By Itasca Small
After more than a year of legislative attempts to eviscerate the Office of State Superintendent of Public Instruction (SPI) in favor of the state board of education (SBE), Senate Leadership reportedly fully intends to effect the unconstitutional transformation by striking the most egregious parts of SB1416 into APPROPRIATIONS BILLS!
Such action, which is apparently common practice by our legislators, is just as unconstitutional under Article IV, Part 2, §20, as it was last year when they pretended to transform the state board into a state agency for the purpose of pretending that the board could be a hiring employer of state employees.
§ 20 governs appropriations bills, and explicitly requires that ONLY APPROPRIATIONS can be embraced in such bills!
The bill’s subject doesn’t matter on this point; it cannot include changing, clarifying or assigning powers and duties to any entity! Those actions are not specifically appropriating funds!
But, the legislature regularly strikes into appropriations bills such pet projects that couldn’t pass by the normal process!
Clearly, it is past time for We the People to demand this unconstitutional and unethical practice end!
In the propaganda phase of pushing SB1416, Senate President Pro Temporé, Sylvia Allen has published two documents purporting to justify the legislature’s ongoing attempts to force the destruction of our Office of SPI down our throats. Senator Allen has written and claimed these documents as her own, but, if one watches the Senate Education Hearing Video on SB1416, Senate President Andy Biggs “testifies” to the general legal analysis presented in the documents. http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=16631
Senator Allen’s decrying comparisons to the Wyoming SPI court case misdirect the pertinent details brought to light by that State’s Supreme Court in finding for the former SPI, Cindy Hill.
She is correct that certain details do not match those of the Arizona Senate’s legislation, and are irrelevant here!
However, the detail that most certainly does apply is the Arizona State Supreme Court decision in Hudson v. Kelly, 1953, cited by the Wyoming Court in its recent decision. Senator Allen ignores our own State Supreme Court’s crucial analysis of constitutional issues that also apply here.
In her first document, Senator Allen states in-part:
“. . . The Legislature has the full vested authority and duty to prescribe, IN ANY MANNER WHATSOEVER, the powers and duties of both the State Board of Education and the Superintendent of Public Instruction. Neither of these constitutional entities has any power unless expressly granted by the Legislature and approved by the Governor.” (Emphases added.)
As evidenced in the excerpts appearing below, Hudson v. Kelly clearly destroys that argument, as well it should! Because a constitution does not establish entities within its structure without imbuing them with powers and duties inherent in the nature of each entity!
Constitutions would have no purpose if the entities established had no inherent powers! If the legislature and governor had the unlimited power Senator Allen ascribes to them, we would most assuredly be RULED by an oligarchic few!
Oh! That’s right! When our state government can already deliberately contravene the Constitution and Statutes with actions such as pretending to make the SBE a state agency to give the board hired employees, we are already a far-piece down the road to oligarchic tyranny under the extraconstitutional administrative state.
In both documents, Senator Allen emphasizes the Constitution’s declaration in Article XI, §2:
Conduct and supervision of school system
Section 2. The general conduct and supervision of the public school system shall be vested in a state board of education, a state superintendent of public instruction, county school superintendents, and such governing boards for the state institutions [state colleges and universities] as may be provided by law.
Senator Allen further states:
“Article 11[XI], Section 2 of the Arizona Constitution specifically enumerates that the conduct and the supervision of the [of the] public school system shall be vested in . . . It is interesting that the Arizona Constitution has separated out multiple entities that have supervision authority over the school system, NONE OF WHICH ARE RANKED HIGHER THAN THE OTHERS.” (Emphasis added.)
Really, Senator Allen? Existing statute—15-203— declares that the SBE shall: “Exercise general supervision over and regulate the conduct of the public school system and adopt any rules and policies it deems necessary to accomplish this purpose.” Statutes do not declare any of the other three categories of entities “shall exercise general supervision over and regulate the conduct . . .”
And, yet the above Constitution Section vests general conduct and supervision in all four categories.
Hence, the legislature has already decreed the SBE to be RANKED HIGHER THAN ALL THE OTHERS! And, has prescribed to the SBE the power to “adopt any rules and policies it deems necessary . . .” abrogating its—the legislature—constitutional responsibility pursuant to Article XI.§1.A, to enact official education policy which the SPI is responsible to execute, with the SBE acting as an advisory board to facilitate rendering the official policy/law executable by the SPI through the DoE (ADE).
The paragraph cited does not “enumerate” anything! It also does not state “the conduct and the supervision,” which has a different meaning than the actual language. It makes a single statement that does encompass four types of constitutional entities.
However, “The general conduct and supervision . . . shall be vested in . . .” is read in context of constitutional establishment of entities clearly responsible for different powers and duties in an obvious hierarchy that must begin with the only state-level executive officer established, not in Article XI, but in Article V, Executive Department. It does NOT give the legislature carte blanche to just assign powers and duties willy-nilly to any of the four categories of entities! And, the SBE is ONLY a BOARD! it is not executive, legislative nor judicial!
