the Superintendent and may not be transferred to any other individual absent a constitutional amendment supported by the electorate.

Appellants contend that SEA0001 removed from the Superintendent all critical aspects of general supervision. She was allowed to retain her presence on the constitutionally created boards and commissions and certain ministerial duties with respect to toxic waste, head injury prevention, seclusion and restraint and teacher of the year awards. She is also allowed to conduct up to five conferences per year and to develop a report on the status of schools that might recommend professional development.

27 Although Appellees may suggest this list of responsibilities constitutes

“general supervision,” it does not. The office no longer retains meaningful ability to manage or control data collection; to distribute state funds to local districts; to develop special programs for children with special needs; to establish, maintain and monitor content and performance standards of schools and students; to interact with federal agencies or national organizations; to supervise the development and administration of assessments of student performance; or to supervise the work performed in establishing career and technical readiness of students, to name but a few of the functions removed from the Superintendent by SEA0001.

Removal of the elected Superintendent’s general supervision over education might be best illustrated by examining similar constitutional language related to the judiciary. Article 5, Section 2 of the Wyoming Constitution provides the

Wyoming Supreme Court with “general superintending control over all inferior courts, under such rules and regulations as may be prescribed by law.” To put into perspective how the world of public instruction was changed by SEA0001, it would be comparable to the Legislature finding that it needed to expedite the operation of inferior courts and, therefore, created a “director of courts” appointed by the Governor. This director would report to the Governor and would manage and control all aspects of the rules of civil and criminal procedure, rules of evidence, the existence and operation of presumptions and burdens of proof,

28 appellate rules and procedure, the use of (or prohibition of) electronic filing systems, operation of law libraries, courts and clerks, and practice before the courts by attorneys as well as the governance of the legal profession and ethical rules governing attorneys.

Just as Appellees will likely assert that the Superintendent remains vested with “general supervision” of public schools, the Legislature could similarly suggest that the Supreme Court retained general supervisory control over inferior courts because of its responsibility to decide appeals; this, despite its inability to supervise the many elements of the inferior courts, the rules of practice, governance of the legal profession and control over its own operations. This is precisely what has occurred to the Superintendent’s “general supervision of the public schools.”

Next, imagine that the Legislature directed that the Supreme Court building be dedicated to the administration of courts, reduced the Court’s staff to seven administrative assistants, and relocated the justices and their staff to a hallway in the Barrett Building in the State Archives section previously used for microfiche of

State records.

This analogy exposes the logical extension of unchecked legislative power and the effect of the Legislature and Governor’s unconstitutional actions in passage of SEA0001. Appellees assert that the Superintendent’s statutory activities

29 prescribed by the Legislature are subject to removal by the Legislature. Yet, the analogy involving the judiciary reveals the flaw of this reasoning. That is, it borders on the absurd to suggest that the Framers of the Wyoming Constitution could have anticipated the complexity of courts, the advancement of filing systems, the development of research tools, the complexity of rules governing conduct of the courts and the bar, or the size and complexity of disputes. For the Framers to overcome their inability to predict the powers, duties, authorities and privileges that would be required to establish and maintain inferior courts, it is readily apparent why they vested general supervision of the inferior courts in the Supreme

Court. The Framers could have attempted to enumerate the powers of the Supreme

Court and could have left to future generations the sequential amendments of the constitution necessary to incorporate new technology, newly developed standards or other new challenges. Instead, the Framers elected to entrust the Supreme Court with the general superintending control over the system. This holds equally true for the Superintendent of Public Instruction.

Appellees will insist that the “prescribed by law” language salvages this usurpation of the Superintendent’s authority. However, Appellants caution that the

“prescribed by law” clause should not become a mechanism for the legislative body to convert general superintendency to its own purposes that it then can freely transfer to another person, body, or agency. This clause was drafted by the

30 Framers with the expectation that it would allow the development of clarity fitting the needs as the courts and educational systems developed. It is the Legislature’s prerogative to guide the operation of government, but not to remove the general supervisory power from the constitutionally vested holder of those powers. If, by merely naming or defining of a power or duty, converts that activity into something other than general supervision, then there is no limit on the authority of the Legislature – over the Superintendent or the Supreme Court. The general supervision clause becomes a nullity.

Senate Enrolled Act 0001 Violates Wyoming Constitution Article I, Section 1 And Section 20.

The Wyoming Constitution leaves no doubt that the authority of government rests first, foremost, and always in the people. In our democracy, the people most commonly exercise these rights through the ballot. “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”

Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed2d 506 (1964).

