07/03/2013
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, ) ) Appellants, ) ) v. ) No. S-13-0052 ) STATE OF WYOMING and ) Matthew H. Mead, Governor, in his official ) capacity, ) ) Appellees. )
BRIEF OF APPELLEES
Angela C. Dougherty Gregory A. Phillips Dougherty Law Office, P.C. Wyoming Attorney General 1623 Central Avenue Cheyenne, WY 82003 Peter K. Michael (307) 432-4006 Chief Deputy Attorney General
ATTORNEY FOR APPELLANTS John G. Knepper Senior Assistant Attorney General 123 Capitol Building Cheyenne, WY 82002 (307) 777-7841
ATTORNEYS FOR APPELLEES
TABLE OF CONTENTS
TABLE OF CASES AND AUTHORITIES...... iv
STATEMENT OF THE ISSUES ...... 1
STATEMENT OF THE CASE ...... 2
I. Nature of the Case ...... 2
II. Course of Proceedings and Disposition Below ...... 4
III. Statement of the Facts ...... 4
A. The Origins of the Office of Superintendent and the Early Assignment of Duties to the Office by the Territorial and State Legislatures ...... 5
B. Reform of the Office of Superintendent in the Early 20th Century ...... 10
C. Legislative Changes to the Office of Superintendent and the Development of the Department of Education in the Second Half of the 20th Century ...... 14
D. The Office of Superintendent Today ...... 19
SUMMARY OF ARGUMENT ...... 21
ARGUMENT ...... 26
I. Standard of Review ...... 26
II. The Wyoming Constitution does not imbue the office of Superintendent with pervasive, inherent power over education in Wyoming...... 30
A. The text of the Constitution expressly envisions that the Legislature will dictate the powers and duties of the Superintendent...... 30
1. The phrase “as prescribed by law” means that the Legislature can decide what powers and duties the Superintendent will exercise...... 33
2. By its plain meaning, the first clause of Article 7, section 14 of the Constitution does not grant the Superintendent broad power over education in Wyoming...... 38
i B. Wyoming’s constitutional debates show that the Framers thought the Superintendent’s authority would be provided by statute...... 44
C. During the first twenty-five years after statehood, no Superintendent claimed to have been granted broad, inherent authority by the Constitution...... 48
D. The powers and duties that Superintendent Hill suggests are core powers of her office are recent grants of authority from the Legislature and not duties that Superintendents have historically exercised...... 49
E. Even were this Court to hold that the Constitution grants inherent authority to the office of Superintendent, the current statute preserves sufficient power so as to satisfy the Constitution...... 55
III. The Constitution’s guarantee that all power is inherent in the people and that they may alter their government does not prevent the Wyoming Legislature from using its authority to modify the powers of the Superintendent by statute...... 59
A. The Constitution specifically envisions that the Legislature can change the powers of the Superintendent by statute...... 59
B. The Constitution does not require that the Legislature delay any changes to the powers of the Superintendent until after the incumbent leaves office...... 61
IV. The Constitution expressly grants to the Legislature the authority to create the powers and duties of the Superintendent and the exercise of this authority does not violate the division of powers guaranteed by article 2, section 1 of the Wyoming Constitution...... 64
A. Separation of powers concerns cannot overcome the Constitution’s clear delegation of authority to the Legislature...... 64
B. Superintendent Hill’s understanding of the division of responsibility for education in Wyoming is directly contrary to this Court’s recent opinions.... 65
V. The Wyoming Legislature has not passed an impermissible “special law.” ...... 69
A. The Education Act is a generally applicable statute, and it is constitutional under this Court’s prior decisions...... 69
B. This Court has explicitly rejected Superintendent Hill’s argument that the “special law” limitations in the Wyoming Constitution reduce the Legislature’s authority over education...... 70
ii C. Superintendent Hill’s assertion that the Education Act is “personal” does not mean that the Legislature has enacted a “special law.” ...... 71
CONCLUSION ...... 73
iii
TABLE OF CASES AND AUTHORITIES
Cases
Application of Okla. Capitol Imp. Auth., 958 P.2d 759 (Okla. 1998) ...... 33
Atkinson v. State, Order, No. 09CVS006655 (N.C. Super. Ct. July 17, 2009) ...... 52
Baessler v. Freier, 2011 WY 125, 258 P.3d 720 (Wyo. 2011) ...... 39, 72
Billis v. State, 800 P.2d 401 (Wyo. 1990) ...... 27
Byington v. Fuller, 587 P.2d 636 (Wyo., 1978) ...... 37
Campbell Cnty. Sch. Dist. v. State, 907 P.2d 1238 (Wyo. 1995) ...... 6, 16, 66, 67, 71
Campbell Cnty. Sch. Dist. v. State, 2008 WY 2, 181 P.3d 43 (Wyo. 2008) ...... 55
Cathcart v. Meyer, 2004 WY 49, 88 P.3d 1050 (Wyo. 2004) ...... 26, 32
Dir. of the Office of State Lands and Invs. v. Merbanco, Inc., 2003 WY 73, 70 P.3d 241 (Wyo. 2003) ...... 28
Doles v. State, 994 P.2d 315 (Wyo. 1999) ...... 4
Dworkin v. L.F.P., Inc., 839 P.2d 903 (Wyo. 1992) ...... 4, 29, 68
Fletcher v. Peck, 10 U.S. 87 (1810) ...... 37
iv Hamlin v. Transcon. Lines, 701 P.2d 1139 (Wyo. 1985) ...... 42
Howard v. Cook, 83 P.2d 208 (Idaho 1938) ...... 33
In re Guardianship of MEO, 2006 WY 87, 138 P.3d 1145 (Wyo. 2006) ...... 57
Indep. Cmty. Bankers Ass’n of S.D. v. State ex. rel. Meierhenry, 346 N.W.2d 737 (S.D. 1984) ...... 60, 73
Krenning v. Heart Mountain Irrigation Dist., 2009 WY 11, 200 P.3d 774 (Wyo. 2009) ...... 26, 30
Langer v. Totten, 175 N.W. 563 (N. Dak. 1919) ...... 30, 31
Leyen v. Dunn, 461 S.W.2d 41 (Tenn. App. 1970) ...... 60
Marbury v. Madison, 5 U.S. 137 (1803) ...... 37
Mariano & Associates, P.C. v. Bd. of Cnty. Comm’rs of Sublette Cnty., 737 P.2d 323 (Wyo. 1987) ...... 37
Mau v. Stoner, 14 Wyo. 183, 83 P. 218 (Wyo. 1905) ...... passim
Miech v. Sheridan Cnty., 2002 WY 178, 59 P.3d 143 (Wyo. 2002) ...... 5
Pirie v. Kamps, 229 P.2d 927 (Wyo. 1951) ...... 69, 70
Redco Const. v. Profile Properties, LLC, 2012 WY 24, 271 P.3d 408 (Wyo. 2012) ...... 35, 57
Riedel v. Anderson, 2003 WY 70, 70 P.3d 223 (Wyo. 2003) ...... 43
v Saldana v. State, 846 P.2d 604 (Wyo. 1993) ...... 29
State ex rel. Schieck v. Hathaway, 493 P.2d 759 (Wyo. 1972) ...... 56
State ex rel. Wilson v. Weir, 79 P.2d 305 (Mont. 1938) ...... 33
State v. Campbell Cnty. Sch. Dist., 19 P.3d 518 (Wyo. 2001) ...... 67
State v. Campbell Cnty. Sch. Dist., 32 P.3d 325 (Wyo. 2001) ...... 67
State v. Heiner, 683 P.2d 629 (Wyo. 1984) ...... 35
Washakie Cnty. Sch. Dist. No. 1 v. Herschler, 606 P.2d 310 (Wyo. 1980) ...... 17, 42, 66
Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981 (1918) ...... 29
Zumwalt v. Super. Ct., 776 P.2d 247 (Cal. 1989) ...... 62 Statutes
1869 Wyo. Terr. Laws Ch. 7, Title 1, § 1 ...... 5
1869 Wyo. Terr. Laws Ch. 7, § 2 ...... 6, 18
1871 Wyo. Terr. Laws 104-05, § 1 ...... 6
1873 Wyo. Terr. Laws Ch. 58, § 1 ...... 7
1873 Wyo. Terr. Laws Ch. 58, § 2 ...... 7, 8, 57, 58
1873 Wyo. Terr. Laws Ch. 58, § 3 ...... 58
1915 Wyo. Sess. Laws Ch. 157, § 3 ...... 10
vi 1917 Wyo. Sess. Laws Ch. 120, § 1 ...... 11
1917 Wyo. Sess. Laws Ch. 120, § 4 ...... 55
1917 Wyo. Sess. Laws Ch. 120, § 18 ...... 11
1917 Wyo. Sess. Laws Ch. 120, § 26 ...... 18
1917 Wyo. Sess. Laws Ch. 120, § 41 ...... 11
1919 Wyo. Sess. Laws Ch. 127, § 1 ...... 12
919 Wyo. Sess. Laws Ch. 127, § 4 ...... 16
1919 Wyo. Sess. Laws Ch. 127, § 5 ...... 12
1919 Wyo. Sess. Laws Ch. 127, § 13...... 12
1919 Wyo. Sess. Laws Ch. 127, § 14 ...... 12
1919 Wyo. Sess. Laws Ch. 127, § 15 ...... 12
1919 Wyo. Sess. Laws Ch. 127, § 17 ...... 12
1919 Wyo. Sess. Laws Ch. 127, § 20...... 13
1921 Wyo. Sess. Laws Ch. 109, § 3 ...... 15, 50
1959 Wyo. Sess. Laws Ch. 109, § 3 ...... 18
1959 Wyo. Sess. Laws Ch. 109, § 7 ...... 15
1959 Wyo. Sess. Laws Ch. 109, § 8 ...... 15
1959 Wyo. Sess. Laws Ch. 109, § 10 ...... 15
1959 Wyo. Sess. Laws Ch. 49, § 2 ...... 15, 50
1969 Wyo. Sess. Laws Ch. 111, § 9 ...... 16, 54
1969 Wyo. Sess. Laws Ch. 111, § 10 ...... 16
1969 Wyo. Sess. Laws Ch. 111, § 11 ...... 16
vii
1969 Wyo. Sess. Laws Ch. 111, § 14(g) ...... 18
1987 Wyo. Sess. Laws Ch. 190, § 2 ...... 19, 51
1989 Wyo. Sess. Laws Ch. 183, § 1 ...... 50
1994 Wyo. Sess. Laws Ch. 17, § 1 ...... 12, 18, 50, 51
1998 Wyo. Sess. Laws Ch. 3, § 301 ...... 51
2003 Wyo. Sess. Laws Ch. 184, § 2 ...... 51
2006 Wyo. Sess. Laws Ch. 37, § 1 ...... 50
2011 Wyo. Sess. Laws Ch. 184, § 1 ...... 51
2013 Wyo. Sess. Laws Ch. 1, § 1 ...... 1, 17, 19, 20, 56, 57
2013 Wyo. Sess. Laws Ch. 1, § 2 ...... 58
Pub. L. No. 109-248, 120 Stat. 587 (2006) ...... 72
Wyo. Stat. Ann. § 11-34-102 ...... 19
Wyo. Stat. Ann. § 21-15-113 ...... 19
Wyo. Stat. Ann. § 21-2-201 ...... passim
Wyo. Stat. Ann. § 21-2-202 ...... 50, 51
Wyo. Stat. Ann. § 21-2-204 ...... 51
Wyo. Stat. Ann. § 21-2-304 ...... 51
Wyo. Stat. Ann. § 21-3-307 ...... 19, 58 Other Authorities
A Survey of Statutory Changes in North Carolina in 1941, 19 N.C. L. Rev. (1940-41) .. 52
Albert Coates, Amendments to the Constitution of North Carolina Proposed by the General Assembly, 1937-1957: Text and Commentary (1957) ...... 52, 53
viii Black’s Law Dictionary (4th ed. 1951) ...... 41, 43, 44
Black’s Law Dictionary (1891) ...... 36, 40, 41, 42
Chauncey A. Goodrich & Noah Porter, Webster’s Complete Dictionary of the English Language (1886) ...... 40, 41, 42, 43
Donald L. Painter & Robert H. Johnson, The Wyoming Education Code of 1969, 5 Land & Water L. Rev. (1970) ...... 16
George J. Bale, A History of the Development of Territorial Public Education in the State of Wyoming, 1869-1890 (1938) (unpublished M.A. thesis, University of Colorado) ..... 6
A.C. Monaghan & Katherine M. Cook, Educational Survey of Wyoming (1917) ...... 9, 10, 49, 57
J.O. Creager, Letter to the Chairman of the State Board of Education, IX School & Society (1919) ...... 13
John A. Bartholow, The Development of Public Elementary & Secondary Education in Wyoming: 1917-1945 at 41 (1969) (unpublished D.Ed. thesis, University of Wyoming) ...... 14, 15
Joint Legislative-Executive Efficiency Study Committee, A Study in State Government Efficiency (1989) ...... 17
Journal of the Wyoming House of Representatives (1919) ...... 11
Journals and Debates of the Constitutional Convention of the State of Wyoming (1893) ...... 45, 46, 47, 48
Management Audit Committee, State-Level Education Governance (2005) ...... 17
Parmelee, State of Wyoming Biennial Report of the Superintendent of Public Instruction (1898) ...... 49
Richard K. Prien, The Background of the Wyoming Constitution (1956) (unpublished M.A. thesis, University of Wyoming) ...... 31
Staff Audit Report of the State Board of Education (1985) ...... 17
Stewart Rapalje & Robert L. Lawrence, A Dictionary of American and English Law (first definition) (1888) ...... 40, 41
ix Terrence D. Fromong, The Development of Public Elementary and Secondary Education in Wyoming: 1869-1917 (1962) (unpublished Ph.D. thesis, University of Wyoming ...... 6, 7, 9, 10, 48, 49
W.L. Walls, Biennial Report of the Attorney General of Wyoming, 1917-1918 (1919) ... 13
Wyoming State Archives, Department of Education Administrative History, 2003, http://wyoarchives.state.wy.us/Archives/DIResults.aspx ?ID=26 (last visited June 19, 2013) ...... 15 Rules
Wyo. R. App. P. 11 ...... 4, 5
Wyo. R. of Prof. Conduct 3.3(a)(2) ...... 4 Constitutional Provisions
1971 N.C. Const, art. IX, § 4 ...... 53
N. Dak. Const., art. 3, § 83 ...... 31
Wyo. Const. art. 1, § 1 ...... 1, 3, 59, 23, 63
Wyo. Const. art. 1, § 20 ...... 1
Wyo. Const. art. 18, § 3 ...... 18, 19
Wyo. Const. art. 2, § 1 ...... 1, 24, 64
Wyo. Const. art. 21, § 3 ...... 8
Wyo. Const. art. 3, § 27 ...... 1, 25, 69, 70, 72
Wyo. Const. art. 4, § 12 ...... 30, 32
Wyo. Const. art. 4, § 13 ...... 44
Wyo. Const. art. 5, § 2 ...... 34, 35
Wyo. Const. art. 5, § 3 ...... 35
Wyo. Const. art. 6, § 16 ...... 68
x Wyo. Const. art 7, § 1 ...... 3, 8, 42
Wyo. Const. art. 7, § 9 ...... 10
Wyo. Const. art. 7, § 14 ...... passim
Wyo. Const. art. 7, § 17 ...... 47
Wyo. Const. art. 21, § 3 ...... 8
xi STATEMENT OF THE ISSUES
The Wyoming Legislature passed, and Governor Matthew H. Mead signed, Senate Enrolled Act No. 1, which alters the powers and duties of the Office of the State Superintendent of Public Instruction. This Court has accepted certification of the following questions of state constitutional law that the current Superintendent and two citizens posed in the Complaint they filed on the day the Act became law:
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 STATEMENT OF THE CASE
I. Nature of the Case
With Senate Enrolled Act No. 1 (the Education Act),1 the Wyoming Legislature and Governor Mead withdrew the authority from the Office of the State Superintendent of Public Instruction to act as the chief administrative officer of the Wyoming
Department of Education. The Act assigned this management responsibility to the newly created office of the Director of the Wyoming Department of Education, whose occupant, as a member of the executive branch, will be directly accountable to the Governor after confirmation by the Legislature.