“The general conduct and supervision” vested in four categories of entities means the four categories are responsible for powers and duties as appropriate to the nature of the entity performing them. It is bizarre to presume that it means the legislature can assign powers and duties “. . . in any manner whatsoever.”
By Senator Allen’s flawed reasoning, that would mean the legislature could declare the county school superintendents responsible for directing the state-level SPI’s every move in executing policies adopted by them, and in ordering the ADE to administer them; it could give them power and duties to hire, fire, supervise and direct ADE employees. Or, it could give these powers and duties to the governing boards of the state colleges and universities. If the legislature could make assignments in any manner whatsoever, there would be nothing to stop them from making the SPI subservient to the county superintendents and/or the Board of Regents, etc.
To further extend the flawed reasoning, the legislature could lawfully expand what it has done by fiat until now: Give the SBE ever-more legislative, executive and judicial powers and duties; shocking LIFE into a hybridized Frankenstein’s Monster attempting to perform all manner of actions that the board itself is incapable of performing. The result is the unconstitutional “Executive Director” and other unlawful “employees” hired by the board pretending to be a state agency with the collusion of the governor’s office and Dept. of Administration.
And, the board is responsible on-paper for reams of “enumerated” powers and duties impossible for it to actually perform without the SPI and the ADE! Which is, of course, why SB1416 is intended to subjugate the SPI and the ADE to the governor-controlled SBE! The latter “itself” cannot do anything meaningful without the SPI and the ADE. . . .
Senator Allen also claims:
“. . . As you can clearly see in the text of the bill, the Superintendent in our situation still administers the entire Department of Education, regulates school districts and programs and implements the school finance statutes. If this proposal were doing that [leaving the office as an empty shell with no powers and duties], it would be unconstitutional because it requires the Legislature to prescribe those duties and responsibilities.”
The senator’s argument is disingenuous. The legislature has already abrogated its own constitutional responsibility and authority to the SBE, giving it exclusive authority over the department and over the SPI:
- The SBE has exclusive authority and power to adopt policy, rules and regulations IT deems necessary.
- The ADE is administered first through the SBE, which shall be the policy – determining body of the department. (By statute – not the Constitution, “IT” determines policy, not the legislature!)
- The SBE has been given executive authority over state employees outside the only lawful ADE employer—the SPI.
- The SPI “is responsible for the execution of rules and policies adopted by the state board.” (Not by the legislature!)
- The SPI shall execute, under the direction of the SBE, the policies of the SBE, and the new language would add that the SPI will execute “in cooperation with the staff of the board.” Staff that lawfully and constitutionally is employed by the same SPI!
- The statutes would negate the SPI’s authority pursuant to Article V, as the state-level executive officer over Public Instruction; who is the only lawful employer through the ADE.
The senator clearly does not understand that our SPI “administering” the entire DoE (ADE), etc, subject to the overarching authority of the SBE—while the SBE is further allowed to operate separately as an employer desperately trying to perform executive, legislative and judicial powers and duties—is all prima facie evidence that the legislature has already prescribed duties and responsibilities to the SBE that are unconstitutional and render the Office of SPI as an empty shell with NO powers and duties inherent in the executive office, as established by Article V.
What would SB1416 and any iteration of the usurpations thereof alone or as fragments inserted into appropriations bills, actually do, in light of Senator Allen’s baseless argument and Hudson v. Kelly?
- The proposed new language attempts to “clarify” that the SBE—which is an “IT”—is equivalent to an “officer,” “who” is supreme over the state superintendent.
- It would finish subjecting the Office of SPI to subservience under the SBE.
- The office of the elected state-level executive officer at the head of the “Public Instruction” Branch of the Executive Department would be an empty shell.
- The SPI would no longer be an executive officer over “public instruction.”
- The language would complete the SPI’s demotion to mere “Lackey,” required to do anything the board ordered with no regard for enacted law, nor the will and mandate of the people. (Already happening with the Common Core Agenda!)
Hence, the office would be an empty shell with none of the executive authority inherent in its position at the head of one of the Executive Department Branches. It would, in effect, be an entirely new entity subservient to the SBE (a surrogate for the governor) created by unconstitutional legislative enactment. Hudson v. Kelly certainly would apply!
Our Supreme Court’s 1953 decision clearly exposes before-the-fact, the unconstitutional attempt by the legislature to finalize destruction of the inherent authority, power and duties of the SPI!
Senator Allen exhibits further lack of understanding of the constitutional structure when she forgets the legislature’s responsibility to enact official education policy for the SPI to execute.
When she accuses those of us who do not agree with making the appointive board the “single power holder over education” in favor of “only” an SPI “to have supervision over the public education system . . .” she exposes Truth: She and her ilk cannot have their cake and eat it too!
They cannot give all power to the SBE to determine and adopt any policy it deems necessary without abrogating the legislature’s authority and responsibility to enact official education policy.
We do not seek “a single power holder over education.” We seek the constitutional structure of elective legislative responsibility working hand-in-glove with the elective state-level executive officer tasked with executing lawful enactments.
AZ Supreme Court decision, Hudson v. Kelly, 1953:
http://law.justia.com/cases/arizona/supreme-court/1953/5817-0.html
The following are excerpts highly pertinent to the SB1416 discussion:
[There were emphases in the original, but it did not copy/paste here; the emphases appearing in these excerpts are added herein for our current purposes.]