In the 2010 General Election, Appellants and the general electorate voted for the office of Superintendent with the real and reasonable expectation that their

31 decision would be respected and served, not thwarted, by the other branches of government. (Attach.14, at 8-9) Moreover, they did so with the expectation that the Superintendent would generally supervise education in Wyoming for the duration of the four-year elected term. Id., at 10. SEA0001’s unraveling of

Appellants’ votes compromises and infringes upon the power of the ballot and the inalienable and indefeasible right and power of the people to choose their governance. The rationale of the Maxfield decision with respect to Article 1,

Section 1 helps illustrate the point that when the governed wish to alter their government such alteration “would be adopted only through constitutionally established means”. Maxfield at ¶27, and 901. “The means agreed upon in the constitution is the amendment process.” Id.

Maxfield provides further guidance regarding the Legislature’s authority that

“. . . the constitution limits legislative power and authorizes the enactment of only such laws as are not expressly or inferentially prohibited by the constitution.” Id. at

¶28. The Legislature must defer to the express constitutional language that vests general supervision in the Superintendent, to the exclusion of all others, and who exercises that supervision as the chief administrative officer of the Department of

Education.

Legislative usurpation of electoral power is not a new phenomenon, and seldom meets with judicial approval. For example, in a set of cases dealing

32 primarily with the modification of duties of elected county officials, the California

Supreme Court noted the importance of the electorate’s franchise. Anderson v.

Superior Court, 11 Cal 4th 1152, 1161 (1995). In discussing two apparently contradictory, “antique” cases, Attorney-General v. Squires (1859) 14 Cal 12 and

People v. Kelsey (1868) 34 Cal. 470, the California Supreme Court in Anderson, supra, noted:

Kelsey, supra, 34 Cal. 470, is not inconsistent with Squires, supra, 14 Cal. 12, and, in fact, the two cases are harmonious. As noted above, in Squires, supra, we permitted transfer, during the county sheriff's term of office, of the duty to license foreign miners. We reasoned that the transfer was proper because it did not involve delegation of the "necessary duties of the Tax Collector — as [would collection of] a tax on land or personal property." (Squires, supra, 14 Cal. at p. 18.) By contrast, in Kelsey, supra, 34 Cal. 470, the Legislature attempted to transfer the "necessary duties" of tax collector — the entire office — from one person who was elected "in contemplation" of performing such duties, to another officer whom the voters did not contemplate would fill the office of tax collector. Accordingly, the purported transfer in Kelsey, supra, was illegal, because, unlike Squires, supra, 14 Cal. 12, it violated the constitutional provision (Cal. Const. of 1849, art. XI, § 13) requiring election of tax collectors.

Anderson, supra at 1158, similarly, Tully v. Edgar, 171 Ill.2d 297, 664

N.E.2d 43, 215 Ill.Dec. 646, 109 Ed. Law Rep. 315 (1996).

California thus concluded that the transfer of “necessary duties” from “one person who was elected “in contemplation” of performing such duties, to another person whom the voters did not contemplate would fill the office. . . .” is sufficient basis for striking the legislative action. This is precisely the evil presented by

33 SEA0001, that the necessary duties to engage with Wyoming’s state-wide education system as part of general supervision of public education have been removed by legislative fiat from the duly elected Superintendent of Public

Instruction in favor of the Governor (or his appointee) who the voters did not contemplate would fill the office of supervision of the Wyoming education system.

(Attach. 14, at 41).

The rationale of the California courts is bolstered by the Wyoming

Constitution’s concern for protection of the power of the people, and its limitations on the power of the Legislature found throughout the Journal of the Constitutional

Convention and in the document itself. In reviewing the Constitutional

Convention, Phil Roberts of the University of Wyoming, Department of History noted the pervasive distrust of legislative power:

In terms of governmental structure, the delegates reflected the 19th century distrust of legislative power. This view is particularly apparent as to fiscal matters, but many of the 37 sections in the Declaration of Rights article places limits on legislative power.

Likewise, the constitution explicitly states that the "executive power" of the state "shall be vested" in the governor and he "shall take care that the law of be faithfully executed." These seemingly broad powers, however, were substantially limited. Most notable was creation of numerous boards to administer many of the important state functions. The boards were made up of the governor acting with the other four statewide elected officials. The constitution also provided for appointments to various other boards to be made for terms longer than that of the governor. For example, University of Wyoming trustees are appointed for six-year terms. The Constitution also allowed for the various boards and commissions to govern specific

34 state agencies and even appoint the directors, taking that appointment power out of the governor's hands. (This existed for more than a century until government reorganization in the 1990s made many of these formerly governing boards advisory only). (internal citations omitted)

The Wyoming Constitutional Convention and Adoption of Wyoming’s Constitution,

1889, and the Aftermath, http://uwacadweb.uwyo.edu/robertshistory/wyoming_constitutional.htm.

The limitations inherent in the constitution on legislative authority over education are discussed above. Conversely, the Superintendent is “entrusted” with the general supervision of the public schools as her powers and duties might be prescribed (not proscribed) by law. Appellant voters and the Wyoming electorate were entitled to rely upon the constitutional provisions that should have protected the sanctity of their votes from a Legislature that invaded the province of the voters to alter, remove or abolish the Superintendent’s governing authority through the ballot.

