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Powers v. State

Supreme Court of Wyoming

January 28, 2014

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 (Plaintiffs),
v.
STATE of Wyoming and Matthew H. Mead, Governor, in his official capacity, Appellees (Defendants).

Page 301

Representing Appellants: Angela C. Dougherty, Dougherty Law Office, P.C., Cheyenne, Wyoming.

Page 302

Representing Appellees: Peter K. Michael, Attorney General; John G. Knepper, Senior Assistant Attorney General. Argument by Mr. Michael.

Before KITE, C.J., VOIGT [*], BURKE, DAVIS, JJ., and GOLDEN, J., Retired.

BURKE, Justice.

[¶ 1] This matter comes before us as four certified questions from the district court for the First Judicial District of Wyoming. These questions ask us to determine whether Senate Enrolled Act 0001 violates the Wyoming Constitution. We conclude the Act unconstitutionally deprives the State Superintendent of Public Instruction of the power of " general supervision of the public schools" that is entrusted to the Superintendent in Article 7, Section 14 of the Wyoming Constitution.[1]

CERTIFIED QUESTIONS

[¶ 2] The district court certified four questions to this Court. However, we find the following question to be dispositive:

1. Does Senate Enrolled Act 0001 violate Wyoming Constitution Article 7, Section 14? [2]

FACTS

[¶ 3] Appellant Cindy Hill is the current Superintendent of Public Instruction for the state of Wyoming. She was elected to serve a four-year term in the 2010 general election. Appellants Kerry and Clara Powers are Wyoming citizens who cast their votes for Ms. Hill. In January, 2013, approximately two years after Ms. Hill began serving her term of office, the Wyoming Legislature passed Senate Enrolled Act 0001. The title describes it as " AN ACT ... establishing the position of director of the department of education by statute; providing duties of the director of the department of education; [and] amending duties of and transferring specified duties from the state superintendent to the director of the state department of education." 2013 Wyo. Sess. Laws ch. 1 (codified at Wyo. Stat. Ann. §§ 9-1-513; 21-1-103; 21-2-104, -105, -201 et seq., -301, -304, -306, -502, -701, -703, -801, -802; 21-3-110, -117, -314, -401; 21-4-401, -601; 21-6-210, -219; 21-13-101, -102, -306, -307, -309, -310, -312, -313; 21-15-113; 21-17-201; 21-18-201; 21-22-103; and 31-5-118).

[¶ 4] Prior to enactment of SEA 0001, the Superintendent was the administrative head and chief executive officer of the Department of Education. Wyo. Stat. Ann. § 21-2-201 (LexisNexis 2011). In that capacity, the Superintendent's powers and duties included, among others, the duty to make rules and regulations " as may be necessary or desirable for the proper and effective administration of the state educational system and the statewide education accountability system," and to " [e]nforce the provisions" of the Education Code and the administrative rules and regulations provided for in the Education Code. Wyo. Stat. Ann. § 21-2-202. The 2013 Act removed the Superintendent as the administrator and chief executive officer of the Wyoming Department of Education. The Act created the new position of Director of the Wyoming Department of Education and assigned to the Director nearly all of the duties that were formerly the responsibility of the Superintendent. Wyo. Stat. Ann. § 21-2-202(a) (LexisNexis 2013). The Act amends a total of 36 separate statutes and substitutes " director" for " state superintendent" in approximately 100 places. According to the State, the Act transfers 68 duties from the Superintendent to the Director. The Director is appointed by the Governor. Wyo. Stat. Ann. § 21-1-104.

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[¶ 5] Under the Act, the Superintendent's enumerated duties are to (1) prepare an annual report for the legislature on " the general status of all public schools; " (2) adopt rules and regulations " as may be necessary for the proper and effective general supervision of the public schools," to the extent that this authority does not conflict with the rulemaking authority of the board of education, department of education, or the director of education; (3) administer a " teacher of the year" program; (4) establish " requirements for school district policies and training regarding the use of seclusion and restraint in schools; " (5) assist local school districts " in developing protocols ... for addressing risks associated with concussions and other head injuries resulting from athletic injuries; " (6) establish guidelines for school districts for the proper and safe storage and disposal of toxic chemicals and other hazardous substances; and (7) identify professional development needs for Wyoming schools and teachers and conduct up to five regional workshops each year addressing the identified professional development needs. Wyo. Stat. Ann. § 21-2-201. Although the Act transfers the bulk of the Superintendent's previous powers and duties to the Director, the Act retains language in Wyo. Stat. Ann. § 21-2-201(a) providing that " The general supervision of the public schools shall be entrusted to the state superintendent as prescribed by law."