The Appellants are current Superintendent Cindy Hill, who has brought this challenge in her individual and official capacities, and Kerry and Clara Powers, who have alleged they cast their secret ballots for Cindy Hill to be the State Superintendent of
Public Instruction in the 2010 general election. For ease of presentation, the State will refer to the Appellants collectively as Superintendent Hill in the singular.
Here, the Court has accepted four certified constitutional questions, each of which restates a claim in Superintendent Hill’s Complaint. The overarching question presented by all four claims is: To what extent, if any, does the Wyoming Constitution reserve certain powers and duties related to education, such as the role of chief administrative officer of the Wyoming Department of Education, to the office of Superintendent alone?
1 With the Governor’s signature, Senate Enrolled Act No. 1 has become 2013 Wyo. Sess.
Laws 1-25 (Ch. 1).
2 The first certified question asks this Court to interpret article 7, section 14, of the
Wyoming Constitution, which creates an office of Superintendent for the “general supervision of the public schools” but leaves to the Legislature the authority to prescribe what the Superintendent will do:
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.
Wyo. Const. art. 7, § 14. Answers to the other certified constitutional questions—on the reservation of power to the people, the division of powers among the three branches of state government, and the prohibition against special laws—all flow from the proper interpretation of article 7, section 14.
This facial challenge to the constitutionality of the Education Act presents the first case in which this Court will consider the relationship between the sections of the
Wyoming Constitution establishing the Legislature’s authority over public education, e.g., Wyo. Const. art. 7, § 1, and the provision that establishes the office of
Superintendent, Wyo. Const. art. 7, § 14.
To analyze these key provisions, this Court should consider not only the
Constitution’s text, but also the framers’ discussion of the Superintendent’s power and the broader history of Wyoming education. This Court should apply its precedents on both the role of the Legislature in education and the Legislature’s power to “prescribe[] by law” the authority of other state entities generally. Finally, to decide this facial challenge, this Court must evaluate the text of the Education Act to see if the Legislature
3 stayed within the bounds of its constitutional power to prescribe the Superintendent’s duties.
In all constitutional cases, and especially one of this magnitude, this Court demands from the parties “appropriate constitutional analysis, legal authority, or cogent argument,” and this expectation exceeds the baseline ethical requirement that parties must provide “legal authority in the controlling jurisdiction” no matter which party the authority favors. Compare Dworkin v. L.F.P., Inc., 839 P.2d 903, 909 (Wyo. 1992), with
Wyo. R. of Prof. Conduct 3.3(a)(2). This Court has refused to consider constitutional arguments that lack a “precise, analytically sound approach” to interpretation. Doles v.
State, 994 P.2d 315, 319 (Wyo. 1999) (quoting Dworkin, 839 P.2d at 909).
II. Course of Proceedings and Disposition Below
Superintendent Hill filed her Complaint for a declaratory judgment and injunction against Senate Enrolled Act No. 1 on the first day of the Act’s operation. The district court denied Superintendent Hill’s motion for a preliminary injunction and certified four questions of law to this Court under Wyo. R. App. P. 11. Superintendent Hill and the
State of Wyoming filed statements in support of this certification. This Court accepted certification on March 22, 2013, and Superintendent Hill filed her brief on May 17, 2013.
III. Statement of the Facts
The district court’s certification order includes the specific facts relevant to the
Court’s decision: The Appellants are Wyoming citizens and voters who supported the election of Cindy Hill as State Superintendent of Public Instruction for Wyoming, and
4 Superintendent Hill, who was elected to a four-year term in the 2010 general election.
Senate Enrolled Act No. 1 is a legislative act that was signed by Governor Mead, became law on January 29, 2013, and was effective immediately.
These are the only facts certified to this Court, and “[i]n a W.R.A.P. 11 certification of a question of law, [this Court relies] upon the facts presented by the certifying court.” Miech v. Sheridan Cnty., 2002 WY 178, ¶ 2, 59 P.3d 143, 145 (Wyo.
2002) (citing Kaycee Land & Livestock v. Flahive, 2002 WY 73, ¶ 3, 46 P.3d 323, 324
(Wyo. 2002)). Because Superintendent Hill has brought a facial challenge to the constitutionality of a statute, facts she raises about the law’s implementation are per se irrelevant to her appeal.
The State of Wyoming believes, however, that when considering the certified questions this Court would benefit from knowledge about the Superintendent’s statutory authority from territorial days to the present. Therefore, the State offers the following historical information—from the public domain—about education in Wyoming.
A. The Origins of the Office of Superintendent and the Early Assignment of Duties to the Office by the Territorial and State Legislatures
Originally, the office of the Superintendent of Public Instruction was an office ex officio, merely creating additional duties and supporting additional compensation for the territorial auditor. See 1869 Wyo. Terr. Laws 219-20 (Ch. 7, Title 1, § 1). Upon creating this office in December 1869, the Territorial Legislature charged it with filing and making available the papers, reports, and public dockets filed by county school officials; recommending textbooks; preparing and printing reports on the schools; printing the
5 school statutes and standard forms for use by county officials; and reporting to the
Legislature on the condition of the public schools. Id. at 220 (§ 2). The Superintendent was also responsible for making “an equal distribution of school funds,” and he was to have “a general supervision of all the district schools of the territory, and shall see that the school system is as early as practicable, put into uniform operation.” Id. The
Territorial Legislature modeled the statute on the laws of the Dakota Territory where
“much of the power for actual maintenance and administration of the local schools was left to qualified voters in the local district.” Terrence D. Fromong, The Development of
Public Elementary and Secondary Education in Wyoming: 1869-1917 (1962)
(unpublished Ph.D. thesis, University of Wyoming at 20-21); see also George J. Bale, A
History of the Development of Territorial Public Education in the State of Wyoming,
1869-1890 (1938) (unpublished M.A. thesis, University of Colorado) at 16-23.2
Two years later, in 1871, the Wyoming Territorial Legislature abolished the office.
See 1871 Wyo. Terr. Laws 104-05 (§ 1). At that time, some of the Superintendent’s duties were unnecessary: for example, there were no territorial school funds to distribute, and reports from County Superintendents could be sent directly to the Governor. To some extent, the belief in 1871 was that the Superintendent’s position, with its $500 salary per
2 This Court has relied previously upon these sources for information about the early history of education in Wyoming. See Campbell Cnty. Sch. Dist. v. State, 907 P.2d 1238,
1257 n.23 (Wyo. 1995) (Campbell I).
6 annum, was “simply a political plum and the salary out of proportion to the amount of time spent in the performance of duties.” Fromong at 54-55.
In 1873, the Territorial Legislature re-created the position of the Territorial
Superintendent of Public Instruction and this time assigned the position’s responsibilities to the Territorial Librarian as ex officio duties. See 1873 Wyo. Terr. Laws 239 (Ch. 58,
§ 1). The Territorial Governor, in his address to that legislature, had sought to restore the position. “We cannot, in this age of the world, hope to gain, as permanent residents of our
Territory, that class of population who have ‘given hostages to fortune,’ and have the greatest interest in the preservation of our institutions, unless our educational advantages are equal to those in the most favored State.” Governor John Allen Campbell, Message to the Third Legislative Assembly of Wyoming (1873), quoted in Fromong at 54. The
Legislature re-enacted most of the original powers and duties of the Superintendent, including the responsibility to file reports and public documents, the obligation to report to the Legislature, and the authority to implement statutes through rulemaking. And, the
Legislature once again charged the office with “a general supervision of all the district schools of the Territory and shall see that the school system is, as early as practicable, put into uniform operation.” See 1873 Wyo. Terr. Laws 240 (Ch. 58, § 2). The Legislature did not restore responsibility for distribution of school funds, perhaps because, as scholars have noted, there were no school funds to distribute. Fromong at 165. The
Legislature also provided the Superintendent with non-exclusive authority to issue teaching certificates—non-exclusive because County Superintendents could also certify
7 teachers—and the Superintendent was to hold a Territorial Teachers’ Institute annually to select the textbooks for the next school year.
Although the Territorial Legislature adopted some additional legislation regarding schools, the powers and duties of the Superintendent remained unchanged from 1873 through statehood in 1890. The Wyoming Constitution established the office of
Superintendent in article 7, section 14, although its description was different than under territorial laws. At the time of the Constitution’s framing, territorial laws prescribed the
Superintendent’s role in the general supervision of the public schools as follows:
He shall have a general supervision of all the district schools of the Territory and shall see that the school system is, as early as practicable, put into uniform operation.
1873 Wyo. Terr. Laws 240 (Ch. 58, § 2). Although this law remained in effect after statehood by operation of Wyo. Const. art. 21, § 3, the Constitution reassigned any role in securing uniform operation of the schools to the Legislature:
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.
Wyo. Const. art 7, § 1. The Superintendent’s role contracted to one of general supervision:
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.
Wyo. Const. art. 7, § 14.
8 In practice, there appears to have been little change in the Superintendent’s role from territorial government through early statehood. “During the Territorial Period this office was ex officio, invested with no real power, and, one might infer from reading reactions to it during this period, very little influence.” Fromong at 158. When, in 1915, the Wyoming Legislature created a ‘School Code Committee’ to develop school reform proposals, the Committee stated in its report that the Superintendent, twenty-five years after statehood, still had little role in the management of the public schools due to a lack of legislative authority. “No State Superintendent has ever made any serious attempt to assume actual supervision of the school system. The powers and duties are general and indefinite and give the State superintendent little authority in the educational development of the State.” A.C. Monaghan & Katherine M. Cook, Educational Survey of
Wyoming 22 (1917). Rather, from one-third to one-half of the Superintendent’s time— and the time of the Superintendent’s four office staff—was devoted to the
Superintendent’s participation on the Board of Land Commissioners, the Board of
Trustees of the University of Wyoming, and the State Board of Charities and Reform. Id. at 21.
The Superintendent’s lack of authority at that time should not be a surprise.
Although one could conceivably travel by rail to some towns in early Wyoming, the remainder of the State in the 1890s and 1900s was accessible only by horse or cart.
Marion Tinker Dillon served as County Superintendent of Schools for Sheridan County from 1896 to 1900, and she described her work as “very strenuous because of the long distances between the schools lying on the outskirts of the county, which was ninety by
9 one hundred miles of territory, and the distances all being covered by a one-horse buggy, and so many of the schools being held in the dead of winter.” Fromong at 129 (quoting
Cora M. Beach, Women of Wyoming 445-46 (1927)). And school facilities reflected the harsh life of early Wyoming residents. For example, as of 1915, four counties had no schools with water anywhere on the premises—that is, students were expected to haul drinking water from home or from a river to school. Monaghan & Cook at 34-35. And despite the Wyoming Constitution’s requirement that the Legislature compel at least three years of education before age 18, Wyo. Const. art. 7, § 9, the Legislature had not yet done so when the Superintendent noted that over 17 percent of children did not attend school in 1905. Fromong at 173.
B. Reform of the Office of Superintendent in the Early 20th Century
In 1915, the Wyoming Legislature created the Wyoming School Code Committee to “make a thorough investigation into the needs of the public schools of Wyoming and the laws under which they are organized and operated.” 1915 Wyo. Sess. Laws 239 (Ch.
157, § 3). That Committee’s survey on Wyoming education was published in 1917 as a
U.S. government document. See generally Monaghan & Cook, Educational Survey.
Noting numerous details about Wyoming education, including that, as of 1915, three of four teachers in Wyoming had two or fewer years of teaching experience, the report made recommendations as to how to professionalize and improve education in Wyoming. Id. at
48. The first two recommendations were to create both a State Board of Education as the administrative head of education in Wyoming and an appointed (no longer elected)
10 Superintendent as the person responsible for executing the Board’s commands. Id. at 96.
All new school officials were to be non-political. Id. at 99.
In 1917, the Wyoming Legislature adopted the recommendations of the School
Code Committee. The Legislature created the State Board of Education, which exists to this day. The 1917 legislation repealed the powers of the Superintendent, and it assigned responsibility for the general supervision of the public schools to the State Board of
Education. See 1917 Wyo. Sess. Laws 201-02 & 208 (Ch. 120, §§ 1 & 41). The implementation of the Board’s decisions was given to a “Commissioner of Education” who was selected by the Board. Id. The Commissioner was charged as “the executive head of the public school system of the State.” Id. at 204 (§ 18).
In 1919, after the election of a new governor and a new Superintendent, the
Wyoming Legislature revisited its changes to the school laws. The State has not located any legal proceedings challenging the 1917 reduction of the Superintendent’s authority, but it does appear that some individuals raised concerns about constitutional issues. In his first address to the Wyoming Legislature, Governor Joseph M. Carey stated that “[a]ny proposed legislation for the betterment of our schools should be given careful thought.”
Journal of the Wyoming House of Representatives 17 (1919). “In devising these laws, I suggest that you make certain that they will conform with the Constitution, as we cannot afford to have any law affecting our entire school system prove to be unconstitutional.”
Id. In that session, the Legislature altered the school statutes to provide again that “[t]he general supervision of the public schools shall be entrusted to the State Superintendent of
Public Instruction, who shall administer the State system according to law for the best
11 interests of the people and of the state . . . .” 1919 Wyo. Sess. Laws 180 (Ch. 127, § 1).3
In fact, the Legislature did even more than just restore the Superintendent’s prior authority, providing that the Superintendent “shall exercise general control and supervision of the public schools and the educational interests of the State.” Id. at 181
(§ 5) (emphasis added). The Legislature did not, however, abolish the State Board of
Education, which shared responsibility for school policy with the Superintendent:
The State Superintendent of Public Instruction with the State Board of Education shall prescribe policies of educational administration throughout the State, and shall recommend rules and regulations for the administration of the public school system. For the purpose of enforcing the school laws, the Board may institute legal proceedings in the names of the State of Wyoming.
Id. at 183 (§ 13). The Board’s independent authority to enforce school laws continued until the Legislature amended this statute in 1994, seventy-five years later. See 1994
Wyo. Sess. Laws 81 (Ch. 17, § 1). The Board was also entrusted with general oversight of vocational schools, with prescribing the educational standards for elementary and high schools, and with establishing certification standards for teachers. 1919 Wyo. Sess. Laws
183 (Ch. 127, §§ 14-15, 17). In addition to retaining the State Board of Education alongside the reinvigorated office of Superintendent, the 1919 Legislature retained the
Commissioner of Education, but the Commissioner now had two supervisors. “The
3 The period from 1917 through 1919, and the period from 1871 through 1873, are the only times during which the Legislature has not directed the office of Superintendent to provide general supervision of the public schools. The Education Act does not change this.