SEA0001 essentially changes the 2010 General Election’s outcome with respect to both the offices of Superintendent and Governor. That is, while the election outcome may have resulted in the election of the same individuals to these offices, the jobs for which they were elected have radically changed in the middle of both terms. The Superintendent, who was elected to generally supervise education for a four year term, has now been relegated to carry out simply

35 ministerial functions with a fraction of the budget and staff originally allocated to the office. Conversely, the Governor, through the appointment power that

SEA0001 provides to him, now has a $1.8 billion dollar appropriation to manage and an entire education department; despite the fact the voters were never provided an opportunity to vet his qualifications or philosophies in having complete control over education.

By silencing Appellant’s voice at the ballot box, SEA0001 further violated

Appellants’ rights of free speech and restricted the will and intent of the electorate by overruling their political expression exercised at the ballot box. The Legislature could have followed constitutionally prescribed means for altering Wyoming’s political system. The constitutional amendment process would have lead back to the voters. Instead, the Legislature chose simply to replace an elected constitutional officer with an unelected bureaucrat. The Wyoming electorate’s right to freely speak through the mechanism of the ballot is protected by the

Wyoming Constitution:

Article 1, Section 20. Freedom of speech and press; libel; truth a defense.

Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right; and in all trials for libel, both civil and criminal, the truth, when published with good intent and [for] justifiable ends, shall be a sufficient defense, the jury having the right to determine the facts and the law, under direction of the court.

36 Article 1, Section 27. Elections free and equal

Elections shall be open, free and equal, and no power, civil or military, shall at any time interfere to prevent an untrammeled exercise of the right of suffrage.

“The right to vote is a fundamental right entitled to the strict protection of the courts.” Murphy v. State Canvassing Bd., 12 P.3d 677, 680 (Wyo. 2000.)

(citing Brimmer v. Thompson, 521 P.2d 574, 578 (Wyo.1974). SEA0001 unconstitutionally silenced the Appellants’ electoral voice: while the individuals elected as Superintendent and Governor still hold those offices following enactment of SEA0001, the legislation radically changes the job descriptions of the office holders elected by Wyoming voters and removes the duties of the

Superintendent. The Legislature and Governor, through their enactment of

SEA0001, have silenced and replaced the voters’ free speech with their own will.

Moreover, the immediate enactment of SEA0001 improperly interferes with the rights of the electoral franchise in that it limits the Superintendent’s general supervision of Wyoming schools to a two-year term rather than the four-year term for which she was elected. Article 1, Section 27 states that “. . . no power, civil or military, shall at any time interfere to prevent an untrammeled exercise of the right of suffrage.” This provision makes clear that even the military is restricted from interfering with or preventing the electorate’s will from taking effect.

Legislation that alters the voters’ exercise of free speech two years after votes were

37 cast, but before the Superintendent and Governor have fulfilled the four-year terms of office performing the tasks for which they were elected, nullifies the electorate’s rights.

Appellants, Kerry and Clara Powers, as well as Superintendent Hill in her capacity as a Wyoming voter, are a reflection of the Wyoming electorate. Through constitutional convention and through the power of amendment, the Wyoming electorate has created a contract by which they choose to be governed. The paramount declaration within that contract, the Wyoming Constitution, is the very first declaration:

Article 1, Section 1. Power inherent in the people

This Court has discussed the internal consistency of the Constitution. The

Maxfield decision, which reviews Cathcart v. Meyers, 2004 WY 49, at ¶¶44, 45, 88

P.3d 1050, at 1067 (Wyo. 2004), emphasizes the importance of reading all

Constitutional provisions in pari materia and helps illustrate how SEA0001 has invaded the sacred province of the voter to alter, reform or abolish its governance

38 as the voter deems appropriate, not the Legislature or Governor. Maxfield at ¶¶27,

28, and 901. A pari materia analysis of the Constitution inescapably demonstrates that the Constitution limits the Legislature’s power and authority and prevents the transfer general supervision of Wyoming schools to the Governor.

(i) Article 1, Section 1. Power Inherent In the People

This article, the first article of the Constitution, vests ultimate authority for implementation of fundamental changes in government to the people, the governed. It reserves to the governed the ultimate authority to implement fundamental changes, and it implicitly denies the government all power and authority not granted to it. Both Cathcart and Maxfield acknowledge such fundamental changes occur only through the amendment process. Cathcart, 2004

WY 49 at ¶ 44, 88 P.3d at 1067; Maxfield, 2013 WY 14 at ¶ 27, 294 P.3d at 901.

The ballot is the mechanism for exercising the people’s sacred rights – election, amendment, referendum, recall, and many others. It is not surprising that the power of the ballot is considered among the most sacred of the rights reserved to the governed; that it not be infringed or denied is axiomatic.