[¶ 6] On the day the Act was signed into law, Appellants filed an action in district court seeking a declaratory judgment and preliminary injunction that would prevent the Act from taking effect. The district court denied the motion for a preliminary injunction and certified the four questions of law to this Court pursuant to W.R.A.P. 11.

STANDARD OF REVIEW

[¶ 7] Issues of constitutionality present questions of law. Cathcart v. Meyer, 2004 WY 49, ¶ 7, 88 P.3d 1050, 1056 (Wyo.2004). In determining the constitutionality of a statute, we have previously stated that:

The party challenging the constitutionality of a statute bears the burden of proving the statute is unconstitutional. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 961 (Wyo.1995). That burden is a heavy one " in that the appellant must ‘ clearly and exactly show the unconstitutionality beyond any reasonable doubt.’ " Cathcart v. Meyer, 2004 WY 49, ¶ 7, 88 P.3d 1050, 1056 (Wyo.2004), quoting Reiter v. State, 2001 WY 116, ¶ 7, 36 P.3d 586, 589 (Wyo.2001). 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." Thomson v. Wyoming In-Stream Flow Committee, 651 P.2d 778, 789-90 (Wyo.1982).

Krenning v. Heart Mt. Irrigation Dist., 2009 WY 11, ¶ 33, 200 P.3d 774, 784 (Wyo.2009). However, we have also recognized that " [t]hough the supreme court has the duty to give great deference to legislative pronouncements and to uphold constitutionality when possible, it is the court's equally imperative duty to declare a legislative enactment invalid if it transgresses the state constitution." Washakie County Sch. Dist. v. Herschler, 606 P.2d 310, 319 (Wyo.1980). In this case, Appellants 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." Director of the Office of State Lands & Invs. v. Merbanco, Inc., 2003 WY 73, ¶ 32, 70 P.3d 241, 252 (Wyo.2003).[3]

DISCUSSION

[¶ 8] In cases of constitutional interpretation, " We are guided primarily by the intent of the drafters." Cantrell v. Sweetwater County Sch. Dist. No. 2, 2006 WY 57, ¶ 6, 133 P.3d 983, 985 (Wyo.2006).

The primary principle underlying an interpretation of constitutions or statutes is that the intent is the vital part, and the

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essence of the law. (Sutherland Stat. Const., Sec. 234, People v. Potter, 47 N.Y. 375 [ (1872) ].) " The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced." (Cooley Const. Lim., 55.)

Rasmussen v. Baker, 7 Wyo. 117, 128, 50 P. 819, 821 (1897). As explained at length in Rasmussen, in determining that intent we look first to the plain and unambiguous language used in the text of the Constitution:

Such intent ... is that which is embodied and expressed in the statute or instrument under consideration. " The intent must be found in the instrument itself." (Cooley Const. Lim., 55; Sutherland Stat. Const., Sec. 234.) If the language employed is plain and unambiguous, there is no room left for construction. It must be presumed that in case of a constitution the people have intended whatever has been plainly expressed. Courts are not at liberty to depart from that meaning which is plainly declared.

Id.

[¶ 9] More recent decisions interpreting the Wyoming Constitution indicate that we have consistently held to the principle that the language of the text is of primary importance in constitutional interpretation:

In construing our constitution, we follow essentially the same rules as those governing the construction of a statute. The fundamental purpose of those rules of construction is to ascertain the intent of the framers. Geringer v. Bebout, 10 P.3d 514, 521 (Wyo.2000); Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981, 991 (1918). " We are charged with discerning the intent of the Constitutional Convention, and we look first to the plain and unambiguous language to discern that intent." Geringer, 953 P.2d at 843.

Director of the Office of State Lands & Invs., ¶ 33, 70 P.3d at 252; see also Cantrell, ¶ 6, 133 P.3d at 985; Cathcart v. Meyer, ¶ 39, 88 P.3d at 1065; Campbell County Sch. Dist. v. State, 907 P.2d 1238, 1272 (Wyo.1995). Further, in interpreting the plain and unambiguous language of the Constitution, we follow harmonizing rules similar to those employed when interpreting statutes.

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.

Geringer v. Bebout, 10 P.3d 514, 520 (Wyo.2000); see also Cathcart, ¶ 40, 88 P.3d at 1065; Management Council of the Wyo. Legislature v. Geringer, 953 P.2d 839, 845 (Wyo.1998). With these rules in mind, we turn to the constitutional provision at issue in this appeal.

[¶ 10] In this case we are asked to interpret Article 7, Section 14 of the Wyoming Constitution. That section provides:

§ 14. Supervision of schools entrusted to state superintendent of public instruction.
The general supervision of the public schools shall be entrusted to the state superintendent of public instruction, whose powers and duties shall be prescribed by law.