12 Commissioner of Education shall, under the general supervision and direction of the State
Superintendent of Public Instruction, execute the educational policies of the State Board of Education.” Id. at 184 (§ 20). Under this divided supervision, the Commissioner remained part of Wyoming education until 1959 when the office was abolished.
The statutory restoration of duties to the office of Superintendent appears to have been motivated, or at least justified in part, by constitutional concerns. Governor Carey’s address to the Legislature in 1919, by suggesting that the Legislature should “make certain” that any education law will “conform to the Constitution” is some evidence that some persons had raised constitutional concerns. Similarly, the contemporaneous
Biennial Report of the Attorney General—when discussing unrelated legislation— includes a parenthetical that the 1917 law is “in conflict with the provisions of Section
14, Article 7 of the State Constitution.” See W.L. Walls, Biennial Report of the Attorney
General of Wyoming, 1917-1918 at 8 (1919). But when the Commissioner of Education,
J.O. Creager, resigned in protest of the new law, his letter showed that at least some individuals thought the 1919 Act was motivated by a desire for “political power” for the newly elected Governor and Superintendent. J.O. Creager, Letter to the Chairman of the
State Board of Education, IX School & Society 322 (1919). In Commissioner Creager’s view, any claim that the changes were about “constitutionality” was the “grossest and most palpable pretense.” Id. The State has been unable to find any evidence these constitutional concerns ever made it to court. Nor has the State found any internal legal opinions or other historical information about the content of the 1919 debates.
13 The 1917-1919 changes in the Superintendent’s powers represent the only time that the State has found any evidence of a debate over the central questions posed in this case. If this debate had produced a court decision or even clear analysis by legal minds of the day, then it might have advanced this Court’s current analysis because the debate occurred less than thirty years after the Constitution’s adoption. But the records only demonstrate the existence of a debate, not what was said.
C. Legislative Changes to the Office of Superintendent and the Development of the Department of Education in the Second Half of the 20th Century
In any event, from 1919 until 1959, the office of Superintendent co-existed with the State Board of Education and a Commissioner of Education. The State has similarly found no record of any constitutional challenge to this new division of duties. During these forty years, state officials focused on administrative efforts to improve rural schools. John A. Bartholow, The Development of Public Elementary & Secondary
Education in Wyoming: 1917-1945 at 41 (1969) (unpublished D.Ed. thesis, University of
Wyoming) (1969). This period also saw significant growth in the state staff assigned to education. In 1915, a vague entity not created by statute that later scholars have referred to as the department of education consisted only of the Superintendent, a Deputy
Superintendent, and three clerks. Id. at 237. By 1922, the so-called department included eleven full-time employees, in addition to the seven-member State Board of Education.
Id. at 240-41. Soon, these employees were divided into five divisions (Administration,
Special Education, Vocational Education, Civilian Rehabilitation, and the Supervision of the Education of the Deaf and Blind). Id. at 244. Sections for Teacher Retirement and
14 School Equalization were added, and by 1945, what became the Department of Education by statute in 1969 had 16 full-time professional employees. Id. at 245-46.
No definitive study of the history of Wyoming education exists for the period after
1945, but several milestones stand out. In 1959, the Wyoming Legislature changed the school code significantly. It eliminated the position of the Commissioner of Education and gave the Superintendent responsibility for approving teacher certification. 1959 Wyo.
Sess. Laws 123-24 (Ch. 109, §§ 7-8, 10). This was also the year of the Federal government’s permanent entry into education. There had been funding for vocational education after World War I ended. See 1921 Wyo. Sess. Laws 144-45 (Ch. 109)
(cooperating with the Federal Board for Vocational Education and assigning responsibility to the State Board of Education). But in the wake of the Soviet Union’s successful launch of the Sputnik satellite, the federal government began permanent, direct support of public education in the United States. The National Defense Education Act of
1959 “brought a large infusion of federal funds.” Wyoming State Archives, Department of Education Administrative History, 2003, http://wyoarchives.state.wy.us/Archives/
DIResults.aspx?ID=26 (last visited June 19, 2013). The Legislature authorized the State
Board of Education to accept this federal money if the State Board certified annually that the money was needed and could not be secured elsewhere. 1959 Wyo. Sess. Laws 46
(Ch. 49, § 2). And, in 1965, the Federal government increased aid with the Elementary-
Secondary Education Act. See, supra, Department of Education Administrative History.
In 1969, for the first time, the Wyoming Legislature designated that the
Superintendent should be the “administrative head and chief executive officer of the
15 department of education.” 1969 Wyo. Sess. Laws 149 (Ch. 111, § 9). Prior to this statute,
“no provision ha[d] ever sanctioned the existence of the State Department of Education.”
Donald L. Painter & Robert H. Johnson, The Wyoming Education Code of 1969, 5 Land
& Water L. Rev. 531, 549 (1970). Other than the Superintendent’s management of the
Department of Education, however, the office’s duties were not broad. The Legislature provided the Superintendent with rulemaking authority where the State Board of
Education did not already have rulemaking authority. 1969 Wyo. Sess. Laws 149-50 (Ch.
111, § 10). The Legislature also charged the Superintendent with enforcing and adjudicating disputes in the education system. Id. At the same time, the Legislature made the State Board of Education more independent. Prior to 1969, the Superintendent appointed the members of the State Board of Education, after approval by the Governor, and the Superintendent voted in the Board’s deliberations. See 1919 Wyo. Sess. Laws
180-81 (Ch. 127, § 4). With the Legislature’s 1969 revisions, all Board of Education members were to be appointed by the Governor, with Senate confirmation, and the
Superintendent became a non-voting member of the State Board. See 1969 Wyo. Sess.
Laws 150 (Ch. 111, § 11).
As this Court is aware, some of the most significant developments after 1969 have been judicial, not legislative. After the Washakie decision in 1980, and to an even greater extent after this Court’s decision in 1995 in Campbell I, the Wyoming Legislature has become increasingly involved in decisions about education policy and funding. See
Washakie Cnty. Sch. Dist. No. 1 v. Herschler, 606 P.2d 310 (Wyo. 1980) & Campbell
Cnty. Sch. Dist. v. State, 907 P.2d 1238 (Wyo. 1995). As the Legislature has become
16 increasingly involved, the authority of the State Board of Education has contracted. In
1985, the Legislative Service Office (LSO) concluded that the Board had an “ambivalent relationship” with the Superintendent, being responsible for educational policy but being dependent on the Superintendent for both administrative assistance and implementation of this policy. See Legislative Service Office, Staff Audit Report of the State Board of
Education 19 (1985). The LSO recommended that the Legislature either reinforce the
Board’s independence or officially designate it as subservient to the Superintendent. Id. at
22. Additional legislative reports followed in 1989 and 2005, but the Legislature did not implement those recommendations. See Joint Legislative-Executive Efficiency Study
Committee, A Study in State Government Efficiency (1989) & Management Audit
Committee, State-Level Education Governance (2005).
Between the formal creation of the Department of Education in 1969 and the 2013
Education Act, the Legislature increased the duties of the Department, and in almost every case assigned management of these duties to the Superintendent. In 2013, through the Education Act, the Legislature withdrew these same management duties from the office of Superintendent. The Legislature created a new official—the Director of the
Department of Education—to serve as the “administrative head and chief executive officer” for the Department. See 2013 Wyo. Sess. Laws 1. Superintendent Hill has singled out some of the statutory authorities that the Legislature transferred within the executive branch to the Director of the Department of Education. Appellants’ Br. at 10-
11. All but a few of these statutory powers are of recent vintage. The State has identified the precise statute that first gave the Superintendent each power that the Legislature
17 removed from the Superintendent in 2013 and vested in the Director, and the State has attached a chart with citations. See Appellees’ Appendix A. Only nine (9) of the sixty- eight (68) duties have been consistently within the Superintendent’s purview prior to and since the 1969 reforms. And even these nine duties were not necessarily exclusive to the
Superintendent. For example, beginning in 1919, the Superintendent shared enforcement responsibility with the State Board of Education, and this shared responsibility existed until 1994. See 1994 Wyo. Sess. Laws 81.
The 2013 Legislature removed only one duty that the Superintendent had at statehood. In 1869, the Territorial Legislature charged the Superintendent with printing forms for use by other school officials:
He shall cause so many copies of this act, with the forms, regulations, and instructions herein contemplated thereunto annexed, to be from time to time printed and distributed among the several school districts of the territory, as he shall deem expedient.
1869 Wyo. Terr. Laws 220 (Ch. 7, § 2). In 1917, this authority to print forms for use by school officials was removed and given to the Commissioner of Education. See 1917
Wyo. Sess. Laws 206 (Ch. 120, § 26). In 1959, this provision was transferred to the State
Board of Education. 1959 Wyo. Sess. Laws 122 (Ch. 109, § 3). See also 1969 Wyo. Sess.
Laws 152 (Ch. 111, § 14(g)). In 1987, the Legislature returned the responsibility for printing school laws and forms to the Superintendent, and until this responsibility was given to the new Director in 2013, the Superintendent was to:
Print and distribute to local boards of trustees, local school administrators and other persons and agencies within or without the state the school laws, regulations, forms, necessary reports of the state board, state committee, state superintendent, and state department.
18 1987 Wyo. Sess. Laws 499 (Ch. 190, § 2).
D. The Office of Superintendent Today
After the 2013 Education Act, the Superintendent’s office continues, and it has specific duties. See 2013 Wyo. Sess. Laws 3-4 (revising Wyo. Stat. Ann. § 21-2-201).
The Superintendent serves on the State’s Board of Land Commissioners, the State Loan and Investment Board, the Board of Trustees of the University of Wyoming, and the State
School Facilities Commission. See Wyo. Const. art. 18, § 3 (Board of Land
Commissioners); Wyo. Stat. Ann. § 11-34-102 (State Loan and Investment Board); Wyo.
Const. art. 7, § 17 (University of Wyoming Board of Trustees); Wyo. Stat. Ann. § 21-15-
113(a) (School Facilities Commission) (revised by 2013 Wyo. Sess. Laws 22). The
Legislature has directed the Superintendent to report by October 15th of each year as to the general status of the public schools. 2013 Wyo. Sess. Laws. 3 (revised Wyo. Stat.
Ann §21-2-201(b)). The Legislature has also directed the Superintendent to identify the professional development needs of teachers and provide a plan—with up to five workshops each year—to meet these needs. Id. at 4 (revised Wyo. Stat. Ann. § 21-2-
201(c)(vi). The Legislature has provided the Superintendent with specific authority over the State’s Teacher of the Year Program, rules for the seclusion or restraint of students, efforts to minimize head injuries from school athletics, and the use of toxic chemicals in schools. Id. at 3-4 (revised Wyo. Stat. Ann. § 21-2-201(c)(ii)-(v)). The Legislature has also retained the Superintendent’s authority to prescribe the application for charter school approval, as well as the rules local school districts must use when considering a charter school application. Wyo. Stat. Ann. § 21-3-307(d).
19 Above all, the Legislature has directed that the Superintendent continue the
“general supervision of the public schools.” 2013 Wyo. Sess. Laws 3 (revised Wyo. Stat.
Ann. § 21-2-201(a)). The Legislature has also provided authority to adopt such rules “as may be necessary for the proper and effective general supervision of the public schools” unless the Legislature has given responsibility over that area of law to the State Board of
Education or to the new Director of the Wyoming Department of Education. 2013 Wyo.
Sess. Laws 3 (revised Wyo. Stat. Ann. § 21-2-201(c)(i)).
History makes clear that at statehood, the Superintendent had little authority and this condition persisted for quite a while. When state officials became concerned about educational progress, the Legislature provided other executive branch officials, particularly the State Board of Education, with a major role in education. Over the past century, the authority of the State Board has waned, and the Legislature has increased the number of the Superintendent’s duties. This is especially true in the past forty years, following the official creation of the Department of Education in 1969. When in 2013 the
Legislature transferred management of the Department of Education from the
Superintendent to another executive branch officer, the Director, those management duties were duties that the Legislature had itself created by statute and created quite recently. The Superintendent’s current statutory duties are no longer as they were in the recent past, but they resemble and exceed the early duties the Superintendent enjoyed at statehood. Moreover, the 2013 Education Act retained the basic provision that the
Territorial Legislature first enacted in 1869: the provision that gave the Superintendent
“general supervision” of the public schools.
20
SUMMARY OF ARGUMENT
In its essence, Superintendent Hill’s argument is that while the Wyoming
Legislature has the constitutional authority to expand the powers and duties of her office by statute, future legislatures are bound by such actions. To Superintendent Hill, her statutory duties represent merely the recognition of the inherent constitutional powers of her office, and future generations may not remove or reassign any duties that fall within her broad view of what constitutes the general supervision of the public schools. See
Appellants’ Br. at 21.
The State of Wyoming does not agree. The Wyoming Constitution does not imbue the office of Superintendent with sweeping, inherent authority over the education of
Wyoming children. The Constitution explicitly leaves decisions about the
Superintendent’s powers and duties to the Legislature. In 2013, the Legislature—and the
Governor through his power to sign or veto legislation—reformed the structure of public education in Wyoming when they withdrew, by law, many of the administrative duties that were previously given, by law, to the Superintendent. The State rejects any suggestion that this Legislature was bound by its predecessors and therefore unable to retract authority that was previously granted.
Article 7, section 14 of the Wyoming Constitution, which creates the office of the
Superintendent, expressly delegates power to the Legislature to dictate the powers and duties of the State Superintendent of Public Instruction. The Wyoming Constitution envisions that the “powers and duties” of the Superintendent will be “prescribed by law,”
21 and early in this State’s history, this Court held that this constitutional language allows the Legislature to either increase or restrict the authority of other state entities. Mau v.
Stoner, 14 Wyo. 183, 83 P. 218 (Wyo. 1905).
Superintendent Hill interprets the phrase “general supervision of the public schools” as a limitation on the Legislature’s authority to “prescribe[] by law” her powers, but this is incorrect. The phrase “general supervision” is more accurately read as a restriction on the Superintendent than as a grant of sweeping authority. The State believes the term “general supervision” means only that the Superintendent’s core function is one that enables a broad view of education in Wyoming, not one that guarantees a host of duties to impose that vision. To be sure, the Legislature may prescribe detailed, operational duties for the Superintendent, and the Legislature has done so, but the
Constitution does not require the Legislature to prescribe such duties.
The State’s position is bolstered by the constitutional history and the early history of education in Wyoming. At the Wyoming Constitutional convention, the delegates envisioned an important role for the State Superintendent, but the role was to carry out statutory duties the Legislature would later assign to that office and not to exercise inherent constitutional power over education. Moreover, if the Wyoming Constitution had provided the pervasive, inherent authority that Superintendent Hill asserts, one would expect some suggestion to this effect during the first twenty-five years of Wyoming’s statehood. Nothing of this sort appears in the historical record. In fact, the early history suggests a widespread belief that the office of Superintendent lacked significant statutory authority and was therefore ineffectual. The historical record also refutes the notion that
22 the Superintendent has exclusive state-wide authority over education. For almost one hundred years, the Legislature has given authority for education to other state agencies, such as the State Board of Education, the State School Facilities Commission, and for forty years, the Commissioner of Education. While the Superintendent no longer manages the Department of Education, the Legislature did not even create this
Department as a formal agency until 1969, so its divestiture does not retract a long- standing authority. Nor is it surprising that the powers that Superintendent Hill identifies in her brief as “meaningful” were granted to her office only in the past twenty-five years.