(ii) Article 1, Section 23. Education

Article 1, Section 23 provides “The right of the citizens to opportunities for education should have practical recognition. The Legislature shall suitably encourage means and agencies calculated to advance the sciences and liberal arts.”

39 This article demonstrates the peoples’ desire that a common educational opportunity be afforded to them by their government. When read in para materia with Article 7, Section 14, it is clear the Legislature shall only prescribe, not proscribe, the general supervision of public schools. Moreover, the Wyoming electorate who voted for the Superintendent to generally supervise education are the only ones who may proscribe their elected Superintendent’s authority through constitutional amendment or election. Either way, the electorate, whose

“opportunities for education should have practical recognition” decides at ballot boxes, not by the legislative branch or by the Governor, how they wish to alter their Constitution.

(iii) Article 3, Section 27. Special and Local Laws Prohibited

The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say: For . . . providing for the management of common schools; . . . creating offices or prescribing the powers or duties of officers in counties, cities, townships or school districts; In all other cases where a general law can be made applicable no special law shall be enacted.

This Constitutional provision must be reconciled with the enactment of

SEA0001, which not only impacted management of public schools through the creation of an unelected officer subject to appointment, but did so immediately upon the Governor’s signature, abridging the elected Superintendent’s four year term in office before the ink on the legislation was dry.

40 SEA0001 specifically denies the Legislature the power to enact laws:

“providing for the management of the common schools” and it restricts “creating offices or prescribing the powers or duties of officers in counties, cities, townships or school districts.” The overarching concern of this article as it pertains to education is to restrict the Legislature from management of the common school system and from transferring powers to those for whom an unelected office is created as well as prescribing the powers of the local school officers. Every educational enactment must be read in the light of this prohibition.

This provision ensures that the whims and caprices of legislative leadership, or the hunger for additional power by a gubernatorial office holder, is curtailed by the electorate’s oversight. In the present case, Article 3, Section 27, limits the ability of those who seek to enact legislation that specifically impacts this

Superintendent’s ability to generally supervise education during the middle of her elected term, and transfers her authority to this Governor in the middle of both office-holders’ terms. It further ensures that other laws are not created, or this law simply repealed, when a Superintendent bends to the will of the Legislature or a superintendent more to the liking of a few powerful legislators takes office. The structure of education should not be dependent upon the ability of the Legislature to modify law for such special purposes. Any assertion that SEA0001 was enacted to fix a broken educational system is patently hollow when the legislation does not

41 address the system, but instead divests this Superintendent of her constitutional authority and transfers it to the Governor through his appointment of a newly created director charged with doing precisely the same tasks previously reserved to the Superintendent. If the Legislature may enact such special laws, there is no restraint upon the Legislature with respect to other constitutionally created offices within the state.

(iv) Article 6, Section 16. When Officers To Hold Over; Suspension Of Officers

This article anticipates that a state officer shall continue to hold her powers

“unless removed according to law.” The electorate expects their elected officials to exercise their duties as described in the constitution unless impeached. The

Legislature chose, by enacting SEA0001, to strip nearly all power and duty from the Superintendent -- a de facto impeachment, but did not afford her the due process required by the Constitution for removal from office. This offends not only the Superintendent’s right to due process, but the rule of law created by the electorate. Moreover, it quiets any future elected official who might speak

42 candidly and constructively engage the Legislature on behalf of the electorate. If

SEA0001 is constitutional, there is no end to the Legislature’s power to strip any other office holder of that individual’s constitutionally vested authority.

Consequently, the Legislature could exercise its dominion over all elected officials, as well as the judiciary. This is another example of the fundamental change for which the Framers of the constitution required a longer term perspective as embodied in the constitutional amendment process.

(v) Article 7, Section 1. Legislature to Provide For Public Schools

Black’s Law Dictionary (5th Ed., at 1102) defines “provide” as: “To make, procure, or furnish for future use, prepare. To supply: to afford; to contribute.”

Providing for establishment and maintenance of schools speaks (1) to ensuring adequate financial resources are provided for public schools; and (2) that a uniform system of public education should be created. It does not call upon the Legislature to provide for supervision or management of schools. To extend this clause into the realm of supervision and management is inconsistent with Article 7, Sections

11, 14 and 18 as discussed herein. Moreover, limiting this section to its proper purpose of providing a structure for public education and the resources needed for

43 the common schools is consistent with Article 7, Section 27, and Article 7,

Sections 4 and 6, among others.

(vi) Article 7, Section 4. Restriction in Use of Revenues; Article 7, Section 6. State to Keep School Funds; Investment. And Article 7, Section 7. Application of School Funds

Article 7, Section 4. Restriction in use of revenues

Article 7, Section 6. State to keep school funds; investment

Article 7, Section 7. Application of school funds

These sections, and the emboldened provisions, emphasize the constitutional limitations on how state raised school funds shall be appropriated for the public schools over which the Superintendent has exclusive general supervision. They

44 each reinforce how the State shall spend school funds and, refrain from even suggesting that the State has a role to play in management or supervision of schools other than the role outlined in Article 7, Section 14, as discussed below and throughout this brief.

