February 10, 2014

Court Rejects Legislature’s Superintendent “Shell” Game

Staff Attorney Mike Donnelly answers questions and assists members with legal issues in Wyoming. He and his wife homeschool their children. Read more >>

In the notorious “shell game” con, an operator will surreptitiously move a small pea from beneath one shell to another so that his mark does not realize which shells are empty and which holds the pea. Last week the Wyoming Supreme Court put an end to the legislative shell game concerning the state office responsible for supervising public schools and struck down the provisions of Senate File 104 as unconstitutional.

Senate File 104 was enacted in 2013 when leaders in the Wyoming Legislature made a political play to sideline a popular and elected member of the Wyoming executive branch. State Superintendent Cindy Hill, a supporter of homeschooling freedom, had thwarted the interests of some powerful members of the leadership in the Wyoming Legislature.

Stripped of Authority

These interests combined forces to pass legislation that transferred virtually all powers from the constitutionally empowered office of the State Superintendent of Public Instruction to a newly created “Director of Education.” The title of superintendent remained, but the office was stripped of its constitutionally appointed authority and duties to supervise public instruction in Wyoming.

In a rebuke, the Wyoming Supreme Court ruled the law unconstitutional on January 28, 2014, saying that the move made the office of superintendent a mere “empty shell.” The court said that while the legislature had broad powers, the constitution was clear that an elected official was to supervise public instruction in Wyoming, and the legislature could not make an end run using its power to “prescribe by law” the duties of the superintendent.

The court writes, “The legislature can prescribe powers and duties of the Superintendent, but it cannot eliminate or transfer powers and duties to such an extent that the Superintendent no longer maintains the power of general supervision of the public schools.”

Rule of Law

The ruling was a victory for constitutional government. Article 7, Section 14 of the Wyoming Constitution explicitly entrusts the elected state superintendent of public instruction with responsibility for “the general supervision of the public schools.” Removing this authority would require modifying the Wyoming Constitution and should not be done through a simple legislative act.

Rather than go to the people, however, the legislature rammed the bill through over the objections of hundreds of calls, letters, and emails from citizens and replaced the democratically elected superintendent with a director appointed by the governor. HSLDA believes in the importance of protecting the integrity of the constitution and that representative government is better served when elected officials are authorized and empowered to carry out their constitutional duties. Last year, the legislature tried to subvert the office of State Superintendent and move its powers under the authority of a new position.

The Supreme Court did its job and caught them in their game this time, but there is no guarantee they will not try again. Ultimately, lawmakers are accountable to us, the people. And we the people must keep a sharp watch for any sleight of hand or shell game that seeks to rob of us our rights and our constitutional government.

Governor Mead has reportedly called for a rehearing of the case and has suggested a special legislative session to address the Supreme Court ruling invalidating the law. A twist to the situation is that one of the justices who ruled against the law has retired and a new justice who was appointed by the governor has taken his place. HSLDA will continue to monitor the situation and keep you informed.

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