Superintendent Hill’s other constitutional arguments are derivative, and they should also be dismissed by this Court. The rest of her brief assumes that the Legislature has impermissibly interfered with her constitutional authority—a violation of article 7, section 14 under her theory of the Wyoming Constitution—and this constitutional violation leads her to find phantom violations of other sections.
In her second certified question, Superintendent Hill implicitly assumes that her office’s statutory duties prior to 2013 are necessary components of her inherent constitutional power that, while granted by statute, cannot be removed by this same legislative process. She believes that only a constitutional amendment will do, so the failure of the Legislature to adopt a constitutional amendment violates the “reservation of power to the people” clause. Wyo. Const. art. 1, § 1. This certified question is derivative because, if article 7, section 14 of the Wyoming Constitution authorizes the Legislature to make these changes to the office of Superintendent (the first certified question), then no constitutional amendment is needed.
23 The third certified question is also dependent upon this Court’s answer to the first question. In article 2, the Constitution divides power between the legislative, executive, and judicial branches. Wyo. Const. art. 2, § 1. Because Superintendent Hill believes that her office has broad, inherent power over education, she also believes that the
Constitution implicitly limits the Legislature’s power in this area. The Legislature, she maintains, “has encroached significantly on the function of the executive branch” by reallocating, within the executive branch, responsibility for certain educational decisions and by “reorganizing the governing structure of education without any supporting constitutional authority.” Appellants’ Br. at 53.
Superintendent Hill’s challenge to the 2013 Education Act, however, overlooks the text of the separation of powers section itself, which allows interplay between the branches of government when such interplay is “expressly directed or permitted” elsewhere in the Constitution. And the second clause of article 7, section 14, which gives the Legislature extensive power to “prescribe” the duties of the Superintendent, falls squarely within the exception provided by the separation of powers section. Moreover,
Superintendent Hill’s theory of the division of responsibility is foreclosed by this Court’s precedents. These facts obviate any separation of powers concerns over the 2013
Education Act.
The fourth certified question, while still derivative, is the only one that is not entirely resolved by a decision on the extent of the Superintendent’s inherent authority under article 7, section 14. Superintendent Hill argues in the fourth certified question that the 2013 Education Act is an impermissible “special law” entirely outside of the
24 Legislature’s authority. Wyo. Const. art. 3, § 27. Without citing any of this Court’s pertinent authority, she argues that the prohibition against special laws specifically limits the authority of the Legislature over education. Appellants’ Br. at 41. She also argues that because the Education Act was effective immediately, and not delayed for two years until she finished her term, the law “does not operate uniformly but instead operates upon only a fraction of the persons encompassed by a classification.” Appellants’ Br. at 57 (internal citation and punctuation omitted).
This novel and unsupported argument is already answered by this Court’s basic jurisprudence on special and local laws. This Court has an established analysis of what does, and does not, constitute a class of persons or entities from which the Legislature is barred from carving out class members for special treatment. Superintendent Hill, an elected official charged with faithfully carrying out the duties of an office of Wyoming government, simply does not qualify as the victim of a special law.
Superintendent Hill brings this facial challenge to the very existence of the
Director of the Wyoming Department of Education. Although this Court requires
“appropriate constitutional analysis, legal authority, or cogent argument” on constitutional issues, her brief repeatedly omits relevant precedents and history. At one point, the brief interprets the Wyoming Constitution in a manner that is directly contrary to this Court’s precedents on education without even identifying those decisions. The
State respectfully submits that none of Superintendent Hill’s arguments to this Court overcome the heavy burden placed upon her to demonstrate beyond any reasonable doubt that the Education Act—a duly considered law enacted by the Legislature and signed by
25 the Governor—is unconstitutional. Superintendent Hill’s certified questions should be answered in the negative, and the State of Wyoming should be allowed to continue to implement its educational reform efforts.
ARGUMENT
I. Standard of Review
Superintendent Hill challenges the constitutionality of a Wyoming statute, so she must overcome a “heavy” burden of proof. First, she must surmount this Court’s declaration that laws of the State are presumed constitutional unless the challenger proves otherwise “beyond any reasonable doubt.”
The party challenging the constitutionality of a statute bears the burden of proving the statute is unconstitutional. That burden is a heavy one “in that the appellant must ‘clearly and exactly show the unconstitutionality beyond any reasonable doubt.’” In our analysis, we presume “the statute to be constitutional . . . . Any doubt in the matter must be resolved in favor of the statute’s constitutionality.”
Krenning v. Heart Mountain Irrigation Dist., 2009 WY 11, ¶ 33, 200 P.3d 774,
784 (Wyo. 2009) (internal citations omitted); see also Cathcart v. Meyer, 2004 WY 49, ¶
7, 88 P.3d 1050, 1056 (Wyo. 2004).
In addition, although Superintendent Hill describes her challenge as implicating a
“fundamental constitutional right,” she actually challenges the Legislature’s changes to the current structure of Wyoming government, arguing that the Superintendent should continue to manage the Department of Education. Appellants’ Br. at 7 (characterizing this case in part as about “[t]he fundamental right of the Superintendent to execute the constitutional authority vested exclusively in her office”). This is a challenge based on
26 the Wyoming Constitution’s division of powers. Cases involving fundamental, individual rights, such as free speech restrictions, simply do not apply.
Superintendent Hill may wish to avoid characterizing this case as a separation of powers challenge because this Court imposes an additional burden on such challenges.
Constitutional challenges based on the separation of powers—as opposed to those where an individual asserts that an individual right has been violated—are decided pragmatically. This Court has rejected the idea that the Wyoming Constitution creates inflexible borders such that “one department of government may not encroach upon functions belonging to another” and also rejected the idea that the Courts are to “preserve each of the powers [of government] in separate, air-tight compartments.” Billis v. State,
800 P.2d 401, 414 (Wyo. 1990). Instead, this Court has a pragmatic view of government, and its analysis does not end with the claim that a certain power belongs to a specific branch of government:
From the foregoing discussion, we see that Wyoming’s constitutional scheme of state government is, like the federal scheme of national government, replete with checks and balances. Considering the organizational structure, the placement of powers and the system of checks and balances, we are convinced that the state’s framers had in mind a pragmatic, flexible view of differentiated governmental power. They intended that “practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring opinion). Separation of powers, then, merges into balanced government. We adopt this view and reject the “air-tight compartment” view of these criminal defendants.
Id. at 415. For Superintendent Hill to succeed in her challenge, then, she must not only identify a violation of the Wyoming Constitution, but she must also explain how the
27 Education Act—adopted by the Wyoming Legislature and the Governor—harms divided government so severely that a court must intervene. This obligation increases the already heavy burden placed upon this constitutional challenge.
Superintendent Hill’s burden is further magnified by the posture of this case. She brought a facial challenge to the constitutionality of the Education Act. Her suit was filed within hours of Governor Mead’s signature and before any implementation of the Act could take place. In a facial challenge, the plaintiff must show the statute is unconstitutional in all possible applications. “The challengers present a facial challenge which is ‘the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.’” Dir. of the Office of State Lands and Invs. v. Merbanco, Inc., 2003 WY 73, ¶ 32, 70 P.3d 241,
252 (Wyo. 2003) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). In a facial challenge, the Court is not asked to examine the statute—here, the Education Act—to determine whether the executive branch’s application violates the Wyoming Constitution.
Rather, the Superintendent asks this Court to forbid an Act of the Wyoming Legislature no matter how it is understood or applied.4
4 When Superintendent Hill filed suit, no facts about the Education Act existed, and she cannot bring new facts to this Court through affidavits and transcripts that she attached to her brief. See, e.g., Appellants’ Br. at 11-12 (citing Superintendent Hill’s testimony at the
District Court’s preliminary injunction hearing). These materials should be disregarded.
28 Finally, Superintendent Hill must meet her heavy burden with “a precise, analytically sound approach” that uses “appropriate constitutional analysis, legal authority, or cogent argument.” Dworkin, 839 P.2d at 909. This analytically sound approach begins with textual analysis, looking to the plain meaning of the words used and then to the canons of statutory construction. Zancanelli v. Central Coal & Coke Co.,
25 Wyo. 511, 173 P. 981, 991 (1918) (holding the same rules of interpretation apply to the Constitution as apply to statutory construction). The parties, however, have an obligation to provide more. Litigants should provide constitutional history, an awareness of the other five state constitutions adopted at roughly the same time as Wyoming’s
(Washington, Idaho, North Dakota, South Dakota, and Montana), and other relevant background material. The Court needs this additional information so that state constitutional interpretation does not spring from “pure intuition” but instead develops
“from a process that is at once articulable, reasonable, and reasoned.” Saldana v. State,
846 P.2d 604, 622 (Wyo. 1993) (Golden J., concurring) (quoting State v. Grunwall, 720
P.2d 808, 813 (Wash. 1986)). These additional interpretive sources are “non-exclusive neutral criteria” to be considered as part of constitutional interpretation, id., so they do not represent a rigorous checklist, but this Court has refused to consider arguments that do not use a “precise, analytically sound approach” to state constitutional interpretation,
Doles, 994 P.2d at 320 (quoting Dworkin, 839 P.2d at 909).
29 II. The Wyoming Constitution does not imbue the office of Superintendent with pervasive, inherent power over education in Wyoming.
A. The text of the Constitution expressly envisions that the Legislature will dictate the powers and duties of the Superintendent.
Without question, the Legislature’s Education Act removed from the
Superintendent many of the duties that it had previously granted to her office. This Court must determine whether Superintendent Hill has demonstrated “beyond any reasonable doubt” that the Wyoming Constitution requires that the office of Superintendent have these duties. Krenning, ¶ 33, 200 P.3d at 784.
The Wyoming Constitution contains only two provisions that touch on the
Superintendent’s powers and duties. First, the Constitution mentions the Superintendent’s authority in connection with the other statewide elected officials:
The powers and duties of the secretary of state, of state auditor, treasurer and superintendent of public instruction shall be as prescribed by law.
Wyo. Const. art. 4, § 12. Superintendent Hill’s brief ignores this provision, but if this first provision were the only one to describe the Superintendent’s authority, a constitutional challenge to the 2013 Education Act would be doomed. While the Wyoming Supreme
Court has never interpreted this provision, the Supreme Court of North Dakota—one of the states that adopted its constitution when Wyoming did—has considered this exact issue. In Langer v. Totten, the North Dakota Supreme Court considered whether its
Legislature could create a “board of administration” to dictate education policy for all schools in that State, from elementary schools through the University. Langer v. Totten,
30 175 N.W. 563, 565-66 (N. Dak. 1919).5 Opponents asserted that the authority to regulate school curriculum in North Dakota was “a power or duty theretofore imposed and always exercised by such superintendent since statehood” and the law therefore “deprive[d] a constitutional officer of a power that is inherent in the office.” Id. at 566. The supreme court upheld the law and ruled that North Dakota’s Legislature possessed the power “to add to or to take away from the duties of the superintendent of public instruction . . . not only by reason of no restrictive provision inhibiting the exercise of such power in the
Constitution, but by direct mandate so to do therein.” Id. Thus, the North Dakota court paid heed to the proviso in its constitution that empowered its legislature to “prescribe” the Superintendent’s duties “by law.”
Unlike the other States that adopted a constitution at the same time as Wyoming—
North Dakota, South Dakota, Idaho, Washington, and Montana—Wyoming has a second provision that describes the office of Superintendent. See Richard K. Prien, The
Background of the Wyoming Constitution 83 (1956) (unpublished M.A. thesis, University of Wyoming) (in which the author identifies similarities among these constitutions). That provision, article 7, section 14, states:
5 The North Dakota Constitution provided at that time:
The power and duties of the Secretary of State, Auditor, Treasurer, Superintendent of Public Instruction, Commissioner of Insurance, Commissioners of Railroads, Attorney General, and Commissioner of Agriculture and Labor, shall be as prescribed by law.
N. Dak. Const., art. 3, § 83 (adopted 1889).
31 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.
Wyo. Const. art. 7, § 14.6 It is this provision that forms the crux of this case.
Superintendent Hill argues that article 7, section 14 grants her office sweeping authority over public education in Wyoming, but her interpretation is flawed, not only because her textual analysis is incomplete, but also because she fails to provide or give any interpretive weight to this Court’s case law on what it means for a legislature to
“prescribe by law” the powers of an executive official.
For her flawed textual analysis, Superintendent Hill uses a dictionary from the mid-20th century to parse each word in article 7, section 14, but without the necessary context. “Our cases explain that every statement in the Constitution must be interpreted in light of the entire document, rather than as a series of sequestered pronouncements, and that the Constitution should not be interpreted to render any portion of it meaningless, with all portions of it read in pari materia and every word, clause and sentence considered so that no part will be inoperative or superfluous.” Cathcart v. Meyer, ¶ 40, 88
P.3d at 1066 (quoting Geringer v. Bebout, 10 P.3d 514, 520 (Wyo. 2000)).
6 The State of Wyoming has considered if there is any relevance to the difference between article 7, § 14, which states that the Superintendent’s powers and duties “shall be prescribed by law” and article 4, § 12, which states that the duties of the various officers
“shall be as prescribed by law,” but it has not discerned any.
32 1. The phrase “as prescribed by law” means that the Legislature can decide what powers and duties the Superintendent will exercise.
The second clause of article 7, section 14, is clear in its import, although
Superintendent Hill gives it short shrift in her brief. Through it, the drafters delegated power to the Legislature to dictate the powers of the State Superintendent of Public
Instruction. The “powers and duties” of the Superintendent will be “prescribed by law.”
State courts throughout the United States understand the term “prescribed by law” to mean that the Legislature—the source of law—has been granted responsibility. See, e.g.,
State ex rel. Wilson v. Weir, 79 P.2d 305, 308 (Mont. 1938) (“The words ‘as may be prescribed by law,’ as used in this section, mean as may be prescribed by act of the legislative assembly.”); Howard v. Cook, 83 P.2d 208, 210 (Idaho 1938) (holding the phrase “as may be prescribed by law” means “as prescribed by the legislature.”). See also, e.g., Application of Okla. Capitol Imp. Auth., 958 P.2d 759, 763 (Okla. 1998) (“The term ‘prescribed by law’ denotes legislative enactments—statutes promulgated by the governing legislative body.”).
In a single sentence, Superintendent Hill appears to concede that the phrase “as prescribed by law” grants power to the Wyoming Legislature to determine the authority of her office. Appellants’ Br. at 21 (“The State argues that the Legislature can expand or contract the powers of the Superintendent. In part, this is correct.”) But the remainder of her brief consists of attempts to explain away this phrase as largely meaningless.
First, Superintendent Hill argues that the phrase is “the authority to refine the details of what would was [sic] needed in education.” Appellants’ Br. at 24. Put another
33 way, she argues that the Legislature’s authority is only “to add to or define” the
Superintendent’s power. Id. at 48. Early in this State’s history, however, the Wyoming
Supreme Court expressly rejected such a cramped definition of the phrase “prescribed by law.” Mau v. Stoner, 14 Wyo. 183, 83 P. 218 (Wyo. 1905). And despite discussion of
Mau by the State of Wyoming in the district court, Superintendent Hill fails to cite this case in her brief. See Appellants’ Appendix 8 at 25.