While both parties appear to contend that the section is plain and unambiguous, they ascribe different meanings to the section. In doing so, they emphasize different clauses to support their positions.

[¶ 11] Appellants assert that the words in the first clause, when used in their normal and customary sense, convey the framers' intent that the Superintendent was entrusted with the responsibility and power to provide supervision of the state public school system. Appellants contend the phrase " whose powers and duties shall be prescribed by law" allows the legislature to " expand or contract" the powers and duties of the Superintendent, but does not permit the legislature to diminish the powers and duties to a level which threatens the Superintendent's power of general supervision. They essentially view the first clause as a restriction on the legislature's

Page 305

authority to prescribe the powers and duties of the Superintendent. Appellants contend the Act is unconstitutional because the legislature has transferred the power of general supervision from the Superintendent, who is elected by the voters, to a director appointed by the Governor. Although the Act specifies that the Superintendent shall have " general supervision," Appellants assert that the phrase, as used in the Act, is essentially meaningless and the purported reservation of the power of general supervision to the Superintendent is illusory. Appellants contend Article 7, Section 14 is plain and unambiguous and that it is not necessary to employ rules of construction to determine the intent of the constitutional framers.

[¶ 12] The State emphasizes the second clause. It contends the legislature has the ultimate authority to " dictate" the powers and duties of the Superintendent, and that the power of the legislature to " prescribe by law" is unrestricted. It asserts that the constitutionally created office of the Superintendent has no inherent authority, and that the phrase " general supervision" is " more accurately read as a restriction on the Superintendent." [4] According to the State, the phrase " general supervision" is " a grant of limited responsibility and only ... in areas where no specific supervision is to be had." Although the State does not claim that Article 7, Section 14 is ambiguous, it provides a detailed legislative history of statutory changes pertaining to the Superintendent, and contends the constitutional debates and legislative history support its position. The State also claims that, even if the legislature's authority to prescribe by law is restricted, the Act is sufficient to survive a constitutional challenge because it explicitly reserves the power of general supervision to the Superintendent, and because the other powers prescribed to the Superintendent are meaningful and significant.

[¶ 13] Because it is potentially dispositive, we will first address the plain meaning of the phrase " prescribed by law" as it relates to the power of " general supervision" entrusted to the Superintendent in the first clause of Article 7, Section 14. The parties agree that the phrase " prescribed by law" refers to the legislature's ability to pass laws relating to the powers and duties of the Superintendent. As noted above, however, the parties disagree as to whether this power is restricted in any way by the first clause of Article 7, Section 14.

[¶ 14] The State contends that we long ago determined that the phrase " prescribed by law" provides unrestricted power to the legislature to limit the powers of constitutionally created offices. In making that assertion, the State relies upon our decision in Mau v. Stoner, 14 Wyo. 183, 83 P. 218 (Wyo.1905). In Mau, this Court grappled with a constitutional challenge to a statute which allegedly violated Article 5, Section 2 of the Wyoming Constitution, which provides: " 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."

[¶ 15] According to the State, " the lesson of Mau is that the phrase ‘ prescribed by law’ permits the Legislature to establish or to limit duties at its discretion." We disagree. Our precedent has limited Mau to the very narrow facts of that case. Additionally, we have made it abundantly clear that the phrase " prescribed by law" does not permit the legislature to interfere with the constitutional and inherent authority of the courts.

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[¶ 16] The statute at issue in Mau was challenged on the basis that it violated Article 5, Section 2 of the Wyoming Constitution because it deprived a party of the opportunity to appeal a district court order appointing a " water distributor." We held as follows:

It is not necessary, however, in this case for us to express an opinion as to whether there is a constitutional right of appeal or review in cases which proceed according to the course of the common law. The statute under consideration provides for a special or summary proceeding unknown to the common law, created by the Legislature for the purpose of affording temporary relief only and to meet immediate emergencies that may arise under it. The Legislature clearly had the power in such a proceeding to declare that the decision of the District Court should be final and deny the right of appeal therefrom. We, therefore, hold that the Legislature in this proceeding had the right to declare the judgment of the District Court final, and that it has done so by the statute under consideration.

Mau, 83 P. at 220-21.

[¶ 17] In reaching that decision we referenced the " as may be prescribed by law" language of Article 5, Section 2 and commented: " We think the expression ‘ under such rules and 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 220. It is this language that serves as the lynchpin of the State's argument in this case.