“We think the court [trial court] was in error when it said that the only implied restriction on the legislature was that of forbidding the imposition of duties that would interfere with the maintenance and preservation of the independence of the three branches of government.
[In the current legislative attempt, there is a further imposition of duties to the SBE that interferes with the maintenance and preservation of the independence of the three branches [departments] of government, by codifying legislative, executive and judicial duties in the appointive, advisory board attached to the Public Instruction Branch of the Executive Department.]
In addition to any implied restrictions, Sections 1 and 9 of Article 5 of the State Constitution have been construed to mean that there is an implied mandate to the legislature to prescribe the powers and duties of the executive officers created by the Constitution in Section 1 of Article 5.
Shute v. Frohmiller, supra; Lockwood v. Jordan, 72 Ariz. 77, 231 P.2d 428. The mandate considered the grant of such powers and duties as would enable the auditor to perform the functions for which the office was created. Under the terms of the mandate the legislature has the power to enlarge or remove the duties and powers of the office as the future might require.
But the language of the sections as construed negatives the power to destroy the offices created by removing all of the duties it was mandated to confer.
Judge Cooley, in his work on Constitutional Limitations, Chapter 5, p. 88, says:
“The frame of the Government, the grant of legislative power itself, the organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the law making authority as strong as though a negative was expressed in each instance.”
On the subject of limitations Judge Ross, speaking for this court, said:
“A limitation on the legislative power may be by direct prohibition or by implication, and when it is by implication its restraints on the Legislature are no less binding than when expressly prohibited.” Consolidated Arizona Smelting Co. v. Egich, 22 Ariz. 543, 199 P. 132, 135.
There was a purpose in the creation of the office of auditor which, by this Act, has been frustrated. We are not hesitant in holding that there exists the implied restriction against abolishing a constitutional office, in fact, if not in name.
It was argued in the Shute case, supra, that if there were no constitutional restrictions upon the legislature in taking away some of the duties of a constitutional officer that it might take all the powers and duties away and in effect abolish the office. With reference to this argument the court said:
“* * * The legislature is given no authority whatever over the existence of any office created by the constitution and the probability that it would, in the exercise of its authority to prescribe powers and duties, go so far as to take all these from any officer and give them to another was so unlikely and remote that no limitation in this respect was placed upon it.” The court was then of the opinion that no such bizarre attempt would ever be undertaken. But in the instant case this “probability” has come to pass, as we view the effect of the Act under consideration. In name only is the office of auditor not disturbed. The constitutional office of auditor contemplates a free and independent auditor, one whose executive actions and judgments are not subject to the dictates, review and approval of some appointive officer.
Thousands of claims involving millions of dollars are now annually audited by the auditor with the aid and assistance of her deputy and numerous employees selected by her and owing allegiance to her. By the provisions of the Act, Section 8(b), the auditor, as controller and head of the division of accounts and control, can only employ and assign assistants with the approval of the commissioner. The auditor’s authority to organize the division, adopt and promulgate rules for the handling of the duties of the division and to interpret and administer the laws relating to the functions of the division, auditing the state’s accounts, must meet the approval of the commissioner. To such an extent has the office been so debased that it cannot be said that the auditor is a free and independent officer. The officer is subject to the whims, caprices and judgment of others, so much so that we are convinced that the office has in reality been stripped of all of its powers and duties.
[The preceding paragraph describes the powers and duties of the state-level executive officer in a manner that must be applied to all such officers, including the SPI. And clearly describes the state to which the legislature has debased and is attempting to further debase that office today!]
In the instant case it appears that the legislature should have known that it 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. Such attempts have uniformly been denounced by courts of last resort.
. . . In State ex rel. Josephs v. Douglas, 1926, 33 Nev. 82, 110 P. 177, 180, . . . the court said:
“Every constitutional officer derives his power and authority from the Constitution, the same as the Legislature does, and the Legislature, in the absence of express constitutional authority, is as powerless to add to a constitutional office duties foreign to that office, as it is to take away duties that naturally belong to it.
“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.” (Citing cases from numerous states.) . . . a constitutional officer may not be legislated out of office. . . . State ex rel. Kennedy v. Brunst, 1870, 26 Wis. 412, 7 Am.Rep. 84, where the court said:
“* * * It would certainly be a very idle provision of the constitution, to secure to the electors the right to choose their sheriffs, and at the same time leave to the legislature the power to detach from the office of sheriff all the duties and functions by law belonging to that office when the constitution was adopted, and commit those duties to some officer not elected by the people. For this would be to secure to the electors the right to choose a sheriff in name merely, while all the duties and substance of the office might be exercised by and belong to an officer appointed by some other authority. * * *”
To make a free and independent constitutional officer subservient to the dictates of some appointive officer is equivalent to abolishing the office and creating another in lieu thereof to exercise the duties and functions belonging to the first office. 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.
We therefore conclude that this Act constitutes an abortive attempt to destroy the independent constitutional office of auditor and to such extent is unconstitutional.”