In Mau v. Stoner, a plaintiff sought judicial review of a district court’s decision to appoint a commissioner to determine water rights along an irrigation ditch. Mau, 83 P.
218. The question for the Wyoming Supreme Court was whether the Legislature, which had provided by statute that the district court’s decision to appoint an official to regulate water from an irrigation ditch “shall be final,” had prevented an appeal of that decision to the Supreme Court. Id. at 219. This Court concluded that the Legislature could impose such finality even though article 5, section 2 of the Wyoming Constitution gives the supreme court general appellate jurisdiction over civil causes:
The Supreme Court shall have general appellate jurisdiction, co-extensive with the state, in both civil and criminal causes, and shall have a general superintending control over all inferior courts, under such rules and regulations as may be prescribed by law.
Wyo. Const. art. 5, § 2 (cited in Mau, 83 P. at 219).
The Mau Court expressly endorsed the Legislature’s ability to restrict the Supreme
Court’s jurisdiction and, considering this specific constitutional provision, the Court emphasized that the phrase “as may be prescribed by law” was the framers’ delegation of meaningful power to the Legislature. “We think the expression ‘under such rules and
34 regulations as may be prescribed by law’ refers to and limits all the powers conferred by the section; in other words, prescribes how the exercise of these powers may be regulated and limited.” Mau, 83 P. at 219 (emphasis added).7
Superintendent Hill believes the Legislature lacks the power to expand or contract her duties and that the phrase “prescribed by law” only empowers the Legislature to elucidate duties that already exist. And once revealed, Superintendent Hill believes these duties remain inviolate. But the lesson of Mau is that the phrase “prescribed by law” permits the Legislature to establish or to limit duties at its discretion.
Superintendent Hill also argues that the Education Law is unconstitutional because the Legislature is limited to “prescribing” the Superintendent’s powers and duties, not
“proscribing” them. Appellants’ Br. at 21. When interpreting the meaning of a specific word, this Court occasionally considers alternative words that the Legislature could have selected but did not use. Redco Const. v. Profile Properties, LLC, 2012 WY 24, ¶ 29, 271
P.3d 408, 416 (Wyo. 2012). But before applying this approach, the Court must be convinced that the alternative word makes grammatical sense. The framers would not have written that the Superintendent’s powers and duties “shall be proscribed by law.”
7 The Wyoming Supreme Court has not overruled this holding in Mau. The Court subsequently distinguished Mau’s effect on appellate jurisdiction, however, by holding that the Court’s authority to issue a writ of certiorari pursuant to Wyo. Const. art 5, § 3, is independent of art. 5, § 2, and cannot be limited by the Legislature. State v. Heiner, 683
P.2d 629, 641 (Wyo. 1984) (Rooney, J., specially concurring).
35 The first edition of Black’s Law Dictionary, published in 1891, gives a very specific meaning to the word “proscribed”: “In the civil law” it means those people “who were sentenced to some punishment which carried with it the consequences of civil death.”
Black’s Law Dictionary 956 (1891). The word is not a synonym of prescribe, and it provides no aid to constitutional interpretation. More likely, the framers of the Wyoming
Constitution used the term “prescribe” in its natural sense, which gives the Legislature the authority to regulate, control, and to limit the powers and duties of the office of
Superintendent:
To direct; define; mark out. In modern statutes relating to matters of an administrative nature, such as procedure, registration, etc., it is usual to indicate in general terms the nature of the proceedings to be adopted, and to leave the details to be prescribed or regulated by rules or orders to be made for that purpose in pursuance of an authority contained in the act. Sweet. [This last word appears to be in the original.]
Black’s Law Dictionary 930 (1891) (italics in original).
In fact, Superintendent Hill’s resort to the term “proscribed” is simply an attempt to interpret the phrase “prescribed by law” so a prior legislature can bind a future one.
Under her interpretation of the phrase, the Legislature may only “add to or define the general duties of supervision by the Superintendent.” Appellants’ Br. at 48 (emphasis in original). Once the Legislature grants a specific power or duty to the Superintendent, however, Superintendent Hill seems to assume this authority becomes immutable absent a constitutional amendment. This notion, that a law passed by one legislature becomes law for all time as if incorporated into the Constitution, has been rejected since the earliest days of the United States. “[O]ne legislature is competent to repeal any act which
36 a former legislature was competent to pass” and to hold otherwise would be to conclude that a legislature could “abridge the powers of a succeeding legislature.” Fletcher v. Peck,
10 U.S. 87, 135 (1810). See also Marbury v. Madison, 5 U.S. 137, 177 (1803) (The
Constitution is not “on a level with ordinary legislative acts” that are “alterable when the legislature shall please.”). And this Court has applied this basic principle, while acceding to the reality that governmental entities must be able to enter binding contracts under some circumstances. Mariano & Associates, P.C. v. Bd. of Cnty. Comm’rs of Sublette
Cnty., 737 P.2d 323, 329 (Wyo. 1987).
Superintendent Hill may dislike the consequences of the constitutional language— arguing 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”—but courts do not change interpretations simply because another interpretation leads to a favored result.
Appellants’ Br. at 30. “Courts are not at liberty to impose their views of the way things ought to be simply because that’s what must have been intended, otherwise no statute, contract or recorded word, no matter how explicit, could be saved from judicial tinkering.” Byington v. Fuller, 587 P.2d 636, 638 (Wyo., 1978) (quoting Kilpatrick v.
Super. Ct., 466 P.2d 18, 27 (Ariz. 1970)). The Wyoming Constitution explicitly grants to the Legislature the authority to determine the scope of the powers and duties of the
Superintendent. Long ago, Justice Potter and Justice Van Orsdel—two of Wyoming’s first justices and, in the case of Justice Potter, one of the participants in Wyoming’s constitutional convention—held in Mau v. Stoner that “prescribed by law” means that the
37 Legislature may reduce the powers of another state entity. And the 2013 Legislature was not limited by the fact that some prior Legislature may have thought differently about which powers the office of the Superintendent should exercise.8
2. By its plain meaning, the first clause of Article 7, section 14 of the Constitution does not grant the Superintendent broad power over education in Wyoming.
The first clause of article 7, section 14 states that “[t]he general supervision of the public schools shall be entrusted to the State Superintendent of Public Instruction.”
Superintendent Hill believes that this clause is a grant of the “power of general supervision” to the Superintendent of Public Instruction for the “whole work of education.” Appellants’ Br. at 21 & 22. Because of this supposed affirmative grant of
8 Superintendent Hill also argues that the term “whose” in the second clause somehow suggests exclusivity. Appellants’ Br. at 20. That is, because article 7, section 14 states the
Superintendent is the entity “whose” powers and duties shall be prescribed by law, this means that only the Superintendent can have “powers and duties” related to education.
The difficulty with such an argument is that this second phrase is not a grant of power to the Superintendent. This clause describes “whose” powers and duties shall be prescribed by law, not “what” powers and duties shall be granted. The State of Wyoming also notes that, if accepted, this argument would eliminate any authority that the State Board of
Education has exercised over education policy for the past 96 years as well as undermine the State School Facilities Commission, both of which are legislative creations with
“powers and duties” related to education.
38 power, she argues that the Legislature has no right to diminish or transfer any previously assigned duties of her office.
Superintendent Hill’s interpretation of the term “general supervision” as a broad grant of power, however, is incorrect. Rather than being an affirmative grant of power to the Superintendent, the phrase “general supervision” is more accurately read as a restriction on the Superintendent’s authority. Just as the Legislature may not single out particular individuals for differential treatment but must enact laws that are “general” on their face, the State believes that the term “general supervision” is best understood to have a similar meaning. The term “general law” restricts the Legislature from passing laws that “relate[] 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.” Baessler v.
Freier, 2011 WY 125, ¶ 16, 258 P.3d 720, 726 (Wyo. 2011) (quoting 73 Am.Jur.2d
Statutes § 3 (2001)). It is this meaning of the word “general” that is most likely what the
Constitution’s drafters intended with the term “general supervision.” The Superintendent can exercise “supervision” or “general oversight” over education in Wyoming but that supervision is explicitly restricted in that it may only be “general” and not encompass specific educational tasks best left to teachers and administrators.
Using a dictionary from the 1970s, Superintendent Hill defines “general” to mean
“[u]niversal or unbounded” and “comprehending the whole or directed to the whole.”
Appellants’ Br. at 22. This definition, which is excerpted from a larger string of alternate definitions not acknowledged in her brief, does not accurately define the word “general”
39 as it was commonly used when the Wyoming Constitution was written almost one hundred years earlier. Dictionaries from the late 19th century supply a different meaning:
“general” implies a broad authority, but one that is limited to generalities and does not extend to specifics. The dictionaries from the late 19th century vary, but this seems to be the first, primary definition. General is “relating to a genus or kind; pertaining to a whole class or order; belonging to a whole rather than to a part; as, a general law of the animal or vegetable economy.” Chauncey A. Goodrich & Noah Porter, Webster’s Complete
Dictionary of the English Language 563 (1886) (first definition) (italics in original).
Another dictionary provides that General means “Relating to the whole of a thing, class, genus or kind, as distinguished from ‘special,’ which means something limited to a particular purpose, occasion or thing.” Stewart Rapalje & Robert L. Lawrence, A
Dictionary of American and English Law 564 (first definition) (1888). The first Black’s
Law Dictionary gives a sense of the various meanings that “general” might have, but its definition is consistent with the State’s argument: “general” means not only ‘broad’ but
‘broad’ without a view to the specifics of the matter.
General: Pertaining to, or designating, the genus or class, as distinguished from that which characterizes the species or individual. Universal, not particularized; as opposed to special. Principal or central; as opposed to local. Open or available to all, as opposed to select. Obtaining commonly, or recognized universally; as opposed to particular. Universal or unbounded; as opposed to limited. Comprehending the whole, or directed to the whole; as distinguished from anything apply to or designated for a portion only.
Black’s Law Dictionary 533-34 (1891). The State of Wyoming believes the best definition of “general” in “general supervision” is one that parallels the definition of
40 “general” in “general law”: supervision at a high level over such issues as apply to all schools in Wyoming. The Constitution’s grant of “general supervision,”—far from being power over the entirety of education in the state—is a grant of limited responsibility and only available in areas where no specific supervision is to be had.
As Superintendent Hill suggests, the term supervise means “to have general oversight over, to superintend or inspect.” Appellants’ Br. at 22 (quoting Black’s Law
Dictionary 1607 (4th ed. 1951)). This is not materially different from the definition of
“supervision” in Webster’s Dictionary in 1881, which was “[t]he act of overseeing; inspection; superintendence.” Webster’s 1329 (1886).9
Reading the term “general” to mean “universal or unbounded,” as Superintendent
Hill proposes, would be redundant with her own definition of “supervision.” The framers of the Constitution provided that the Superintendent would be entrusted with “general supervision.” If Superintendent Hill’s definitions are both correct, then the framers wanted the Superintendent to have “general, general oversight.” Put another way, her reading of the phrase “general supervision” has the same meaning as if the framers said only “supervision” of the public schools and left out the word “general” entirely. But see
9 The other 19th century legal dictionaries do not define “supervision” or “supervise.”
However, these dictionaries do define “supervisor” as “surveyor,” which is closer to the
State’s vision of the meaning of “general supervision.” See Rapalje & Lawrence at 1240
(Supervisor is “A surveyor or overseer; a highway officer” while noting that it can also be the chief official of a local town in some States); Black’s Law Dictionary 1139 (1891).
41 Hamlin v. Transcon. Lines, 701 P.2d 1139, 1142 (Wyo. 1985) (“[W]e recall the elementary rule of statutory interpretation that all portions of an act must be read in pari materia, and every word, clause and sentence of it must be considered so that no part will be inoperative or superfluous.”)
The better interpretation of “general supervision,” which gives meaning to both words, is as a limitation on the Superintendent’s authority. Of course, as this Court has noted, the Wyoming Legislature has broad authority over education. See Washakie Cnty.
Sch. Dist. No. 1 v. Herschler, 606 P.2d 310 (Wyo. 1980) (interpreting Wyo. Const. art. 7,
§ 1). Nothing in the State’s interpretation of “general supervision” precludes implementation of the general laws of Wyoming by the Governor and the Superintendent that are passed pursuant to other constitutional authorities. Rather, the meaning of the phrase “general supervision” refutes the assertion that article 7, section 14 of the
Wyoming Constitution grants pervasive, inherent authority to the Superintendent.
The remainder of the first clause does not convey the additional meaning that
Superintendent Hill suggests. The general oversight of the public schools “shall be entrusted to” the Superintendent of Public Instruction. It is not clear how Superintendent
Hill believes the word “entrusted” gives her office pervasive authority over education that cannot be modified by the Legislature. “Entrust” is not defined in the first Black’s Law
Dictionary, but the Webster’s Complete Dictionary from the time of the Constitution defines the word as a synonym of “intrust” which meant “to deliver in trust; to consider to the care of; to commit to another with confidence in his fidelity; as, to intrust a servant with one’s money or goods, or to intrust money or goods to a servant.” Webster’s
42 Complete Dictionary 712 (1886) (italics in original). It is conceivable that Superintendent
Hill believes, although she does not directly argue this point, that her office must have pervasive power because she is a fiduciary trustee for the education of Wyoming students. The Wyoming Supreme Court, however, has rejected reading such a common law—or fiduciary—trust obligation into the Constitution. When construing how
Wyoming must manage its school trust lands, the Court concluded that the responsibilities for trust lands “are governed by the statutes and not by common law trust principles.” Riedel v. Anderson, 2003 WY 70, ¶ 41, 70 P.3d 223, 235 (Wyo. 2003). The same logic applies to the term “entrusted” in article 7, section 14. The office of the
Superintendent is “entrusted” with general oversight of the public schools to the extent that the Superintendent is to carry out the responsibilities created by statute. Nothing in the term “entrusted” should be read to create additional, pervasive inherent duty in the office.
Nor does the definition of “to” provide textual support for Superintendent Hill’s argument for broad inherent power given exclusively “to” her office, although one must look at the full definition of “to” provided by Black’s Law Dictionary, rather than the abbreviated definition quoted in her brief. Appellants’ Br. at 23. The Fourth Edition of
Black’s Law Dictionary published in 1951—the one Superintendent Hill cites—relates to circumstances when the word “to” describes the boundary of a parcel of land (e.g., the southern boundary of Blackacre runs west “to” the large gray rock but does not include that same rock): “This is ordinarily a word of exclusion, when used in describing premises; it excludes the terminus mentioned.” Black’s Law Dictionary 1658 (4th ed.
43 1951). The word is not a broad “word of exclusion” that means the framers must have intended exclusive duties for the office of Superintendent. Moreover, if the rest of the first clause of article 7, section 14 does not provide the exclusive authority that
Superintendent Hill claims, then the word “to” cannot alter this conclusion.
In summary, the text of the first clause of article 7, section 14, which entrusts the
Superintendent of Public Instruction with “the general supervision of the public schools” is not an implicit limit on the authority of the Legislature to “prescribe by law” the power of the office of Superintendent. The terms “general supervision,” “entrusted,” and “to” do not convey pervasive, inherent, or exclusive authority.
B. Wyoming’s constitutional debates show that the Framers thought the Superintendent’s authority would be provided by statute.