[¶ 18] It was made very clear in Mau that the statute at issue involved a proceeding that was intended to grant temporary relief. We have subsequently confirmed that the temporary nature of the relief was critical to our analysis. See, e.g., Weidenhoft v. Primm, 16 Wyo. 340, 354, 94 P. 453, 456 (1908) (" That was a proceeding for the appointment of a water distributer, was summary in notice, temporary in character, and to meet an immediate emergency. It was not an action or proceeding to determine the title or ownership of property; but, on the contrary, for the preservation of the rights of the parties temporarily." ); see also State v. Heiner, 683 P.2d 629, 643 (Wyo.1984) (" Not only is the case a civil one, but it concerns a specific statute providing for temporary relief and directing that the decision be final with regards to the temporary relief." ).

[¶ 19] More significantly, we have had numerous occasions to discuss the Court's general superintending authority specified in Article 5, Section 2. We have consistently recognized that the authority granted in that provision of the Constitution cannot be abridged by legislative action. Our analysis is perhaps best presented in White v. Fisher, 689 P.2d 102 (Wyo.1984), where we determined that a statute relating to the contents of court pleadings was unconstitutional. We stated:

The general superintending control over all inferior courts granted to the supreme court by that provision encompasses the authority to prescribe rules of practice and procedure in those courts. More than fifty years ago this court, relying upon previous decisions, concluded that the power of this court to control the course of litigation in the trial courts of this state is quite plenary. State ex rel. Jones v. District Court of Ninth Judicial Dist., 37 Wyo. 516, 263 P. 700, 703 (1928). In Petersen v. State, Wyo., 594 P.2d 978, [982] (1979), this position was reiterated, and we also said:
The Wyoming Constitution provides in Article V, Section 2, that the supreme court ‘ shall have a general superintending control over all inferior courts under such rules and regulations as may be prescribed by law.’ It is well recognized that in this jurisdiction the courts have inherent rights to prescribe rules, being limited only by their reasonableness and conformity to constitutional and legislative enactments. State ex rel. Frederick v. District Court, Wyo., 399 P.2d 583, 584 (1965), and cases cited. The legislative enactments referred to include those that deal with the substantive rights of persons or the jurisdiction of the court. Matters dealing with procedure, particularly in the minor courts,

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are entirely within the province of this court.
Even more recently we reaffirmed the inherent right of courts to prescribe rules. Barnes v. State, Wyo., 642 P.2d 1263, 1266 (1982).
Both this constitutional provision affording full authority to this court over rules of practice and the inherent power of courts to prescribe rules are recognized by statute in Wyoming. Section 5-2-114, W.S.1977, provides:
The supreme court of Wyoming may from time to time adopt, modify and repeal general rules and forms governing pleading, practice and procedure, in all courts of this state, for the purpose of promoting the speedy and efficient determination of litigation upon its merits.
We have made it clear that this statute only supplements the constitution and does not constitute a delegation of rule-making authority from the legislature:
The State suggests, however, that this court issues rules of practice and procedure through authority delegated by the legislature and, therefore, in the case of conflict between our rules and the statutes, the statutes control, citing a portion of 2 Sutherland, Statutory Construction, § 36.06 (1973). In a more pertinent portion of the same section the editor observes:
Where there is constitutional authority for the judicial department of government to issue rules of practice and procedure or if, in the absence of a constitutional provision, such authority is assumed to be an inherent part of the judicial power, then courts which exercise such authority may be regarded as the legislative authority of the state having jurisdiction to enact law on that subject, just as the legislature makes law on the subjects entrusted to its jurisdiction. The rules issued under those circumstances have stature in the hierarchy of law comparable to that of statutes enacted by the legislature, and acts of the legislature on the subject of judicial practice and procedures in such states are invalid for lack of constitutional jurisdiction in the legislature to make such laws on that subject. Petersen v. State, Wyo., 594 P.2d 978, 981-982 (1979).
...
It is our conclusion that § 1-1-114, W.S.1977, is unconstitutional in the present form. Further we perceive that in any form it would constitute an attempt to prescribe the content of pleadings, a procedural function. The statute is a clear infringement upon the constitutional and inherent power of this court to make rules.

White, 689 P.2d at 106-07 (quotation marks omitted); see also Squillace v. Kelley, 990 P.2d 497, 501 (Wyo.1999); Terry v. Sweeney, 10 P.3d 554, 558 (Wyo.2000); Reynolds v. Bonar, 2013 WY 144, ¶ 13, 313 P.3d 501, 504-05 (Wyo.2013).

[¶ 20] In sum, the State's reliance upon our decision in Mau is misplaced. The " lesson of Mau, " and other decisions from this Court interpreting Article 5, Section 2, is that the power of the legislature to " prescribe by law" is not unrestricted. Laws may be enacted that do not interfere with the constitutional or inherent authority of the courts. However, statutes that interfere with that authority are unconstitutional. That concept is also applicable to constitutionally created executive branch offices.