Appellant anticipates Appellee will suggest that Washakie Sch. Dist. No. 1 v.

Herschler, 606 P.2d 310 (1980), provides for unlimited legislative powers over education. Washakie did not call for the assumption of power over education by the Legislature, but rather, as a case which limits the Legislature. Further it dealt strictly with the Legislature’s funding of schools throughout the state. Nowhere did the Wyoming Constitution grant plenary authority to the Legislature for the

Superintendent of schools.

(vii) Article 7, Section 9. Taxation for Schools

The legislature shall make such further provision by taxation or otherwise, as with the income arising from the general school fund will create and maintain a thorough and efficient system of public schools, adequate to the proper instruction of all youth of the state, between the ages of six and twenty-one years, free of charge; and in view of such provision so made, the legislature shall require that every child of sufficient physical and mental ability shall attend a public school during the period between six and eighteen years for a time equivalent to three years, unless educated by other means. (Emphasis added.)

Noteworthy as one of the articles permitting taxation, this article mandates that the State shall adopt taxes that further its duty to “provide” and will allow it to

“create and maintain” schools “adequate to the proper instruction of all youth of

45 the state.” It also describes the expectation of widespread participation in schools forming the basis for compulsory attendance laws. Again, the article does not provide for legislative management or supervision of the schools. The people reserved this to local control subject to general supervision by the Superintendent of Public Instruction.

(viii) Article 7, Section 11. Textbooks

Neither the legislature nor the superintendent of public instruction shall have power to prescribe text books to be used in the public schools.

At the time of the adoption of the Wyoming Constitution, educational systems were rather simple. The essential elements for a school were: a teacher, a suitable space, textbooks and classroom apparatus, assembled under the general supervision by the state superintendent and local supervision by local school officials. The content of the teaching was largely dictated by the textbooks adopted. The people of the state made it clear that the selection of textbooks and thus the content to which their children would be exposed, would remain a local decision.

(ix) Article 7, Section 14. Supervision Of Schools Entrusted To State Superintendent Of Public Instruction.

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.

46 This foundational article describes how general supervision is to be provided

– by the Superintendent with her duties expanded (not “proscribed,” only

“prescribed”). Prescription of the Superintendent’s powers and duties supports the proposition that the Legislature should guide or direct the actions of the

Superintendent is the general supervision granted to the office by the people of the state.

(x) Article 7, Section 18. Establishment of Institutions

Such charitable, reformatory and penal institutions as the claims of humanity and the public good may require, shall be established and supported by the state in such manner as the legislature may prescribe. They shall be supervised as prescribed by law.

The Framers were cognizant of how they could expand the Legislature’s power and authority to provide for supervision. The framer’s grant of limitless legislative authority for supervision of charitable, reformatory and penal institutions inversely corresponds to the framer’s deliberate omission of any blanket supervision entrusted to the Legislature over the public schools. This omission mirrors the concerns referenced in Cathcart and in Maxfield:

Clearly, the Framers of the state constitution knew and used the necessary language to establish term limits. That they did not use that language in Wyo. Const. art. 3, § 2, addressing the qualifications and term for legislators, is telling. Cathcart, ¶ 58, 88 P.3d at 1072.

Maxfield, 2013 WY 14, at ¶30, 294 P.3d 895, at 902 (Wyo. 2014).

47 The Framers knew they could place supervision of public schools within the province of the Legislature. They elected not to do so and, instead, expressly provided for local control of education and state-wide general supervision of schools through the elected Superintendent.

(xi) Article 21, Section 28. Legislature to Provide for Public Schools

The legislature shall make laws for the establishment and maintenance of systems of public schools which shall be open to all the children of the state and free from sectarian control.

The final article is similar to Article 1, Section 7. Importantly, it too addresses the duty of the Legislature to make laws for the establishment and maintenance, but not for the general management, of the schools. Again, the

Framers specifically and intentionally left management and supervision to the local school officials and reserved general supervisory responsibilities in the heads of the state-wide elected office of the Superintendent.

The pari materia analysis of these provisions makes clear that the

Legislature has an affirmative duty to provide for the establishment and maintenance of schools. It may even impose taxes if necessary for this purpose; thus, it is to provide funding for the maintenance of the schools it establishes. It may add to or define the general duties of supervision by the Superintendent.

However, neither Legislative, nor a Governor’s intrusion into the actual operation and supervision of schools is permitted by the Constitution. Moreover, the

48 Legislature’s wholesale removal of the Superintendent’s general supervision of schools and its transfer of that supervision to the Governor by the Constitution was never authorized. Indeed, the Constitution limits the Legislature’s role in education to expanding (prescribing) the general supervision exclusively granted to the Superintendent, not proscribing those duties, particularly in the middle of the

Superintendent’s elected term of office.