The constitutional debates over the authority of the Superintendent are consistent with the State’s interpretation of article 7, section 14. During the debates on the
Wyoming Constitution, the authority of the Superintendent was discussed only once, but the comments suggest that the framers thought the Legislature would provide the
Superintendent’s powers and duties. When considering article 4, section 13 of the
Constitution, which provides the initial salaries for elected officials, a delegate suggested that the position of State Auditor and the position of Secretary of State should be combined to save money. After that amendment failed, the delegate pointed out that the
Auditor was scheduled to make $2,000 per year, while the Superintendent of Public
Instruction was to make only $1,500. The convention debated whether to raise the salary of the Superintendent or reduce the salary of the State Auditor.
44 First, the delegates agreed that the actual duties of the Superintendent, at the time of the creation of the State of Wyoming, were extremely modest:
Mr. RINER. Until otherwise provided by law, this you will notice is simply for the present. Considering the duties of our present superintendent of public instruction I think the salary is sufficient, and it leaves it in the power of the legislature in case the duties of the office should increase, to increase the salary and make it a proper amount.
Journals and Debates of the Constitutional Convention of the State of Wyoming 464
(1893). The delegates then debated whether to increase the Superintendent’s duties in the
Constitution itself by making that office also, as a matter of law, the President of the
University of Wyoming. They ultimately concluded that this would be too much authority and would dilute this individual’s focus on primary education. It was then that the delegates specifically discussed the authority of the Superintendent:
Mr. HAY. I would like a little information as to the duties of the superintendent of public instruction. As I understand it, he only gets about five hundred a year now, and it seems to me for what he does he is pretty well paid at that. If he is going to be ex-officio president of the university it might be different, but simply for the superintendent I think two thousand dollars is too much.
Mr. BROWN. I move to strike out the word “and” in the second line, in the third line strike out all after the word “auditor” down to the words “state treasurer,” and in the fifth line strike out the words “fifteen hundred,” and insert “two thousand.” If the duties of the superintendent of public instruction are to be the same as they are now, I agree with my friend that five hundred dollars is too much, but if the duties of the superintendent of public instruction are to be as they shall be made by law, two thousand dollars is too small. When a man goes over this territory and performs the duties of his office as they should be performed, and as the law makes him perform them, take a man the most of his time. And he will do well if he puts in all his time and has time for the work. The reason I made this motion is that I think all of these officers should be paid the same salary. Why should the auditor receive more than the treasurer? They should have the same salary, nothing less surely.
45
Mr. HOYT. If I may be permitted on this subject, as chairman of committee on education, and other matters on education, which committee has already sent in its report, I desire to say that according to the plan and purpose of that committee, which I trust will be approved by the convention, they propose that the superintendent of public instruction shall be a member of the board of public lands, he shall have to do with the managements of these lands, that is the large body of lands that will come to the state in the interests of schools and education, 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. There will no doubt in every county be a county superintendent with whom he will have official relations, 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, and to oversee the whole work of education in the state. According to the report of the committee he would be a member of the state board of health, to inspect the schools so as to bring the public schools under regulations of health, and promote in a general way education in this state. He will therefore be the head of education in this state. And I think should have a salary suitable to the needs of the office.
Mr. CHAIRMAN. The question is on the amendment to increase the salary of the state treasurer and state superintendent of public instruction to two thousand dollars. Are you ready for the question? All in favor of the motion will say aye; contrary no. The ayes have it; the motion prevails. Sec. 13 Any amendments? If not the section will stand approved as read. Sec. 14.
Journals and Debates of the Wyoming Constitutional Convention at 464-65. As this discussion demonstrates, the precise concern that the delegates raised was whether the
Superintendent’s existing duties justified much salary at all, and they concluded that the duties were not even enough to justify a salary of $500 per year. What justified a higher salary to Mr. Brown, the delegate who moved to raise the initial salary of the
Superintendent, was “if the duties of the superintendent of public instruction are to be as they shall be made by law” Id. (emphasis added). The debate, in its full context, is telling because the delegates clearly envisioned an important role for the Superintendent,
46 but the role was to carry out statutory duties the Legislature would later assign to that office. The Superintendent was to “promote in a general way education in this state,” not enjoy inherent constitutional power over the education of children throughout
Wyoming. Id. (statement of Mr. Hoyt) (emphasis added).
Another discussion at the constitutional convention leads to the same interpretation. Superintendent Hill’s brief includes a quotation from the constitutional debates in which the delegates discussed the governance of the University of Wyoming.
Appellants’ Br. at 27. The quoted language is not relevant, and her brief does not explain why a discussion about the governance of the University of Wyoming affects the
Legislature’s authority to delineate the powers and duties of the Superintendent. The paragraphs prior to the quoted language about the Governor make clear that the discussion was about the University of Wyoming’s Board of Trustees, established under article 7, section 17, not about the Superintendent’s authority under article 7, section 14.
Journals and Debates of the Wyoming Constitutional Convention at 743-44. What
Superintendent Hill fails to note, even though the State noted it in the district court, is that the framers discussion turned next to the final sentence of the article that deals with the
UW Board of Trustees, which provides that “[t]he duties and powers of the trustees shall be prescribed by law.” Wyo. Const. art. 7, § 17. While the actual conversation surrounding this comment is difficult to follow, the gist of the debate is that the language
“as prescribed by law” in this section provides broad power to the Wyoming Legislature to increase or decrease the university trustees’ duties, just as the State of Wyoming interprets the similar language in article 7, section 14 as to the Superintendent:
47 Mr. BROWN. In looking at this section I find the following words: “The duties and powers of the trustees shall be prescribed by law.” This leaves it for the legislature to limit their powers, to increase them, or anything else, and covers entirely the proposition which Governor Hoyt was about to offer.
Journals and Debates of the Wyoming Constitutional Convention at 747.
In summary, Superintendent Hill’s argument that the Wyoming Constitution provides pervasive inherent power to the Superintendent is not only inconsistent with the text of the provision, but it is inconsistent with the framers’ understanding of this language at the time it was adopted as well as with the meaning of “prescribed by law” as considered in other sections of the Wyoming Constitution.
C. During the first twenty-five years after statehood, no Superintendent claimed to have been granted pervasive, inherent authority by the Constitution.
The initial implementation of the Superintendent’s office also argues against finding the pervasive, inherent authority that Superintendent Hill would seize. The State has already summarized the early concerns raised about Wyoming’s educational system.
“During the Territorial Period [the office of the Superintendent of Public Instruction] was ex officio, invested with no real power, and, one might infer from reading reactions to it during this period, very little influence.” Fromong at 158.
If the Wyoming Constitution itself provided broad, inherent authority for the general supervision of the public schools, as Superintendent Hill claims, one might expect some evidence to this effect during the first twenty-five years after statehood when the framers implemented the new constitution. Nothing of the sort can be found in the historical record. As Fromong notes, the Superintendent’s powerlessness “was 48 perpetuated in the period of statehood.” Id. Although the Superintendent had statutory duties, “[n]one of these duties, however, represented an extension of authority; they were merely an increase in responsibility.” Id. at 159. In 1915, the School Code Committee report concluded that the “powers and the duties” of the Superintendent were “general and indefinite and [gave] the State superintendent little authority in the educational development of the State.” Monaghan & Cook at 22. And the Superintendents, in their biennial reports to the Legislature, decried this lack of authority. See C.H. Parmelee, State of Wyoming Biennial Report of the Superintendent of Public Instruction 5-6 (1898), quoted in Fromong at 159 (noting that just as every “previous report of my predecessors” was late, his report was late due to what “appears to be great indifference on the part of the officers [in the counties] charged with making reports, and often carelessness combined with it”).
All Superintendents have enjoyed the same constitutional authority as the current
Superintendent retains, but none of them appear to have believed that the constitutional language—as opposed to statutory powers and duties—represented a “general superintending control” over education in Wyoming. Appellants’ Br. at 30.
D. The powers and duties that Superintendent Hill suggests are core powers of her office are recent grants of authority from the Legislature and not duties that Superintendents have historically exercised.
Superintendent Hill does not discuss all of the powers and duties that were removed by the Legislature in 2013. She does suggest that some of these duties were
“critical aspects of general supervision” that cannot be given to any office other than her
49 own. Appellants’ Br. at 27. But the powers and duties identified in her brief as
“meaningful abilit[ies]” that the Legislature has removed were first assigned to the
Superintendent by the Legislature only in the past twenty-five years. Superintendent Hill asserts a constitutional entitlement “to manage or control data collection,” Appellants’
Br. at 28, but “the authority to assess and collect student educational assessment data from school districts, community colleges, and the University of Wyoming” was not given to the Superintendent until 1989. See 1989 Wyo. Sess. Laws 335 (Ch. 183, § 1 creating Wyo. Stat. Ann. § 21-2-202 (a)(xiv)). Superintendent Hill argues that general supervision includes the authority “to distribute state funds to local districts.” Appellants’
Br. at 28. Superintendent Hill may be referring to the Legislature’s allocation of state funds through the education resource block grant, or she may be referring to the federal funds that the Department of Education transmits to local school districts. Both authorities are recent, however. The office of Superintendent was given responsibility for the educational resource block grant in 2006. 2006 Wyo. Sess. Laws 143-44 (Ch. 37, § 1 creating Wyo. Stat. Ann. § 21-2-202(e)). Responsibility for federal funds was not given to the Superintendent until 1994. See 1994 Wyo. Sess. Laws 79-80 (Ch. 17, § 1 creating
Wyo. Stat. Ann. § 21-2-202(a)(xix)). It was the State Board of Education, not the
Superintendent, which the Legislature authorized in 1921 to accept federal funds for vocational training. See 1921 Wyo. Sess. Laws 145 (Chap 109, § 3). The State Board of
Education was also the entity that the Legislature authorized in 1959 to accept federal funds under the National Defense Education Act. See 1959 Wyo. Sess. Laws 46 (Ch. 49,
§ 2). And the State Board of Education was, until 1994, “the state agency to accept all
50 federal funds for aid to education.” 1987 Wyo. Sess. Laws 499-500 (Ch. 190, § 2 creating
Wyo. Stat. Ann. § 21-2-304(b)(xiii)).
The Superintendent’s authority over education for special needs children was provided by the Legislature in 1994; the authority to establish a statewide accountability system for education was granted in 1997 with a significant expansion in 2011; the supervision of vocational and technical education was created in 2003. See 1994 Wyo.
Sess. Laws 78 (Ch. 17, § 1 creating Wyo. Stat. Ann. § 21-2-202(a)(xviii)); 1998 Wyo.
Sess. Laws 22 (1997 Special Session) (Ch. 3, § 301 creating Wyo. Stat. Ann. § 21-2-
202(a)(xxi)) & 2011 Wyo. Sess. Laws 491-95 (Ch. 184, § 1 creating Wyo. Stat. Ann. §
21-2-204 entitled the “Wyoming Accountability in Education Act”); 2003 Wyo. Sess.
Laws (Ch. 184, § 2 creating Wyo. Stat. Ann. § 21-2-202(a)(xxiii)-(xxvi)).
Superintendent Hill has never specifically identified which duties she believes are inherent to “general supervision.” The recent provenance of the ones she mentions, however, highlights the lack of historical research in her brief, and, more importantly, it suggests that—at least until 1989—no one thought that the office of Superintendent exercised any of these powers that Superintendent Hill now claims are essential.
Superintendent Hill’s suggestion that the 2013 Education Act rescinded long-standing core powers of her office contradicts the overwhelming weight of historical fact.
For the Wyoming Constitution to guarantee what Superintendent Hill wants— exclusive control over education, including any authority given to the Wyoming
Department of Education—the Wyoming Constitution would need to be drafted differently. In the district court, one of Superintendent Hill’s key arguments was that
51 Wyoming courts should adopt the same result that was reached in recent litigation in
North Carolina over the power of that state’s Superintendent of Public Instruction. See
Appellants’ Appendix 1 (Appellants’ Complaint at Appendix B); Appellants’ Appendix
10 at 24 (describing North Carolina case as “persuasive precedent” in Superintendent
Hill’s favor). A state district court in North Carolina, in a 2009 unpublished order, held that the North Carolina Board of Education could not create a new position to administer the Department of Education in that state. Atkinson v. State, Order, No. 09CVS006655
(N.C. Super. Ct. July 17, 2009) (accessible at http://www.ncicl.org/assets/uploads/brief/
Order07.17.2009.pdf).
This North Carolina case has disappeared from Superintendent Hill’s brief before this Court. This may be because, as the State explained below, the North Carolina
Constitution in 2009 is quite different from Wyoming’s Constitution, and the differences are instructive. In 1942, North Carolina amended its constitution to give “the general supervision and administration of the schools” to the State Board of Education. See
Albert Coates, Amendments to the Constitution of North Carolina Proposed by the
General Assembly, 1937-1957: Text and Commentary at 9-12 (1957), available at http://archive.org/details/amendmentstocon00nort (last visited June 30, 2013). But the same amendment also provided that “the State Superintendent of public instruction shall have general supervision of the public schools.” Id. at 10. This created “some uncertainty” as to what the roles of the two entities should be. A Survey of Statutory
Changes in North Carolina in 1941, 19 N.C. L. Rev. 435, 465 (1940-41). Education leaders opposed the constitutional amendment, after its adoption, because the Board was
52 composed largely of non-educators from the ranks of finance and business. Coates at 18-
19 (excerpt from Popular Government at 15-16 (June 1943)). To resolve this conflict, the
North Carolina legislature returned in 1943 and proposed an amendment—ultimately adopted—that altered the selection of the State Board of Education members. That amendment also provided that the Superintendent “shall be the administrative head of the school system and secretary of the board” and eliminated the language that the
Superintendent would have “general supervision of the public schools.” Coates at 17.
In 1971, the North Carolina constitution changed again and provided that the State
Superintendent “shall be the secretary and chief administrative officer of the State Board of Education.” 1971 N.C. Const, art. IX, § 4. It was this very specific amendment which, in 2009, a state district court interpreted to mean that the State Superintendent in North
Carolina must manage and administer the operations of that state’s Board of Education, in lieu of a professional administrator that the Board had attempted to install. Atkinson v.
State, Order, No. 09CVS006655 (N.C. Super. Ct. July 17, 2009) (available at http://www.ncicl.org/assets/uploads/brief/Order07.17.2009.pdf).
If Wyoming’s article 7, section 14 stated that the Superintendent administers the
Department of Education, then the outcome of this case would be the same as the decision in Atkinson v. State. But article 7, section 14 tracks the 1941 Constitution of
North Carolina, not the amended version upon which the North Carolina court correctly relied. Wyoming has never eliminated the “general supervision” clause and has never replaced it with express language that guarantees that the Superintendent will be either the chief administrator of the Department of Education or the chief administrator of the
53 Board of Education. If the people of North Carolina had thought that their constitution’s earlier language on “general supervision” guaranteed to the Superintendent administrative control of the Board of Education, there would have been no reason to amend it in 1943 and 1971. Likewise, if the Wyoming Legislature thought that the
Superintendent was guaranteed inherent administrative control over the Wyoming
Department of Education, there was no reason for it to enact a statute in 1969 that expressly provided that the Superintendent would be the “administrative head and chief executive officer” of the Department. 1969 Wyo. Sess. Laws 149 (Ch. 111, § 9). But in both cases, the decision maker—the people of North Carolina, and the people of
Wyoming acting through their Legislature—concluded that their constitutional entrustment of “general supervision” to the Superintendent did not provide any administrative authority over the Department of Education. When, in the 2013 Education
Act, the Wyoming Legislature retracted the Superintendent’s statutory authority to administer the Department and returned the Superintendent to essentially the pre-1969 set of statutory duties, the Legislature’s prescription comported with a correct reading of article 7, section 14.