[¶ 21] In establishing the executive branch of the new state government, the framers of the Wyoming Constitution established the office of the Governor in Article 4, Section 1. The framers then established four other executive branch offices, including the office of the Superintendent, in Article 4, Section 11, which provides:

§ 11. State officers; election; qualifications; terms.
There shall be chosen by the qualified electors of the state at the times and places of choosing members of the legislature, a secretary of state, auditor, treasurer, and superintendent of public instruction....

In addition to creating those offices, the framers also stated in Article 4, Section 12:

§ 12. State officers; powers and duties.

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The powers and duties of the secretary of state, of state auditor, treasurer and superintendent of public instruction shall be as prescribed by law.

We have not had occasion to address whether the " as prescribed by law" language in Article 4, Section 12 provides the legislature with unlimited discretion to " dictate" the powers and duties of those constitutional offices. According to the State, however, " if [Article 4, Section 12] were the only one to describe the Superintendent's authority, a constitutional challenge to the 2013 ... Act would be doomed." This bold assertion rests upon a very shaky foundation.

[¶ 22] The majority of courts that have addressed similar language in their constitutions have concluded that the phrase " as prescribed by law" does not permit the legislature to abolish or transfer, either directly or indirectly, the inherent powers of a constitutionally created office. In Hudson v. Kelly, 76 Ariz. 255, 263 P.2d 362 (1953), the Arizona Supreme Court addressed a challenge to a statute that subjected many of the functions of the state auditor, a constitutionally created office, to approval by the newly-created office of the " commissioner of finance." Id. at 368. Arizona's Constitution provided that " The powers and duties of secretary of state, state treasurer, state auditor, attorney-general, and superintendent of public instruction shall be as prescribed by law." Id. at 365. Based on this provision, the court determined that the state auditor held inherent powers, and the statute stripping the auditor of those powers was unconstitutional. Id. at 368. It stated that the legislature " could not denude the office of its inherent powers and duties, even though they had been prescribed by statute, and leave the office as an empty shell." Id. " Such attempts," it noted, " have uniformly been denounced by courts of last resort." Id. (citing, inter alia, State ex rel. Josephs v. Douglass, 33 Nev. 82, 110 P. 177, 180 (1910) (" It is well settled by the courts that the legislature, in the absence of special authorization in the constitution, is without power to abolish a constitutional office or to change, alter, or modify its constitutional powers and functions." ) ( overruled on other grounds by Harvey v. Second Judicial Ct., 117 Nev. 754, 32 P.3d 1263 (Nev.2001)); State ex rel. Kennedy v. Brunst, 26 Wis. 412 (1870); State ex rel. Gaston v. Black, 199 Ala. 321, 74 So. 387 (1917)). The court concluded as follows:

It was long ago determined that the legislature has no power to take from a constitutional officer the substance of the office itself, and transfer it to another who is to be appointed in a different manner and will hold the office by a different tenure from that which is provided for by the constitution. Warner v. People ex rel. Conner, 1845, 2 Denio, 272, 43 Am.Dec. 740. A constitutional office cannot be destroyed nor an incumbent legislated out of it in the absence of express constitutional authority, State ex rel. Gaston v. Black, 1917, 199 Ala. 321, 74 So. 387, 388, and what may not be done directly cannot be accomplished by indirection.

Hudson, 263 P.2d at 369.

[¶ 23] A similar conclusion was reached by the Idaho Supreme Court in Wright v. Callahan, 61 Idaho 167, 99 P.2d 961 (1940). In that case, the court addressed a challenge by the elected state auditor to a statute that, according to the auditor, improperly allowed the newly-created office of comptroller to " assume, usurp and perform powers and duties vested in the State Auditor by the Constitution." Id. at 962.[5] The Idaho court reviewed a collection of cases from other jurisdictions establishing that constitutional officers possess inherent power, and cited its own precedent consistent with that principle:

In State v. Malcom, 39 Idaho 185, 226 P. 1083, 1084 [ (1924) ], citing with approval Love v. Baehr, [47 Cal. 364 (1874) ], and State ex rel. Josephs v. Douglass, 33 Nev. 82, 110 P. 177 [ (1910) ], it is stated:
" When the Constitution devolves a duty upon one officer, the Legislature cannot substitute another."
And in Givens v. Carlson, 29 Idaho 133, 157 P. 1120, 1122 [ (1916) ], we quoted with

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approval from Cooley's Constitutional Limitations (8th ed.) p. 61, note 2, as follows:
" The Legislature cannot take from a constitutional officer a portion of the characteristic duties belonging to the office, and devolve them upon an officer of its own creation."
Id. Id.