It is, therefore, reasonable for the citizens of the state to cast their ballot for the Superintendent with the absolute conviction and certainty that the

Superintendent so elected will exercise such powers and duties as are general in nature and as may be prescribed by law. This Court must act to protect the system created by the Framers by which the people of Wyoming have agreed to govern themselves. Fundamental changes to the constitutionally vested responsibilities of both the Superintendent and Governor can only occur through constitutional amendment, not legislative whim.

Senate Enrolled Act 0001 Violates Wyoming Constitution Article 2, Section 1.

A. Separation of Powers

The separation of powers provision of the Wyoming Constitution is found in

Article 2, Section 1:

The powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers

49 properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.

This Court said long ago, that “The sovereign power is in the people, and not in their rulers. The power of the executive and judicial departments is a grant, not a limitation, while the powers of the legislative department are absolute, except as restricted and limited by the constitution which the people have adopted.” State ex.

Rel. Richardson v. Henderson, 35 P. 517 (Wyo. 1894). Specifically regarding education, this Court has said:

While we recognize the legislative and executive branches of Wyoming’s state government have broad powers and responsibilities in providing the fundamental right of an education to our children, the powers of each branch of government are bound by the mandates and the constraints of the Wyoming Constitution. “If the executive and legislative branches fail to fulfill their duties in a constitutional manner, the Court too must accept its continuing constitutional responsibility . . . for overview . . . of compliance with the constitutional imperative.”

State v. Campbell County Sch. Dist., 32 P.3d 325, 2001 WY 90 (Wyo. 2001)

(quoting Unfulfilled Promises: School Finance Remedies and State Courts, 104

Harv. L. Rev. 1088 (1991).

SEA0001 violates the separation of powers doctrine in two ways. First, the restructuring of Wyoming’s education system is outside the scope of the

Legislature’s constitutional authority. Second, if upheld, SEA0001 would

50 diminish the requisite checks and balances by centralizing all power over education in the legislative branch.

B. The Washakie Case

Before discussing the separation of powers issues plaguing SEA0001, a brief discussion of the Washakie case is warranted. Appellees have previously cited language from Washakie County School Dist. No. 1 v. Hershler, 606 P.2d 310

(Wyo. 1980), claiming that SEA0001 was justified because the central obligations for all of education are vested in the Wyoming Legislature. (Att. 8, at 30-31).

This argument is apparently based on the following language from Washakie:

“…the Legislature has complete control of the state's school system in every respect.” Washakie, 606 P.2d at 320. This language must be read and understood in context.

Washakie was the first in a string of school finance cases that addressed concerns with the Legislature’s efforts at providing for (funding) schools. The quoted statement that the Legislature has “complete control” was made in the beginning of the opinion, before the Court began its analysis. When read in context, the statement is clearly intended to establish, at the outset, that the

Legislature (not the Court or anyone else) would be charged with crafting a solution to the funding problems identified in the opinion. Such a statement was nothing more than the Court’s recognition of the basic constitutional principle of

51 separation of powers (i.e. the legislative branch, not the Court, is responsible for designing the funding structure for schools in Wyoming).

The Court engaged in no further discussion or analysis of educational responsibilities. The Washakie opinion certainly did not mention, discuss, or even contemplate constitutional or other legal questions inherent in SEA0001. There was no discussion or analysis of whether the Legislature is vested with the authority to transfer the power and duties of an elected official to a non-elected gubernatorial appointee or whether the Legislature was constitutionally authorized to restructure education in the state.

Caution should be used when reading or relying upon dicta in Washakie to justify or support the Legislature’s actions in passing SEA0001.

C. The Legislature Acted Outside of its Constitutional Authority

The concept that the Legislature has total dominion over education is supported nowhere, expressly or inferentially, in the Wyoming Constitution. As previously discussed herein, the Framers expressly limited the Legislature’s role as one of “providing for” (funding) education and “prescribing” (defining) the duties of the superintendent. (See Article 7, Section 1; Article 21 Section 28; Article 7,

Section 14).

These constitutional powers give the Legislature significant and broad control, in many respects, over education. Thus, if the Legislature is concerned

52 with actions being taken, or policies being advanced by the Wyoming Department of Education, it can simply reduce funding. Similarly, the Legislature may require the Superintendent to fulfill specific reporting requirements related to the general supervision.

These explicit powers, however, represent the extent of the Legislature’s constitutional authority, responsibilities, and control over education. Nowhere does the Constitution grant of plenary authority over all things related to education.

