Powers v. State

DAVIS, Justice,

concurring generally and with special concurrence, in which VOIGT, Justice, joins.

[¶76] I write separately only to emphasize certain points. I am in complete agree*324ment with the reasoning and conclusions of Justice Burke's opinion.

[¶77] The well-crafted dissent intimates that the majority opinion intrudes upon powers entrusted to the legislature. I respectfully disagree. Our system of government is a delicate and uneasy balance between the legislative, executive, and judicial branches. This balance was conceived to prevent any one branch from becoming tyrannical. See The Federalist No. 47 (James Madison) ("The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."). The judicial branch was intended by the Founders of the federal government to be the least dangerous, as it had then and has now "no influence over either the sword or the purse" and therefore "neither force nor will, but merely judgment." The Federalist No. 78 (Alexander Hamilton). The Wyoming judiciary is subject to the same limitations.

[¶78] The Wyoming and Federal Constitutions are intended to allocate power between the branches of government, the states (in the case of the Federal Constitution), and the people. The Wyoming Constitution can be amended by a vote of the people, although a two-thirds vote of both houses of the legislature is required to submit an amendment to the electorate. Wyo. Const. Art. 20, § 1. It can also be amended by a constitutional convention if two-thirds of both houses agree to ask the voters whether such a convention should take place, if a majority of the voters agree, and if a majority of voters agree with changes proposed by the convention. Wyo. Const. Art, 20, § 8. It is obvious that the delegates to the 1889 constitutional convention intended to craft a system which could only be modified by consent of a super-majority of both houses of the legislature and the consent of the people. The amendment process was intended to be and is quite difficult. As James Madison observed of the Federal Constitution in The Federalist No. 43, the Constitution "guards equally against the extreme facility, which would render the constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults." The Federalist No. 48 (James Madison). The delegates and the voters who ratified the Wyoming Constitution likewise deemed changes to Wyoming's organic law to be so important that they could be made only with the consent of the people, and not solely by a majority of their elected representatives in the legislature.

[¶79] Since the decision in Marbury v. Madison, courts have been charged with determining whether legislation or executive action complies with constitutions. 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is."). Indeed, roughly two hundred years later, we succinetly reiterated that "it is the duty of courts of justice to declare void all legislative acts contrary to the manifest tenor of the constitution." State v. Campbell Cnty. Sch. Dist., 2001 WY 90, ¶ 30, 32 P.3d 325, 331 (Wyo.2001) (citing The Federalist No. 78 (Alexander Hamilton)). This is always a controversial duty, and often an unpleasant one, but it is the judicial branch which must make those difficult determinations.

[¶80] There can be no doubt that it is unhealthy for the balance of power between the branches when courts intrude on the powers delegated to the legislature by the people through the Wyoming Constitution. However, it would be equally unhealthy if the judicial branch did not fulfill its duty to determine the meaning of the supreme law of the state as that meaning is expressed in the words of the document. Failure to fulfill that duty could result in the legislative or executive branches exceeding the powers enumerated in the Wyoming Constitution. Campbell Cnty. Sch. Dist., 2001 WY 90, ¶ 32, 32 P.3d at 332 ("While we recognize the legislative and executive branches of Wyoming's state government have broad powers and responsibilities in providing the fundamental right of an education to our children, the powers of each branch of government are bound by the mandates and the constraints of the Wyoming Constitution.").

[T81] As the majority opinion points out, state constitutions are generally much more specific and detailed than the United States *325Constitution, and this is certainly true of the Wyoming Constitution. This arguably makes interpretation an easier task, for state courts have more direction in the text than is available to courts interpreting the Federal Constitution. The majority has relied upon the plain language of the Wyoming Constitution to determine that there are constitutionally protected functions of the office of Superintendent of Public Instruction which may not be transferred to another constitutional officer or legislatively created post without amending the Constitution.

[¶82] The dissent relies upon rules of construction to empty the vessel the constitutional convention intended to fill with the easily-understandable words "general supervision," opining instead that the 2013 legislature could by majority vote fill that vessel with meaning of its own. This would allow a transfer of power to a legislatively created director of the state department of education appointed by another constitutional officer, the Governor. I will not reiterate the majority opinion's reasoning, with which I wholeheartedly agree, but I must state my disagreement with the approach of the dissent. We should decide constitutional issues based on the words used in the Wyoming Constitution, not in spite of them.

[¶83] The dissent also contends that the majority's determination that SEA 0001 violated Article 7, § 14 is faulty because our decision does not also specify exactly what duties constitute "general supervision" or delineate the permissible interplay between the Wyoming State Board of Education, the School Facilities Commission, and the Superintendent. I respectfully disagree.

[¶84] We do not now and never have provided advisory opinions. See State Board of Equalization v. Jackson Hole Ski Corp., 745 P.2d 58, 59 (Wyo.1987) ("Although the question as postulated in this case may be properly before us in the future, to render an opinion here would be to issue an advisory opinion. This Court has said repeatedly that it will not issue advisory opinions."). The legislature has not enacted any additional education-related legislation which would allow us to address these issues. The parties have asked us, by certified question, to determine whether SEA 0001 as a whole violates Article 7, § 14. We have answered that question.

[¶85] Among the duties swept up in the tide of the large-scale transfer made by the legislation may be some which could in fact properly be transferred to another agency or entity, but that question was not presented to us. 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. I am unaware of any authority which would suggest that courts should in effect draft constitutionally permissible legislation so that the legislature may adopt it. It is ironic that the dissent suggests that the Court should accept the legislature's interpretation of the Wyoming Constitution to avoid invading the province of the legislature, while at the same time suggesting that an unprecedented incursion into the legislative realm is necessary to determine whether SEA 0001 is constitutional or not.

[¶86] It is important to recognize what this case is not about. As the majority opinion says, it is not about whether the system designed by the legislature is better than that designed by the delegates to the constitutional convention-it may well be. It is clear that the constitutional convention delegates' decision to fragment executive power has led to controversy and dissatisfaction with the elected office of Superintendent of Public Instruction almost from statehood, as both the majority and dissent point out. The involvement of the federal government has since made education a much more complex process than it was in 1889. No one could question that the legislature's goal to provide a better system of education with greater accountability is both noble and essential to the well-being of our children and of Wyoming. - However, it is not the province of this Court to determine which system would be better, but instead to determine whether SEA 0001 is constitutional in light of Article 7, § 14 and the related provisions of our Constitution.

*326[¶87] This case is likewise not about the current Superintendent of Public Instruetion's performance of her duties. The Wyoming Constitution is not intended to change based upon satisfaction or dissatisfaction with the performance of individual office holders; rather, it is rightfully intended to endure until amended by a vote of the people.

[T188] Finally, this case is not about whether the office of Superintendent of Public Instruction can be changed or eliminated altogether if the current structure is dysfunctional. It most certainly can be, but that change must come through the amendment process, with the consent of the people. By the words they used in the Wyoming Constitution, we know that the delegates to the constitutional convention and the voters who adopted the Constitution had faith in the people of Wyoming to decide important issues about the structure of their government. We should not deprive the citizens of that power by failing to honor the words the delegates used and the electorate adopted.