[¶ 24] Similarly, in State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777, 778 (Minn.1986), the Minnesota Supreme Court addressed a challenge to a statute " which transferred most of the responsibilities of the State Treasurer, an executive officer, to the Commissioner of Finance, a statutory position." The constitutional provision at issue in that case stated, " The duties and salaries of the executive officers shall be prescribed by law." Id. at 780. The court began its analysis by noting that

The provision in Article V providing that the duties of the state executive offices " shall be prescribed by law" is present in several other state constitutions. Appellate courts in these jurisdictions have consistently held that the prescribed-by-law provision does not allow a state legislature to transfer inherent or core functions of executive officers to appointed officials.

Id. The court catalogued several of these decisions, and consistent with this precedent, ruled that the legislature's power to prescribe the duties of an office was subject to constitutional limitations:

Although the prescribed-by-law provision of Article V affords the legislature the power, in light of public health and welfare concerns, to modify the duties of the state executive officers, it does not authorize legislation, such as Chapter 13, that strips such an office of all its independent core functions. The mandate in Section 1 of Article V, that the executive department consist of a governor, lieutenant governor, secretary of state, auditor, treasurer and attorney general, implicitly places a limitation on the power of the legislature, under Section 4 of Article V, to prescribe the duties of such offices. The limitation is implicit in the specific titles the drafters gave to the individual offices.
This is not to say that the legislature could not name officials to perform some of the core functions of an executive office; core functions of such offices can be shared with statutory officials. The limitation implicit in Section 1 of Article V serves only to prevent the legislature from abolishing all of the independent functions inherent in an executive office. To allow the legislature to abolish all such functions of an executive office is to allow it to do violence to the title the drafters afforded the office and the core functions necessarily implied therefrom.
... In granting the legislature the power to prescribe the duties of such executive officers in Article V, the drafters could not have intended to afford the legislature the power to abolish these offices by statute. In Article IX, the drafters enumerated the only procedure by which such offices could be eliminated: the constitutional amendment process. By statutorily abolishing all of the independent core functions of a state executive office, the legislature, in effect, abolishes that office, and the will of the drafters, as expressed in Article IX, is thereby thwarted.
Admittedly, the State Treasurer still has some miscellaneous duties under Chapter 13. He is a member of the State Executive Council and the State Board of Investment. He also is required to keep a separate record of the state bond fund, although this duty may be somewhat difficult to carry out in light of the fact that most, if not all, of the financial information formerly kept by the State Treasurer's Office has been transferred to the Department of Finance. These very minor duties aside, there is little doubt that the

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Office of State Treasurer now stands as an empty shell....
We must give meaning to Section 1 of Article V, as well as Article IX.... To permit the legislature to gut an executive office as it did in Chapter 13 is to hold that our state constitution is devoid of any meaningful limitation on legislative discretion in this area.

Id. at 782-83 (footnote omitted). The court concluded the statute was unconstitutional:

It appears that Chapter 13 was precipitated by the actions of the individual occupying the state treasurer position. The individual, however, was duly elected by the people of this state in accordance with Article V of our state constitution. If the individual occupying the office should be removed, the legislature has at its disposal the impeachment process of Article VIII. If the position is no longer warranted for the efficient administration of state government, the legislature can present to the people, in accordance with Article IX, a constitutional amendment eliminating the office. The drafters did not, however, give the legislature the option of statutorily abolishing this state executive office. Such a remedy lies only with the people.

Id. at 783. Other similar cases include Thompson v. Legislative Audit Comm'n, 79 N.M. 693, 448 P.2d 799, 801 (1968) (" Of course the legislature cannot abolish a constitutional office nor deprive the office of a single prescribed constitutional duty. Nor can this be done by indirection, such as depriving him of all statutory duties, thereby leaving the office in name only, an empty shell." ); and American Legion Post No. 279 v. Barrett, 371 Ill. 78, 20 N.E.2d 45, 51 (1939) (" The constitution ... provides that public officers, including the State Treasurer, shall perform such duties as may be required by law. Nothing in the constitution further defines the duties of the State Treasurer [but we have] held that those duties are such as are to be implied from the nature of the office and of them he may not be deprived or relieved." ).

[¶ 25] The State concedes that " some courts" have recognized that there are inherent powers in constitutional executive offices that cannot be abridged by legislation despite the existence of " as prescribed by law" language in the constitutional provision creating the office. The State attempts to limit those cases to constitutional offices that possess " characteristic common law duties, such as an auditor or attorney general." The State contends that the Superintendent is not a " common law official, and there is no basis to infer what duties should be considered." In this case, however, there is no need to ascertain the " characteristic common law duties" of the office of the Superintendent because our constitutional framers expressly entrusted the power of " general supervision of the public schools" to the Superintendent in Article 7, Section 14 of the Wyoming Constitution.

