Evans v. Andrus
| Decision Date | 25 June 1993 |
| Docket Number | No. 20671,20671 |
| Citation | 124 Idaho 6,855 P.2d 467 |
| Parties | , 84 Ed. Law Rep. 522 Jerry L. EVANS, Petitioner, v. Cecil D. ANDRUS, in his capacity as Governor of the State of Idaho; and Idaho State Board of Education, Respondents. Boise, June 1993 Term. |
| Court | Idaho Supreme Court |
Larry EchoHawk, Atty. Gen., and Elaine F. Eberharter-Maki, Boise, for petitioner. Elaine F. Eberharter-Maki, argued.
Elam, Burke & Boyd, Boise, for respondents. Bobbi K. Dominick, argued. M. Allyn Dingel, Jr., appearing.
During its 1993 session, the Idaho State Legislature passed House Bill 345 ("H.B. 345"), as amended, and it was signed into law by Governor Cecil D. Andrus, effective July 1, 1993. In enacting it, the legislature deleted from (indicated by strikeout) and added to (indicated by underline) existing law:
IN THE HOUSE OF REPRESENTATIVES
BY EDUCATION COMMITTEE
RELATING TO THE STATE BOARD OF EDUCATION; AMENDING SECTION 33-101, IDAHO CODE, TO SPLIT THE STATE BOARD OF EDUCATION INTO A COUNCIL FOR HIGHER EDUCATION AND A COUNCIL FOR PUBLIC SCHOOLS; AMENDING SECTION 33-102, IDAHO CODE, TO INCREASE THE NUMBER OF MEMBERS ON THE STATE BOARD OF EDUCATION AND PROVIDE APPOINTMENT TO THE RESPECTIVE COUNCILS; AMENDING SECTION 33-102A, IDAHO CODE, TO CREATE THE OFFICE OF THE EXECUTIVE OFFICER OF THE COUNCIL FOR HIGHER EDUCATION; AND AMENDING SECTION 33-2802, IDAHO CODE, TO PROVIDE THAT THE UNIVERSITY OF IDAHO SHALL BE GOVERNED BY THE COUNCIL FOR HIGHER EDUCATION AND BOARD OF REGENTS OF THE UNIVERSITY OF IDAHO.
Be It Enacted by the Legislature of the State of Idaho:
Section 1. That Section 33-101, Idaho Code, be, and the same is hereby amended to read as follows:
For the purposes of section 20, article IV, of the constitution of the state of Idaho, the state board of education and all of its offices, agencies, divisions and departments shall be an executive department of state government.
Where the term "state board" shall hereafter appear, it shall mean the state board of education [DELETED: and board of regents of the University of Idaho] [ADDED: and, notwithstanding any other provision of law to the contrary, where appropriate, pursuant to the assignment of duties provided in this section, where such reference is relative to postsecondary institutions and programs or associated arrangements such reference shall mean the council for higher education and board of regents of the University of Idaho, and, where such reference is relative solely to public schools, elementary through secondary levels, and associated programs, such reference shall mean the council for public schools.]
SECTION 2. That Section 33-102, Idaho Code, be, and the same is hereby amended to read as follows:
33-102. MEMBERSHIP--APPOINTMENT--TERM OF OFFICE--QUALIFICATIONS--PLACE OF OFFICE. The state board of education shall consist of the state superintendent of public instruction, who shall be an ex-officio voting member and who shall serve as executive secretary of the board for all elementary and secondary school matters, and [DELETED: seven (7)] [ADDED: eight (8)] members appointed by the governor, each for a term of five (5) years . Annually on the first day of March the governor shall appoint members to fill the board positions for which the terms of office have expired. The governor shall, by appointment, fill any vacancy on the board, such appointment to be for the unexpired term of the retiring member. Appointment to the board shall be made solely upon consideration of the ability of such appointees efficiently to serve the interests of the people, and education, without reference to locality, occupation, party affiliation or religion. Any person appointed to said board shall have been a resident of the state for not less than three (3) years prior to the date of appointment; and shall qualify and assume the duties in accordance with laws governing similar appointments
and qualifications for, office on other state boards. All appointments of members to the state board of education made after the effective date of this act must be confirmed by the senate.
Members of the state board of education holding office on the effective date of this act shall continue in office for the balance of the term to which they were appointed [added: and shall be designated, by the governor, to the respective council of which they shall be a member in such a manner as to assure that no two (2) members of either council are serving terms which expire in the same year].
The state board shall have and maintain its office at the state capitol.
SECTION 3. That Section 33-102A, Idaho Code, be, and the same is hereby amended to read as follows:
33-102A. OFFICE OF THE STATE BOARD--EXECUTIVE OFFICER--APPOINTMENT--COMPENSATION--
DUTIES AND POWERS. There is hereby created as an executive agency of the state board of education the office of the state board of education[ADDED:], council for higher education]. The [DELETED: state board of] [ADDED: council for higher] education is hereby authorized to appoint an executive officer of the [DELETED: office of the state board of education][ADDED: council] who shall serve at the pleasure of the [DELETED: board] ADDED: council] and shall receive such salary as fixed by the[DELETED: board] [ADDED: council]. The executive secretary may be appointed as the executive officer. The executive officer shall, under the direction of the [DELETED: state board of education] [ADDED: council], have such duties and powers as prescribed by the said board of regents and the [DELETED: state board of] [ADDED: council for higher] education, not otherwise assigned by law.
SECTION 4. That Section 33-2802, Idaho Code, be, and the same is hereby amended to read as follows:
33-2802. BOARD OF REGENTS [ADDED: COUNCIL FOR HIGHER EDUCATION]. The general supervision, government and control of the University of Idaho is vested in [DELETED: a state board of] [ADDED: the council for higher] education which also constitutes the board of regents of the university and is known as the [DELETED: state board of] [ADDED: council for higher] education and board of regents of the University of Idaho.
The parties to this proceeding have stipulated the following:
As of July 1, 1993, Petitioner and Respondents will begin undertaking the tasks assigned by H.B. 345, such as: (1) Respondent Andrus will appoint an eighth member to the Respondent Board; (2) the membership of the council for public schools and the council for higher education will be designated by the Governor; and (3) Respondent Board intends to treat the council for public schools and the council for higher education as two autonomous councils, with each council making decisions in their independent spheres of responsibility, with no oversight or ratification process necessary from the Board as a whole, with the Board acting as a whole only to address those matters identified in Idaho Code section 33-101(3).
(Emphasis added.)
Petitioner, Jerry L. Evans, the Idaho State Superintendent of Public Instruction and an ex-officio member of the Idaho State Board of Education ("Board of Education"), brings this original proceeding pursuant to Idaho Const. art. 5, § 9, and I.A.R. 43 and 44. 1 He asks this Court to issue an order declaring H.B. 345 unconstitutional, and for orders preventing the Governor of the State of Idaho and the Board of Education from complying with their duties as set forth in H.B. 345.
The thrust of H.B. 345 is to divide the Board of Education into three autonomous governing bodies. These bodies would consist of two "councils," one...
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