To the contrary, the Framers specifically prohibited the Legislature from

“prescribing textbooks” or making any laws “providing for the management of common schools.” (See Wyo. Const., art. 7, §§ 7, 11; art. 3, § 27). Furthermore, the general supervision of schools is entrusted to, and is the responsibility of, the

Superintendent, not the Legislature. (See Wyo. Const. art. 7, § 14). Finally, the of governance structure of education is outside of the constitutionally prescribed powers of the Legislature, as the Framers were clear that this authority is entrusted to the people. (See Wyo. Const., art. 1, § 1).

The Legislature has encroached significantly on the functioning of the executive branch by transferring the powers and duties of an executive branch elected official to a non-elected appointee and reorganizing the governing structure of education without any supporting constitutional authority.

53 D. Checks and Balances

A system in which the Legislature has total control of education would be a system ripe with the potential for abuses and contrary to the system of checks and balances that existed in the education prior to SEA0001. Under that system, the

Wyoming Department of Education, headed by the Superintendent, carried out the general supervision, informed policy makers and carried out policy decisions of the

Legislature (Wyo. Const., art. 7 § 14; WYO. STAT. § 21-2-201 and 202), and the

Legislature considered and adopted policy and funded education (Wyo. Const., art.

7 § 1; art. 21 § 28). This structure allowed the executive and the legislative branches to carry out their distinct roles in an open, collaborative, and balanced manner.

These checks and balances are nullified if SEA0001 is upheld by this Court.

If this Court endorses SEA0001’s restructuring of Wyoming’s education system, the message that will follow from such a finding will be clear: all power over education rests in the one branch of government - the Legislature.

If the Legislature is authorized to make the sweeping changes to the governing structure of education at the highest level, without express constitutional support, will it likewise follow that the Legislature may also effect similar changes at the local level? What occurs when the Legislature becomes dissatisfied with the conduct of the governor-appointed director of the Wyoming Department of

54 Education or the Governor himself? Will the Legislature once again restructure education? If the Legislature has total control over education, as has been suggested, where are the checks and balances? How will any rigorous and candid debate occur if the Legislature can simply silence any dissenting voice?

Such a result is contrary to the separation of powers doctrine and would allow for and centralization and usurpation of power.

Senate Enrolled Act 0001 Violates Wyoming Constitution Article 3, Section 27.

A. Special Laws And Uniform Operation Of General Laws

SEA0001, or the “Hill Bill” as it has been described, removed

Superintendent Hill from her position as administrative head and chief executive officer of the Wyoming Department of Education and transferred most of the duties related to that office to an individual to be appointed by Governor Mead.

The bill took effect immediately upon becoming law.

SEA0001 violates the requirement of uniform operation of general laws, as set forth in Article 1, Section 34, and the special laws prohibition of Article 4,

Section 27. Specifically, SEA0001 improperly applies differently to the current superintendent and governor than it will to their similarly situated successors.

This Court recently described the constitutionally required uniform operation of general laws and the related prohibition of special laws:

55 A special law is a "law that pertains to and affects a particular case, person, place, or thing, as opposed to the general public." Black's Law Dictionary 963 (9th ed. 2009). In more detail, a special law has been described as follows:

Ordinarily, a statute is regarded as a "special law" if it does not have a uniform operation. A law is "special" if it operates upon and affects only a fraction of the persons or a portion of the property encompassed by a classification, granting privileges to some while denying them to others. Special legislation relates either to particular persons, places, or things, or to persons, places or things which, though not particularized, are separated by any method of selection from the whole class to which the law might, but for such legislation, be applied. Classifications for the purpose of legislation, under a state constitution's prohibition against special legislation, must be real and not illusive, and they cannot be based on distinctions without a substantial difference.

73 Am. Jur.2d Statutes § 4 (2001). By contrast, a "general law" is a law that meets the following description:

General laws are those operating uniformly throughout a state, which prescribe a rule of conduct upon citizens generally, and which operate with general uniform application throughout the state under the same circumstances and conditions. A law uniformly applying to a class of persons or things having a reasonable and just relationship to the regulated subject matter is a general law. Thus, for example, where a legislative method of providing aid has an equal impact on all members of a rationally defined class similarly situated, the law is a general law. .... Some state constitutions require that laws of a general nature must have uniform operation. General laws operate uniformly, not because they operate on every person in the state, but because every person brought under the law is affected by it in uniform fashion, and a legislature may exclude certain persons or things from the application of a general law. A general law does not lose its general law status so long as it operates uniformly upon subjects as they may exist in the state, applies uniformly within permissible classifications,

56 and operates universally throughout the state or so long as it relates to state function or instrumentality. However, a general law operates as an unreasonable classification, in violation of a uniformity clause, when it seeks to create artificial distinctions where no real distinction exists.

Id. at § 3.