[¶ 26] The only precedent provided by the State that bears upon this issue is State ex rel. Langer v. Totten, 44 N.D. 557, 175 N.W. 563 (1919). Langer involved interpretation of the North Dakota Constitution, which does not contain any provision similar to Article 7, Section 14 of the Wyoming Constitution.[6] To the extent that Langer can be viewed as holding that the phrase " as prescribed by law" places unrestricted discretion in the legislature to determine the powers and duties of constitutional offices, it is at odds with the majority of courts that have considered the issue.[7] It is also at odds with prior precedent from the North Dakota Supreme Court recognizing the existence of inherent power in constitutional offices that cannot be legislated away despite the presence of " as prescribed by law" language in the constitutional provision at issue.

[¶ 27] Prior to Langer, the North Dakota Supreme Court had occasion to address the

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power of the legislature to eliminate or transfer inherent powers from a constitutionally recognized office. In Ex parte Corliss, 16 N.D. 470, 114 N.W. 962 (1907), the court was presented with a constitutional challenge to a legislative act creating an " enforcement commissioner" and granting that position the " power, whenever he deems the exercise thereof necessary, to displace the regularly elected state's attorney and sheriff in any county, so far as the enforcement of the so-called ‘ Prohibition Law’ is concerned in such county." Id. at 964. The challenge was predicated upon Article 10, Section 173 of the North Dakota Constitution, which provided in pertinent part: " At the first general election held after the adoption of this constitution, and every two years thereafter, there shall be elected in each organized county in the state, a ... sheriff and state's attorney.... The legislative assembly ... shall prescribe the duties and compensation of all county, township and district officers." The court rejected the argument that this provision provided the legislature with unrestricted power to prescribe the duties of constitutionally recognized offices. It stated that such an argument, " carried to its logical and inevitable result, would lead to the monstrous doctrine that the constitution means nothing, and, notwithstanding its plain provisions, the legislative assembly may provide that the duties pertaining to all these offices shall be discharged by officers appointed in some manner prescribed by them." Corliss, 114 N.W. at 965. The court held as follows:

The act in question does not purport to prescribe the duties of these constitutional officers, but it attempts to vest in other persons not elected the power to perform such duties, and to this extent supplant these constitutional officers. Such legislation, in our opinion, cannot be sustained. It strikes a blow at the very foundation principles of our form of government....
If the offices mentioned in section 173, which includes those of state's attorney and sheriff, " are imbedded in the constitution," it inevitably follows that they cannot be stripped by the legislature of the important duties inherently connected therewith, for if this can be done, then these offices were " imbedded in the constitution" for no purpose. We do not deny the power of the legislature to prescribe duties for these officers, which power carries with it by implication the right to change such duties from time to time as the public welfare may demand; but we deny its power to strip such offices, even temporarily, of a portion of their inherent functions and transfer them to officers appointed by central authority. This, as we view it, is a plain violation of the constitution.

Id.

[¶ 28] In Langer, North Dakota's superintendent of public instruction asked the court to " compel the board of administration and the educational commission to refrain from preparing and prescribing the courses of study for the common schools of the state," a request that challenged the constitutionality of legislation granting the power of general supervision and administration of the public schools to a new " board of administration." Id., 175 N.W. at 564. The superintendent contended that the statute was unconstitutional because it " deprives a constitutional officer [the superintendent] of a power that is inherent in the office." Id. at 566. In asserting that position, the superintendent relied upon the North Dakota Supreme Court's decision in Corliss. The Langer court rejected the argument and determined that Corliss was " not in point" because

[i]n that case the constitutional question involved the right of the legislature to transfer from the state's attorney to an enforcement commissioner by legislative act duties that inhered in the office. With reference to the state's attorney, the Constitution simply provides for an election of such state's attorney, but makes no provision for further prescribing his duties by statute.

Langer, 175 N.W. at 564-65.

[¶ 29] It is difficult to follow the court's reasoning. In Corliss, the court concluded that there were inherent powers and duties in the office of sheriff and the state's attorney that could not be abrogated by legislation. The constitutional provision at issue in Corliss provided that the " legislative assembly ... shall prescribe" those duties. N.D.

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Const., art. 10, § 173 (1905). To the extent that there is a conflict between the holdings in Corliss and Langer as to whether the phrase " prescribed by law" permits the legislature to eliminate or transfer inherent duties from a constitutional office, we find the court's reasoning in Corliss more persuasive.