Finally, nowhere in Superintendent Hill’s brief does she acknowledge the existence of the State Board of Education or the State School Facilities Commission.
Both of these entities are legislative creations; the Wyoming Constitution mentions neither. But if this Court were to adopt the arguments that “general supervision” of the public schools creates pervasive authority over education that is “exclusively vested” in the Superintendent, it would be difficult to imagine how creating these entities could be
54 constitutional. But see Campbell County School Dist. v. State, 2008 WY 2, ¶134, 181
P.3d 43, 83 (Wyo. 2008) (Campbell IV) (“Now that we have found this capital construction statutory and regulatory scheme [adopted by the Legislature and the School
Facilities Commission] constitutional, we believe that a new approach for fixing or replacing immediate need facilities is now available to school districts that should swiftly resolve SFC delays.”) This Court should seek some explanation as to why Superintendent
Hill’s claims of exclusive authority do not undermine the constitutional basis for an agency that has been accepted by this State for almost one hundred years. See 1917 Wyo.
Sess. Laws 202 (Ch. 120, § 4) (creating State Board of Education). Instead,
Superintendent Hill presents a vision of the Wyoming Constitution that undermines the
State Board and the School Facilities Commission and, if accepted, risks re-opening implementation of the school finance reform ordered by this Court over the past thirty years.
E. Even were this Court to hold that the Constitution grants inherent authority to the office of Superintendent, the current statute preserves sufficient power so as to satisfy the Constitution.
Finally, besides an understanding of the intent and scope of article 7, § 14, this
Court must account for the content of the Education Act itself. Superintendent Hill has brought a facial attack on the constitutionality of a statute, so there is no evidence properly before this Court about how the Education Act has been applied. Only the text of the Act and the tools of statutory construction are necessary. To carry the heavy burden of facial unconstitutionality, one might expect the Superintendent’s brief to
55 address the core of the statute at issue, but it does not. Superintendent Hill fails to acknowledge that the Legislature incorporated the language of article 7, § 14 into the
Education Act. The Constitution provides:
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.
Wyo. Const. art. 7, § 14. As modified by section 2 of the Education Act, section 201(a) of article 2, title 21 reads:
The general supervision of the public schools shall be entrusted to the state superintendent as prescribed by law.
2013 Wyo. Sess. Laws 3 (Ch. 1, § 2) (modifying Wyo. Stat. Ann. § 21-2-201).
To overcome this provision, Superintendent Hill needs to show that this parallel statutory language is some sort of sham that will be ignored by those charged with its implementation. But such a claim must overcome the presumption that public officials do their duty. State ex rel. Schieck v. Hathaway, 493 P.2d 759, 761 (Wyo. 1972) (“There is a presumption that officials have properly performed or will properly perform their duties.”). In the alternative, Superintendent Hill might attempt to show that other portions of the Education Act contradict the Legislature’s extension of general supervision to the
Superintendent to such an extent that the statute simply collapses on itself. This argument is not in her brief. Moreover, because Superintendent Hill, as the challenger, has not shouldered this burden, the State is not in a position to make a rebuttal. Suffice it to say, however, that even if this Court were to assess the Education Act for hopeless internal inconsistency, it would be bound by several very strong canons of construction—even
56 beyond the general presumption of constitutionality—that militate against such a finding.
The Education Act, a statute, must also be interpreted to avoid constitutional infirmity.
See, e.g., In re Guardianship of MEO, 2006 WY 87, ¶ 19, 138 P.3d 1145, 1151 (Wyo.
2006). Every provision of a statute has meaning and relevance. See, e.g., Redco Const.,
¶ 26, 271 P.3d at 416. Superintendent Hill has not even attempted to meet the burden of a facial challenge to show that the Legislature’s grant of “general supervision” in the
Education Act is illusory.
In addition, the duties of the office of Superintendent after the 2013 Education Act are far from meaningless. The Superintendent continues to serve on the State’s Board of
Land Commissioners, Loan and Investment Board, the Board of Trustees of the
University of Wyoming, and the State School Facilities Commission. In 1915, these duties consumed from one-third to one-half of the time of the Superintendent and her four employees. Monaghan & Cook at 21. The remaining duties of the Superintendent, while fewer than those exercised by the Superintendent in 2012 (which appears to have been far and away the most statutory authority any Superintendent ever exercised), are not significantly different from those exercised by the Superintendent at statehood. The
Legislature has directed the Superintendent to report by October 15th of each year on the general status of the public schools. 2013 Wyo. Sess. Laws 3 (revised Wyo. Stat. Ann §
21-2-201(b)). At statehood, the Superintendent was to report to the Legislature on the first day of each session “exhibiting the condition of the public schools.” See 1873 Wyo.
Terr. Laws 240 (Ch. 58, § 2). The Legislature has directed the Superintendent to identify the professional development needs of teachers and provide a plan—and up to five
57 workshops—to meet these needs. 2013 Wyo. Sess. Laws 4 (Ch. 1, § 2 revised Wyo. Stat.
Ann. § 21-2-201(c)(vi)). At the time of the Constitution’s adoption, the Superintendent was to hold a territorial teachers’ institute once a year “for the instruction and advancement of teachers.” See 1873 Wyo. Terr. Laws 240-41 (Ch. 58, § 3). The
Legislature has directed that the Superintendent continue the “general supervision of the public schools,” and the Legislature has provided authority to adopt such rules “as may be necessary for the proper and effective general supervision of the public schools” unless the Legislature has given responsibility over that area of law to the State Board of
Education or the new Director of the Wyoming Department of Education. 2013 Wyo.
Sess. Laws 3 (Ch. 1, § 2 revised Wyo. Stat. Ann. § 21-2-201(a) & (c)(i)). The
Superintendent had rulemaking authority for the school laws he administered in 1890.
See 1873 Wyo. Terr. Laws 240 (Ch. 58, § 2).
In addition, the Superintendent now exercises authority unknown at the time of
Statehood. The Superintendent has authority over the State’s Teacher of the Year
Program, rules for the seclusion or restraint of students, efforts to minimize head injuries from school athletics, and the use of toxic chemicals in schools. 2013 Wyo. Sess. Laws 3-
4 (Ch. 1, § 2 revised Wyo. Stat. Ann. § 21-2-201(c)(ii)-(v)). The Superintendent is to prescribe the application for charter school approval—as well as rules for considering a charter school application—to be used by local school districts. Wyo. Stat. Ann. § 21-3-
307(d). Thus, while the 2013 Legislature did rescind day-to-day management duties over the Department of Education that prior Legislatures had only recently assigned to the
Superintendent, the 2013 Legislature left a substantial portfolio on the desk of this and
58 future Superintendents, a portfolio well in excess of what might be posited as a constitutional minimum.
III. The Wyoming Constitution’s guarantee that all power is inherent in the people and that they may alter their government does not prevent the Wyoming Legislature from using its authority to modify the powers of the Superintendent by statute. A. The Constitution specifically envisions that the Legislature can change the powers of the Superintendent by statute.
In Superintendent Hill’s second constitutional argument, she asserts that the
Education Act violates the “inalienable and indefeasible right” of the People of Wyoming
“to choose their governance.” Appellants’ Br. at 32. While Superintendent Hill is undoubtedly correct that a constitutional amendment is required to amend the Wyoming
Constitution, her argument to this Court presumes that she has already proven the arguments underlying her entire case: that the Legislature’s adoption of the Education
Act exceeds its authority under the Constitution. If the State is correct that the Education
Act is a proper exercise of the Wyoming Legislature’s authority to prescribe the powers and duties of the office of Superintendent, then there is no need for a constitutional amendment. Conversely, if Superintendent Hill is correct that she is, by constitutional mandate, the “chief administrative officer of the Department of Education,” then any citation to Wyo. Const. art 1, § 1 is similarly superfluous.
Nor does the State agree that Superintendent Hill speaks for the people of
Wyoming simply because the office of Superintendent is elected. All members of the
Wyoming Legislature are elected and the Governor is elected, and their actions are not undemocratic and contrary to the will of the people. A majority of these legislators have
59 shown their disagreement with Superintendent Hill’s view of the optimal extent of the
Superintendent’s duties, and this solemn expression of the majority’s will is democratically legitimate. Legislators are the state government officials who are closest to the people and their desires. Although not specifically discussed by our own supreme court, other states’ courts have made this very point:
In framing this issue, Appellants have ignored the fact that of our three governmental branches, the legislature is closest to and best represents the people. Deference must be given to the peoples’ right to govern themselves through the legislature and the courts should not supervise that process. This court may step in only when the legislature, beyond a reasonable doubt, has overreached its constitutional boundaries, otherwise the legislature’s power is plenary.
Indep. Cmty. Bankers Ass’n of S.D. v. State ex. rel. Meierhenry, 346 N.W.2d 737,
745 (S.D. 1984). See also Leyen v. Dunn, 461 S.W.2d 41, 44 (Tenn. App. 1970) (“The legislature constitutes the branch of government closest to the people, most cognizant of their needs, and more responsive to their demands.”).
Superintendent Hill appears to raise, obliquely through two California cases, an eighteenth century common law doctrine that is simply inapplicable in this case. Her brief cites two cases in which a California court concluded that certain duties were inherent in the very notion of a “tax collector” and therefore could not be re-assigned by the
California Legislature. See Appellants’ Br. at 33 (citing Anderson v. Super. Ct. of Fresno
Cnty., 907 P.2d 1312, 1155-56 (Cal. 1995). In doing so, Superintendent Hill misapplies a common law doctrine related to certain officials. When an office has characteristic common law duties, such as an auditor or attorney general, some courts have refused to allow the removal of the characteristic powers and duties of that office. The State
60 Superintendent of Public Instruction is not a common law official, and there is no basis to infer what duties should be considered core. Indeed, the best evidence of this is that the framers left the powers of the office of Superintendent to the Legislature for further definition.
B. The Constitution does not require that the Legislature delay any changes to the powers of the Superintendent until after the incumbent leaves office.
Within her argument under article 1, section 1, Superintendent Hill asserts that she can know—and therefore represent—the will of the people. She argues, without citation, that voters have a judicially enforceable “real and reasonable expectation” to specific policies from their elected officials. Appellants’ Br. at 31-32. Because the office of the
Superintendent no longer wields the duties that it had at the time of the general election in
2010, the Superintendent argues that the voters have been denied the effect of their votes.
First, this argument proves too much. In her brief, Superintendent Hill asserts that voters are entitled to the guarantee that the powers of the Superintendent are not
“radically change[d]” from those that existed at the time of her election. Appellants’ Br. at 37. Such a breathtaking argument, if accepted, would render the legislative power virtually ineffective. For every new power that, after debate, the Legislature provides to state elected officials, including the Governor, or withdraws from them, or modifies, a litigant could demand that the courts enjoin these changes because that particular litigant, as a voter, did not think the official’s authority worked that way when casting a vote for that office. Nor is there any appreciable limit on how large a change must be before it would violate the “electoral voice.” Voters cast secret ballots, and the critical issues for a 61 particular voter may not be widely known. Under Superintendent Hill’s theory, voters are encouraged to waive their right to a secret ballot and argue that the alteration in an elected official’s powers is not lawful because some voters did not think that the statutes worked that way when the sitting official was elected.
This argument has not been made often, but the State has identified one case that dismisses it directly. In the 1980s, the California Legislature authorized the creation of an appointed court executive officer for its superior courts, despite language in the
California Constitution that “[t]he county clerk is ex officio clerk of the superior court in the county.” In the resulting litigation, the California Supreme Court first concluded that the county clerks had no inherent constitutional authority and the new positions were constitutional, Zumwalt v. Super. Ct., 776 P.2d 247, 250 (Cal. 1989), but then that Court was asked to resolve whether the suspension of a county clerk’s duties needed to be prospective to the next elected term. After reviewing its case law, the California Supreme
Court held that:
There is no authority for the broad proposition that duties assigned at election to any given office are unalterably vested in that elected official until the expiration of his or her term.
Anderson, 907 P.2d at 1316. Superintendent Hill has provided no reason for a different conclusion than the one reached in California.
Second, Superintendent Hill mistakes a voter’s stake in the voting process with the voter’s interest in the final result of the election. A voter’s intent at the time of election is not knowable: voters cast a secret ballot for the position of State Superintendent of Public
Instruction, and they may only cast a vote for a particular person, not for a particular
62 policy. The sort of evidence offered by Superintendent Hill in affidavits before the district court—affidavits from individual voters that describe how they voted and why they voted—is the type of inquiry that courts should avoid. The State of Wyoming cannot verify such information through other sources, nor can the State survey all other voters in
Wyoming to determine how they voted and why. If the courts entertained these kinds of claims, they would become ensnared in a recanvassing of past elections, with all voters becoming potential witnesses subject to compulsory judicial interrogation about their secret ballots.
Representative democracy is justified on the basis that elected officials must be free to apply thought to new challenges as they arise. Elected officials are accountable through the next, upcoming election, not through litigation about whether the previous election would have been different if a voter had known how a candidate’s powers and duties might be changed after taking the oath of office, or if the voter had known how the official would perform those duties. A voter must be allowed the opportunity to participate, but his or her vote does not create an expectation of a specific result, nor does it guarantee that elected officials will act in a particular manner.
In summary, the 2013 Education Act does not violate article 1, section 1 of the
Wyoming Constitution simply because it went into effect during the current term of the incumbent Superintendent.
63 IV. The Constitution expressly grants to the Legislature the authority to create the powers and duties of the Superintendent and the exercise of this authority does not violate the division of powers guaranteed by article 2, section 1 of the Wyoming Constitution.
Superintendent Hill’s claim that the Education Act violates the Wyoming
Constitution’s division of powers suffers from two fatal flaws. First, the argument is contrary to the text of article 2, section 1 of the Constitution, which contains an express exception allowing one branch to wield power over another if permitted elsewhere in the
Constitution. Second, this argument largely ignores and at best distorts this Court’s recent pronouncements on the division of powers with regard to education.
A. Separation of powers concerns cannot overcome the Constitution’s clear delegation of authority to the Legislature.
The Wyoming Constitution expressly considers that certain sections of that document may, by their nature, represent the assigning of a power from one branch to another. And the Constitution expressly affirms that such provisions are acceptable:
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 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.
Wyo. Const. art. 2, § 1 (emphasis added). As noted above, the language of the Wyoming
Constitution expressly permits the Legislature to “prescribe by law” the “powers and duties” of the State Superintendent of Public Instruction. Wyo. Const. art. 7, § 14. It is certainly true that this grant of power permits the legislative branch to dictate the authority of a member of the executive branch. But this fact alone does not violate the
64 explicit command of the Wyoming Constitution. For it to do so, Superintendent Hill must prevail on her argument that the Legislature has exceeded its authority under article
7, section 14, a provision of the Constitution that explicitly permits the Legislature to alter the powers and duties of the Superintendent.
B. Superintendent Hill’s understanding of the division of responsibility for education in Wyoming is directly contrary to this Court’s recent opinions.
The second flaw in Superintendent Hill’s argument on the division of powers is that it espouses a vision of the Constitution’s education-related sections that is expressly contrary to the decisions of the Wyoming Supreme Court. When discussing the authority of State officials, as opposed to local officials, Superintendent Hill describes our constitutional order as one of local control, with little input from the Legislature:
The framers knew they could place supervision of the 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.
