Thompson v. Craney, 95-2168-OA

• Decision Date: 29 March 1996
• Docket Number: No. 95-2168-OA,95-2168-OA
• Citation: 546 N.W.2d 123,199 Wis.2d 674
• Parties: , 108 Ed. Law Rep. 904 Tommy G. THOMPSON, Governor of the State of Wisconsin, Petitioner, John T. Benson, State Superintendent of Public Instruction, Necessary-Party-Respondent, v. Terrance L. CRANEY, Felmers Chaney, Elizabeth Burmaster, Mike Read, Ray Heinzen, Sheryl Miller, Leon Todd, Ody Fish, Patty Hankins, Benjamin Kanninen, Anne Arnesen, Jan Serak, Mona Steele, Crystal McLean, Louis Thompson, Peter Hamon, William Hallstrom and Richard Swantz, Respondents.
• Court: Wisconsin Supreme Court

Page 123

546 N.W.2d 123

199 Wis.2d 674, 108 Ed. Law Rep. 904

Tommy G. THOMPSON, Governor of the State of Wisconsin, Petitioner John T. Benson, State Superintendent of Public Instruction Necessary-Party-Respondent, v. Terrance L. CRANEY, Felmers Chaney, Elizabeth Burmaster Mike Read, Ray Heinzen, Sheryl Miller, Leon Todd, Ody Fish Patty Hankins, Benjamin Kanninen, Anne Arnesen, Jan Serak, Mona Steele, Crystal McLean, Louis Thompson, Peter Hamon, William Hallstrom and Richard Swantz, Respondents.

No. 95-2168-OA.

Supreme Court of Wisconsin.

Argued Nov. 28, 1995.

Decided March 29, 1996.

For the petitioner there were briefs by Jon P. Axelrod, Joseph A. Ranney, Paul G. Kent and DeWitt, Ross & Stevens S.C., Madison, and oral argument by Jon P. Axelrod.

For the necessary-party-respondent the cause was argued by Laura Sutherland, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

For the respondents there was a brief by Lester A. Pines, Lee Cullen and Cullen, Weston, Pines & Bach, Madison, and oral argument by Lester A. Pines.

Amicus curiae brief was filed by Gordon B. Baldwin, Madison, for PRESS Supporting Constitutionality of 1995 Act 27.

Amicus curiae brief was filed by Christopher L. Wolle, Madison, for Assembly Speaker David Prosser, Jr.

Amicus curiae brief was filed by Steven J. Schooler, P. Scott Hassett and Lawton & Cates, S.C., Madison, for The Wisconsin Association of School District Administrators, Inc. and The Wisconsin Congress of Parents and Teachers, Inc.

Amicus curiae brief was filed by Michael J. Julka, Frank C. Sutherland and Lathrop & Clark, Madison, for The Wisconsin Association of School Boards, Inc.

Amicus curiae brief was filed by Glenn M. Stoddard and Garvey & Associates, S.C., Madison, for the Friends of Public Education, Inc.

DAY, Chief Justice.

This is an original action to determine the constitutionality of those parts ¹ of 1995 Wis.Act 27, the budget bill, which created a state Education Commission, a state Department of Education (DOE), and the position of state Secretary of Education (SOE). By this act, the non-partisan elected state Superintendent of Public Instruction (SPI) is made the chair and a member of the new Education Commission. We conclude that 1995 Wis.Act 27 unconstitutionally gives the former powers of the elected state Superintendent of Public Instruction to appointed "other officers" at the state level who are not subordinate to the superintendent. We therefore hold the education provisions of 1995 Wis.Act 27 void.

On June 29, 1995, the Wisconsin Legislature enacted 1995 Wis.Act 27. Among other provisions, the act created a new state department, the Department of Education; a new Education Commission, which supervises the DOE; and a new office, the Secretary of Education. See 1995 Wis.Act 27, § 177m. The Secretary of Education administers the DOE and is appointed by the Governor. Id. The Secretary of Education serves at the pleasure of the Governor. Id. The Education Commission does not have the authority to remove the Secretary of Education.

Since Wisconsin achieved statehood in 1848, the administration at the state level of public education in Wisconsin has been the duty of the Superintendent of Public Instruction, who is elected in a non-partisan statewide election pursuant to Article X, § 1 of the Wisconsin Constitution. Under 1995 Wis.Act 27, the SPI is the chair and a member of the new Education Commission. The voting members of the Education Commission, with the exception of the SPI, are appointed as follows: two members appointed by the Governor; two members appointed by the senate majority leader; two members appointed by the speaker of the assembly; one member appointed by the senate minority leader; and one member appointed by the assembly minority leader. See 1995 Wis.Act 27, § 177m. 1995 Wis.Act 27 gives the authority to perform many functions related to education in Wisconsin, including some of the former duties of the SPI, to the new Secretary of Education and the Education Commission. See id. §§ 3846-3854, 3859-3861, 3863-3866, 3871, 3873-3874, 3882-3884, 3886-3889, 3894-3899, 3901, 3907.