[¶ 30] The issue before us is one of first impression. The State, however, suggests that language from our school finance precedent supports its claim that the legislature has unlimited authority to " prescribe" powers and duties of the Superintendent. In both Washakie Cnty. Sch. Dist. No. 1 v. Herschler, 606 P.2d 310, 320 (Wyo.1980) and Campbell County Sch. Dist. v. State, 907 P.2d 1238, 1263 (Wyo.1995)( Campbell I ), we stated: " the legislature has complete control of the state's school system in every respect." Although the Court in Washakie referenced Article 7, Sections 1 and 14 in making that statement, it seems clear that the primary basis for the Court's statement was Article 7, Section 1.[8] Both cases involved constitutional challenges to Wyoming's system of financing public education. They did not address the issues presented in this case. Moreover, in a subsequent school financing decision, we made it clear that legislative power pertaining to state education was subject to constitutional limitations:

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.
Campbell II 2001 WY 90 32 P.3d 325

[¶ 31] There is no question that the legislature has the power to alter the powers and duties of the Superintendent. That authority is specifically granted under the " as prescribed by law" language of Article 7, Section 14. To hold that the legislature does not have that constitutional authority would render the second clause of Article 7, Section 14 meaningless. In this case, however, we must determine whether there are limits to the authority to prescribe.

[¶ 32] The State contends that the legislature's authority to prescribe is unrestricted.[9] Interpreting " prescribed by law" as the State urges us to do would render Article 7, Section 14 meaningless. If the first clause of Article 7, Section 14 does not limit the authority of the legislature to prescribe the duties of the Superintendent, then Article 7, Section 14 is unnecessary. Another section of the Constitution, Article 4, Section 12, already provides that the powers and duties of the Superintendent, and other executive officers, shall be " as prescribed by law." Further, if " prescribed by law" permits the legislature to abolish the Superintendent's power of general supervision, then the first clause of Article 7, Section 14 serves no

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purpose. We must attempt to give meaning to all words and phrases so that no part " will be inoperative or superfluous." Geringer, 10 P.3d at 520. The State's proposed interpretation violates this cardinal rule of constitutional interpretation.

[¶ 33] The reasoning of those courts rejecting legislative attempts to restrict inherent power in a constitutional office is persuasive. It is even more compelling when applied to an express grant of constitutional authority. If an implicit grant of power cannot be extinguished by the legislature, there should be no question that the express grant of power to a constitutionally created office cannot be abrogated legislatively. The office of Superintendent is a constitutional office and the entrustment of general supervision is a specific grant of power and responsibility to that office. That power cannot be legislatively removed unless there is specific authorization in the Constitution for such action. There is no such authorization in the Wyoming Constitution.

[¶ 34] Accordingly, we hold that the phrase " shall be prescribed by law" in Article 7, Section 14 of the Wyoming Constitution does not provide the legislature with unrestricted power to eliminate or transfer powers and duties of the office of Superintendent. The legislative authority to " prescribe" is limited by the first clause of Article 7, Section 14. While the legislature can prescribe powers and duties of the Superintendent, 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."

[¶ 35] The constitutional issue in this case, then, as appropriately framed, is whether, under the Act, the Superintendent retains the constitutionally granted power of " general supervision of the public schools" set forth in Article 7, Section 14 of the Wyoming Constitution. To resolve that issue, we must determine the meaning of the phrase " general supervision" as used in Article 7, Section 14. Again, " We look first to the plain and unambiguous language to determine intent. If the language is plain and unambiguous, there is no need for construction, and we presume the framers intended what was plainly expressed." Cathcart v. Meyer, 2004 WY 49, ¶ 39, 88 P.3d 1050, 1065 (Wyo.2004) (internal citations omitted).

[¶ 36] When determining the meaning of constitutional language, we must attempt to understand the meaning of the language as it was understood at the time our Constitution was ratified. See Campbell I, 907 P.2d at 1258; Witzenburger v. State, 575 P.2d 1100, 1111-12 (Wyo.1978). At the time of ratification, the terms " general," " supervision," " superintendent," and " superintend" were defined as follows:

General: Pertaining or applicable to or predicable of all objects of a given class, ...; universal within the limits of the class or group of things considered; ... [c]omprising or pertaining to the whole; collective: opposed to partial; ... [n]ot specifically limited in scope, operation, or function; not restricted to special details, particulars, or occasions: used of authority conferred, or of office or employment exercised.

The Century Dictionary 2482 (1889) (emphasis in original).

Supervision: The act of supervising or overseeing; oversight; superintendence; direction.
Superintendent: One who superintends, or has the oversight and charge of something with the power of direction.
Superintend: To have charge and direction of, as of a school; direct the course and oversee the details of (some work, of the construction of a building, or movement, as of an army); regulate with authority; manage.
Syn. To overlook, supervise, guide, regulate, control, ...

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