[¶ 17] With relative consistency, this Court has for years treated article 3, section 27 as an equal protection provision, and we have interpreted it in conjunction with article 1, section 34, which proclaims that " [a]ll laws of a general nature shall have a uniform operation." See, e.g., Krenning v. Heart Mountain Irrigation Dist., 2009 WY 11, n.4, 200 P.3d 774, 784 n.4 (Wyo.2009); Bd. of County Comm'rs v. Geringer, 941 P.2d 742, 746 (Wyo.1997); Mills v. Reynolds,837 P.2d 48, 52-53 (Wyo.1992); White v. State, 784 P.2d 1313, 1316 (Wyo.1989); Hoem v. State, 756 P.2d 780, 781-82 (Wyo.1988); and Phillips v. ABC Builders, Inc., 611 P.2d 821, 826 (Wyo.1980).

Baessler v. Freier, 258 P.3d 720, 2011 WY 125 (Wyo. 2011).

SEA0001 is unconstitutional because it does not “operate uniformly” but instead “operates upon and affects only a fraction of the persons … encompassed by a classification.” Id. Although this law is written to apply to all governors and superintendents, it applies very differently to the current Superintendent and

Governor than it will to their successors. SEA0001 radically modifies the duties and responsibilities of the current Superintendent and Governor in the middle of their respective terms in office. Virtually all responsibility for statewide education transferred from the current Superintendent to the current Governor. The next

Governor will run for office knowing fully that he or she will be responsible for education. Also, the next Superintendent will run knowing fully that he or she will

57 be responsible for a few things tangentially related to education (e.g. concussions, disposal of toxic waste, and seclusion and restraint).

The last clause in Article 3, Section 27, states “In all of other cases where a general law can be made applicable no special law shall be enacted.” The fact that

SEA0001 became effective mid-term made it a special law. Had the law taken effect at the end of the terms of the current Governor and Superintendent, it would not have suffered from the problem of disparate treatment.

Even the facts surrounding the introduction and passage of SEA0001 demonstrate that its purpose was special (personal) and not general. Any justification for the bill which assaults its purpose was to remedy long-standing problems with the governance structure of education in the state is undamaged by the circumstances surrounding its passing. If this were true, it is not known why the bill was introduced, passed, enacted, and enforced with such haste. A piece of legislation of such significance would have been thoroughly and thoughtfully vetted. The complete overhaul of the education governance structure would have been the subject of deliberate consideration, multiple public hearings, and thorough research and analysis. Instead, this bill appeared on the first day of the 2013 session, moved through the Legislature in 15 days,6 and become the first bill signed into law. Even if the necessary vetting and analysis occurred behind closed

rd 6 SEA0001 was introduced on January 10, 2013. It passed 3 reading on January

25, 2013 and was signed by the governor three days later. The 15 days it was in the Legislature included weekends and a holiday.

58 doors, a general law would not have taken effect immediately. It would have provided for a transition period allowing the Superintendent and Governor to finish their respective terms carrying out the duties that they were elected to perform or at the very least, taken effect commensurate with the State’s fiscal year rotation on

July 1, 2013.

By its design and application, SEA0001 treats the current Governor and

Superintendent very differently than future governors and superintendents. As such, it does not have uniform operation on those to whom it applies. Moreover, a general law could have been made applicable and therefore this special law should not have been enacted. For these reasons, SEA0001 violates Article 3, Section 27. V. CONCLUSION

Senate Enrolled Act 001 is unconstitutional. It constitutes a fundamental change to Wyoming government that is proper only through the process of constitutional amendment. It violates the Constitution by transferring powers and duties of one elected official to another, or to a non-elected “director” and in so doing, violates the rights reserved to the citizens of the state who placed those duties and powers in the Superintendent of Public Instruction and who voted for the office of Superintendent and Governor in the general election. It operates to blur the separation of powers and is a special law prohibited by the Constitution.

This Court should answer the certified questions by instructing the District Court that the law is unconstitutional. Plaintiffs (Appellants) should be awarded the relief requested in their complaint.

59 RESPECTFULLY SUBMITTED this 17th day of May, 2013.

/s/ ANGELA C. DOUGHERTY Attorneys for Appellants

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Brief of Appellants was served electronically via the Wyoming Supreme Court C-Track Electronic Filing System this 17th day of May, 2013 upon the following parties:

Gregory Phillips Attorney General Wyoming Attorney General’s Office 123 State Capitol Cheyenne, Wyoming 82002

Peter Michael Chief Deputy Attorney General Wyoming Attorney General’s Office 123 State Capitol Cheyenne, Wyoming 82002

The original plus six copies were sent to the Wyoming Supreme Court via hand delivery this 717th day of May, 2013.

I have accepted the terms for e-filing and this document is an exact copy of the written document filed with the Clerk. This document is free from viruses.

I hereby certify that all required privacy redactions have been made and, with the exception of those redactions, every document submitted in digital form is an exact copy of the written document filed with the Clerk.

/s/ ANGELA C. DOUGHERTY