Respondents ² claim that 1995 Wis.Act 27 strips the Superintendent of Public Instruction of his power, under Article X § 1 ³ of the Wisconsin Constitution, to supervise education in Wisconsin. Legislative acts are presumed constitutional, and the party challenging a legislative act must prove it unconstitutional beyond a reasonable doubt. GTE Sprint Communications Corp. v. Wisconsin Bell, 155 Wis.2d 184, 192, 454 N.W.2d 797 (1990). All doubts as to an act's constitutionality must be resolved in favor of upholding the act. Id.

This court interprets provisions of the Wisconsin Constitution de novo. Polk County v. State Pub. Defender, 188 Wis.2d 665, 674, 524 N.W.2d 389 (1994). In interpreting a constitutional provision, the court turns to three sources in determining the provision's meaning: the plain meaning of the words in the context used; the constitutional debates and the practices in existence at the time of the writing of the constitution; and the earliest interpretation of the provision by the legislature as manifested in the first law passed following adoption. Id.; State v. Beno, 116 Wis.2d 122, 136-37, 341 N.W.2d 668 (1984).

We thus first examine the plain meaning of the language in Article X, § 1 of the Wisconsin Constitution, within the context of the document and its amendments. As first adopted in 1848, Article X, § 1 provided:

The supervision of public instruction shall be vested in a state superintendent, and such other officers as the legislature shall direct. The state superintendent shall be chosen by the qualified electors of the state, in such manner as the legislature shall provide; his powers, duties, and compensation shall be prescribed by law. Provided, that his compensation shall not exceed the sum of twelve hundred dollars annually.

In 1902, Article X, § 1 was amended to read:

The supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct; and their qualifications, powers, duties, and compensation shall be prescribed by law. The state superintendent shall be chosen by the qualified electors of the state at the same time and in the same manner as members of the supreme court, and shall hold his office for four years from the succeeding first Monday in July. The state superintendent chosen at the general election in November, 1902, shall hold and continue in his office until the first Monday in July, 1905, and his successor shall be chosen at the time of the judicial election in April, 1905. The term of office, time and manner of electing or appointing all other officers of supervision of public instruction shall be fixed by law.

Some cosmetic changes were made to Article X, § 1 by amendment in 1982. The word "his" was deleted before the word "office" in the second sentence; the word "four" was changed to "4"; and the sentence discussing the 1902 and 1905 elections for state superintendent was deleted.

Petitioner, Governor Thompson, argues that the plain meaning of Article X, § 1 allows the legislature to allocate the power of supervision of public education between the elected SPI and the "other officers" that the Article mentions. In support of this argument, Petitioner points to the first sentence of Article X, § 1, which provides that "[t]he supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct"; Petitioner argues that the conjunctive "and" in this phrase must mean that the power of supervision is shared by the SPI and the "other officers." Petitioner also notes that the 1902 amendment to Article X, § 1 refers to "other officers of supervision," which, according to Petitioner, shows that "other officers" are intended to possess supervisory power along with the SPI, and not to be subordinate. Finally, Petitioner notes that the phrase "his powers, duties, and compensation" was replaced with the phrase "their qualifications, powers, duties, and compensation," which, Petitioner argues, shows that the legislature possesses the ability to establish the functions and authority of both the SPI and the "other officers."

Petitioner also claims that the 1902 amendment, which deleted the comma from the original first sentence of Article X, § 1, results in an unambiguous sentence granting the legislature the ability to determine how the power to supervise education should vest in both the SPI and the "other officers." Article X, § 1 formerly read: "The supervision of public instruction shall be vested in a state superintendent, and such other officers as the legislature shall direct." We agree with Respondents, however, that the sentence does not unambiguously convey this meaning; in fact, the sentence may have the same meaning either with or without the comma. Furthermore, the comma may have been deleted merely for stylistic reasons. We are not persuaded that this change of punctuation was intended to alter the meaning of the provision, or did result in any alteration. See Morrill v. State, 38 Wis. 428, 434 (1875), rev'd on other grounds, 154 U.S. 626, 14 S.Ct. 1206, 23 L.Ed. 1009 (1877) ("In giving construction to a statute the punctuation is entitled to small consideration, for that is more likely to be the work of the engrossing clerk or the printer, than the legislature."). However, Petitioner correctly observes that Article X, § 1 does use the term "other officers" and not the term "inferior officers," which appears in Article IV, § 28 of the 1848 constitution. ⁴

Respondents argue that the plain meaning of "supervision" and "vested" in the context of the writing of our state constitution, supports their reading of Article X, § 1. Respondents note that Article X, § 1 is one of only four articles in the Wisconsin...