Dissenters say majority got it wrong in striking down SF104Jan 29, 2014 By Katie Roenigk, Staff Writer
Two judges voted against Tuesday's Wyoming Supreme Court ruling that a law redefining the duties of the State Superintendent of Public Instruction is unconstitutional.
In their dissent, Justice Marilyn S. Kite and retired Justice Michael Golden say the court's decision intrudes upon the powers entrusted to the Wyoming Legislature.
Golden sat in on the case because Justice William Hill recused himself. His wife works in state government and reportedly has had conflict with the superintendent.
"In reaching the conclusion it does, the majority crosses over the line between the appropriate exercise of judicial review and interference in matters within the province of the legislature," Kite and Golden wrote. "By doing so, the majority unravels nearly 125 years of historical treatment of education in Wyoming and undermines the very foundation of education in the state."
Senate File 104 was signed into law last year, transferring most of Superintendent Cindy Hill's duties to a new director of education appointed by Gov. Matt Mead. Kite and Golden say the move represented the "proper exercise of the constitutional charge given to the legislature to provide for education in the state."
"The legislature may enact any law not expressly or inferentially prohibited in the constitution," they wrote in their dissent.
'Prescribed by law'
The Wyoming Constitution mandates that the superintendent's powers and duties "shall be prescribed by law." Kite and Golden believe the phrase refers to the Wyoming Legislature.
"The framers intended the legislature to enact supplemental legislation establishing the powers and duties of the four state offices, including the office of the superintendent, and setting forth how those powers and duties were to be performed," they wrote.
In his majority opinion, Justice E. James Burke said the phrase "prescribed by law" doesn't permit the legislature to interfere with the constitutional authority of the courts.
The Wyoming Constitution states that supervision of schools is to be entrusted to the state superintendent of public instruction. SF104 included language that gave Hill "general supervision," over the Wyoming Department of Education, but Burke said that reservation of power was "illusory."
"Under the Act, the Superintendent no longer has any supervisory role in the State Department of Education," Burke wrote. "We conclude (SF104) unconstitutionally deprives the state superintendent of public instruction of the power of 'general supervision of the public schools.'"
If the majority is correct that the framers of the Wyoming Constitution wanted the superintendent to be the administrative head of all aspects of education in the state, Kite and Golden countered, the legislature's creation of the School Facilities Commission in 2002 could be deemed unconstitutional as well. In addition, the statewide task force to measure student progress and recommend accountability processes could also be "invalid," and it could be unconstitutional for the Wyoming Board of Education or the WDE to handle private school licensing without the superintendent's involvement. Wyoming's distance education task force could be called into question, Kite and Golden continued, and the governor may be unable to enter into negotiations with the Eastern Shoshone and Northern Arapaho tribes to discuss contractual arrangements for providing education and services for American Indian students at risk of failure in school.
The dissenters noted that all of the above activities currently take place in Wyoming.
"Each of these laws had been passed in 2008 when this court ... upheld the state system as constitutional," Kite and Golden wrote, adding, "The Wyoming Constitution entrusts the Wyoming Legislature with defining, developing and implementing a thorough and efficient education system."
Justices Barton Voigt and Michael K. Davis both joined with Burke in voting SF104 unconstitutional. They disagreed with Kite's claim that the court ruling intrudes on the legislature's power.
"Courts have been charged with determining whether legislation or executive action complies with constitutions," Davis wrote. "If the legislature wishes to enact a more narrowly crafted act based on this ruling, it certainly can and by all means should. If there remains controversy regarding the allocation of specific duties, that legislation could then be reviewed by the courts."
Immediately after Mead signed SF104, Hill filed a lawsuit claiming the legislation was unconstitutional.
As the person challenging the constitutionality of the statute, Hill bears the burden to prove that the law is unconstitutional. Kite and Golden said Hill did not meet that requirement.
Voigt retired effective Jan. 3. Golden was appointed by Kite to stand in for Justice Hill, who is not related to Cindy Hill.