Appellants’ Br. at 48. Superintendent Hill then goes on, when discussing whether the
Legislature has exceeded its permissible bounds of legislative power, to assert that the
Legislature may only influence education through funding decisions or by requiring a report from the Superintendent on educational progress. Appellants’ Br. at 52-53.
In the 1980s, 1990s, and 2000s, this Court resolved significant questions over the role of the Legislature, and the State of Wyoming more broadly, in the educational success of Wyoming students. To adopt Superintendent Hill’s constitutional allocation of
65 power over education, this Court would have to overrule its education jurisprudence of the past thirty years.
Superintendent Hill sees the Wyoming Constitution’s design for education as relying upon, at its core, local control of school decisions. “[T]he 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.” Appellants’ Br. at 48. But this Court has been explicit that the
Wyoming Legislature has a responsibility to ensure that educational opportunities are constitutionally adequate throughout the entire State. In Washakie County School District
No. 1 v. Herschler, it made clear that this obligation rested on the legislature, and county lines or other political distinctions provided no defense to inequality. Citing various educational provisions, including the Superintendent’s powers and duties, this Court stated:
These and other constitutional expressions should leave no doubt that the legislature has complete control of the state’s school system in every respect, including division of the state into school districts and providing for their financing.
Washakie Cnty. Sch. Dist. No. 1 v. Herschler, 606 P.2d 310, 320 (Wyo. 1980).
The Washakie decision is not limited to funding, as Superintendent Hill asserts.
This Court specifically held that the very existence of school districts was subject to the
Legislature’s authority. Moreover, this Court answered any lingering doubt over the meaning of Washakie in 1995. In Campbell County School District v. State, this Court
66 characterized Washakie as holding that the Legislature has broad authority not only for funding education but also for the management of education:
Washakie determined the plain meaning of our state constitution’s Education Article [Wyo. Const. art. 7, § 1] left no doubt the legislature completely controlled the state’s school system in every respect, and the matter of providing a school system as a whole and financing it is a responsibility of the legislature.
Campbell Cnty. Sch. Dist. v. State, 907 P.2d at 1270 (Campbell I) (citing Washakie, 606
P.2d at 320).
Moreover, Superintendent Hill’s belief that local control of education rests at the heart of our constitutional scheme was explicitly rejected in Campbell I. “Historical analysis reveals local control is not a constitutionally recognized interest and cannot be the basis for disparity in equal educational opportunity.” Campbell I, 907 P.2d at 1270.
This Court reaffirmed its decision six years later. “Campbell discussed this concept after deciding the term ‘local control’ could mean only a ‘local role’ in implementing a legislatively defined proper education.” State v. Campbell Cnty. Sch. Dist., 19 P.3d
518, 560 (Wyo. 2001) (Campbell II) (emphasis added).
Superintendent Hill does not cite to the Campbell I or Campbell II decisions. Her brief characterizes Washakie as “strictly concerned with the Legislature’s funding of schools throughout the state.” Appellants’ Br. at 45. Nowhere does she even acknowledge the existence of the State Board of Education or the State School Facilities
Commission. As noted at the beginning of this brief, Superintendent Hill carries a
“heavy” burden to demonstrate “beyond any reasonable doubt” that the Education Act is unconstitutional. To meet this burden, she offers a vision of education that is completely
67 divorced from the law of this State, as already interpreted by this Court, and she fails to identify controlling authority that would need to be overruled. Such thin argument cannot provide the basis for this Court to perform any constitutional interpretation, let alone interpretation that would conclude that Superintendent Hill has met the burden imposed upon her.
Superintendent Hill’s brief cites numerous provisions of the Wyoming
Constitution, asserting these provisions must be read in pari materia and that each provision fits together into a mosaic in which the Superintendent enjoys pervasive authority over education. Appellants’ Br. at 12-18. Superintendent Hill misunderstands the use of the in pari materia canon of interpretation, which looks to other provisions or other uses of the same phrase to interpret a particular provision or phrase. The canon is not a license to jumble provisions in the hope of creating a new vision of the
Constitution. Superintendent Hill’s interpretations are precisely the type of constitutional interpretation that Dworkin forbids. Her brief nowhere provides any serious, historical analysis on the cited provisions, and it misinterprets several. These provisions are not relevant to this Court on their own merit, and the State will not engage in this stream of consciousness constitutional interpretation. As one example, the Wyoming Constitution permits every person in “a civil office” to hold over until a successor is duly qualified.
Wyo. Const. art. 6, § 16. This article applies to every civil officer, including the numerous gubernatorial appointees who are not elected, as well as city appointees, so it is a mystery how this provision could create a presumption that “elected officials will represent the people in dealing with other branches of government.” Appellants’ Br. at
68 15. Moreover, the provision does not deal with what powers an office will have; the provision simply describes when a person may continue to exercise the powers of an office after his or her term has expired. Superintendent Hill still serves as the State
Superintendent of Public Instruction, albeit with fewer powers and duties than prior to
2013, and the State anticipates that Superintendent Hill will serve until the end of her term in January 2015.
In summary, the Education Act raises no division of powers concerns.
V. The Wyoming Legislature has not passed an impermissible “special law.” A. The Education Act is a generally applicable statute, and it is constitutional under this Court’s prior decisions.
The Wyoming Constitution prevents the Legislature from becoming involved in individual disputes by anointing individual winners or losers among a class of constituents. The Constitution provides:
The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * 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.
Wyo. Const. art. 3, § 27 (uncontested provisions omitted for readability).
This Court discussed the origin of this provision in a 1951 decision. Pirie v.
Kamps, 229 P.2d 927 (Wyo. 1951). Justice Blume, speaking for the Court, noted that these provisions arose as courts and others recognized that “arbitrary, unwarranted and special acts not uniform in their operation” are inconsistent with “equality before the law” and the “due process of law.” Id. at 929. The framers of the Wyoming Constitution
69 recognized that, consistent with due process, laws should be “general in their operation” and “affect the rights of all alike.” Id. But “it is not always easy to determine” whether due process of law applies in a particular case as that term “is not susceptible of comprehensive definition.” Id. The provisions in the Wyoming Constitution against special laws in certain cases and against special privileges, immunities, and monopolies are, as this Court decided, simply restatements of the obligation that each individual is entitled to due process of law. Id.
The Education Act does not deny due process of law to Superintendent Hill or her co-litigants. The Wyoming Legislature has altered the powers and duties of an office of government. The office continues to exist, and the current Superintendent still holds office. Moreover, as the State has already demonstrated, the Legislature has the authority to alter the powers and duties of the office through a law. There simply is no serious claim that the Education Act is, on its face, a special or local law.
B. This Court has explicitly rejected Superintendent Hill’s argument that the “special law” limitations in the Wyoming Constitution reduce the Legislature’s authority over education.
In her brief, Superintendent Hill makes two arguments that the Education Act is an impermissible “special law” contrary to article 3, section 27. The argument first appears in her discussion of various education-related provisions. Appellants’ Br. at 41. In that section, she states that the special laws provision of the Wyoming Constitution—in particular its restrictions against special laws “providing for the management of the common schools” and laws “creating or prescribing the powers or duties of officers in counties, cities, townships or school districts”—enshrines local control of education as a 70 constitutional value. “Every educational enactment must be read in the light of this prohibition.” Id.
This Court considered and rejected this argument in Campbell I:
[Wyo. Const. art 3, § 27’s] enumeration of school management means only that if the legislature passes a law concerning management of common schools, it must be a general one applicable to all schools, not a special law. The section’s prohibition in this area must be read as a legislative restriction, not as constitutional recognition of an interest.
Campbell I, 907 P.2d at 1274. The Education Act affects the powers and duties of the office of Superintendent as they relate to all schools within Wyoming. No specific school or school district is identified and made subject to different supervision by state-level officials. Under Campbell I, this is enough to satisfy the Wyoming Constitution.
C. Superintendent Hill’s assertion that the Education Act is “personal” does not mean that the Legislature has enacted a “special law.”
Later in her brief, Superintendent Hill suggests that the Education Act is a special law because it affects her differently than her successors. Appellants’ Br. at 55. This is because she has fewer powers and duties during the last two years of her term, while future Superintendents will have fewer powers and duties for the duration of their service in office. It is not clear why this is an injury to the current Superintendent, who has had more authority than her successors will have. Generally speaking, litigants can only assert harm to themselves. It is for the State of Wyoming, parens patriae, to bring claims on behalf of other citizens of this State. Second, to the extent that Superintendent Hill is re-asserting her earlier argument that the Education Act cannot be effective during her
71 current term, then she is restating her argument against any legislative change that the
State rebutted earlier in this brief.
Finally, to the extent that Superintendent Hill argues that the law is a special law because it is “personal” to her, she is incorrect. Legislatures are often moved to action by a particular event, and they can even name a law after a specific individual who has come to their attention. But the nicknamed “Hill Bill” is no more a special law than the “Adam
Walsh Child Protection and Safety Act,” which was enacted by the United States
Congress to require the establishment of sex offender registries. See Pub. L. No. 109-248,
120 Stat. 587 (2006). The test of a special law is not how individual or special the circumstance may have been that spurred the Legislature to act, but instead, whether the law specially selects a target individual from a class, and treats that individual differently.
Baessler, ¶ 16, 258 P.3d at 726 (“A special law is a law that pertains to and affects a particular case, person, place, or thing, as opposed to the general public.”). Here, the office of Superintendent—like the offices of other elected officials—is in a class by itself, and it is not even listed as one of the persons or entities potentially protected by the constitutional prohibition against special or local laws. Wyo. Const. art. 3, § 27.
Nor is the speed of the legislative process a subject for judicial review, either as evidence of a special law as Superintendent Hill suggests, or under any other constitutional section. Appellants’ Br. at 58. “The haste with which an act is passed cannot be considered in determining its constitutionality and the court will not look into motives, wisdom or haste connected with the passage of statutes; those matters are left to
72 the legislature.” Indep. Cmty. Bankers Ass’n of S.D. v. State, 346 N.W.2d at 745. As stated by Justice Van Orsdel of this Court in 1905:
If a legislative enactment violates no constitutional provision or principle, its existence as a statute of the state, so far as the courts are concerned, is conclusive evidence of the justice, propriety, and policy of its passage. These are questions entirely with the legislative department of the government, and upon which the judicial department has no power to act. If a statute has been passed improvidently, the responsibility is with the Legislature, and not with the courts.
Mau v. Stoner, 83 P. 218, 222 (Wyo. 1905) (opinion on rehearing).
In summary, Superintendent Hill’s argument about the Constitution’s special law prohibition is an unwarranted detour from the real issues in this case. The ambit of the
Superintendent’s duties, and the authority of the Legislature to prescribe those duties under article 7, section 14, is the crux. If this Court placed any credence on the special law argument, it would only set up a conflict between the two provisions, and even worse, incite future special law litigation whose mischief can scarcely be overestimated.
CONCLUSION
Superintendent Hill asks this Court to limit the Legislature’s authority over education in Wyoming through a facial challenge to constitutionality of the very existence of the Director of the Wyoming Department of Education. Although this Court demands “appropriate constitutional analysis, legal authority, or cogent argument” on constitutional issues, her brief repeatedly omits relevant precedents or history. At one point, Superintendent Hill advances an interpretation of the Constitution that is directly contrary to the decisions of this Court without even identifying the relevant decisions.
73 Each certified question restates a single constitutional inquiry: to what extent does the Wyoming Constitution reserve certain powers and duties related to education, such as the management of the responsibilities of the Wyoming Department of Education, to the
State Superintendent of Public Instruction alone?
Superintendent Hill’s position is that while the Legislature has the authority, by statute, to expand her powers and duties, future legislatures are bound by the actions of prior legislatures. According to her, although a legislature may provide authority to the
Superintendent by statute, future legislatures may not remove or reassign powers that fall within her broad view of the duties implicit in the general supervision of the public schools.
The State of Wyoming’s position is that the Wyoming Constitution does not imbue the office of Superintendent with sweeping, inherent authority over the education of Wyoming children. Instead, the Constitution leaves decisions about the scope of the powers and duties of that office to the legislative process.
Article 7, section 14 of the Wyoming Constitution, which creates the office of the
Superintendent, expressly delegates power to the Legislature to dictate the powers and duties of the Superintendent. The Constitution envisions that the “powers and duties” of the Superintendent will be “prescribed by law,” and this Court decided in Mau v. Stoner in 1905 that the phrase “prescribed by law” grants the Legislature authority to limit the powers of another state entity. Although Superintendent Hill interprets the term “general supervision of the public schools” as a limitation on the Legislature’s authority—seeing it as a broad grant of inherent power—this interpretation is incorrect. Rather than being an
74 affirmative grant of power to the Superintendent, the phrase “general supervision” is more accurately read as a restriction on the Superintendent’s authority. Just as the
Legislature may not single out particular individuals for differential treatment but must enact laws that are “general” on their face, the State believes that the term “general supervision” is best understood to mean that the Superintendent’s authority operates at a general level unless otherwise directed by the Legislature.
And the State’s interpretation of the Superintendent’s constitutional authority is supported by constitutional history. At the Wyoming Constitutional convention, the delegates envisioned an important role for the State Superintendent, but the role was to carry out statutory duties the Legislature would later assign to that office, not to exercise inherent constitutional power over education. Moreover, if the Wyoming Constitution provided broad, inherent authority to the Superintendent, one might expect some evidence to this effect during the first twenty-five years after statehood. Nothing of this sort is in the historical record. Indeed, all of the meaningful abilities that Superintendent
Hill identifies as having been removed were only added to the office of Superintendent by the Legislature in the 1990s or later.
Each of the other three arguments made by Superintendent Hill are derivative.
Each assumes that the Legislature has acted beyond its authority to prescribe the powers and duties of the office of Superintendent. Not only do they succumb to the failure of the argument from which they derive, they also lack any independent traction under this
Court’s precedent specific to each of them. Therefore, this Court should answer all four
75 certified questions in the negative and remand this case to the First Judicial District Court with instructions to dismiss the Complaint with prejudice.
DATED this 3rd day of July, 2013.
_____/s/______Gregory A. Phillips Wyoming Attorney General Wyoming State Bar No. 5-2516
_____/s/______Peter K. Michael Chief Deputy Attorney General Wyoming State Bar No. 5-2309
_____/s/______John G. Knepper Senior Assistant Attorney General Wyoming State Bar No. 7-4608
Attorneys for Appellees Wyoming Attorney General’s Office 123 Capitol Avenue Cheyenne, WY 82002 Telephone: (307) 777-7841
76 CERTIFICATE REGARDING ELECTRONIC FILING
I, Peter K. Michael, hereby certify that the foregoing BRIEF OF APPELLEES was served electronically via the Wyoming Supreme Court C-Track Electronic Filing System, this 3rd day of July, 2013.
Angela C. Dougherty Dougherty Law Office, P.C. 1623 Central Avenue Cheyenne, WY 82003 (307) 432-4006
The undersigned also certifies that all required privacy redactions have been made and, with the exception of those redactions, every document submitted in digital form or scanned .pdf is an exact copy of the written document filed with the Clerk, and that the document has been scanned for viruses and is free of viruses.
______/s/______Peter K. Michael Chief Deputy Attorney General
77