Electronically Filed

5/22/2020 4:53 PM
Idaho Supreme Court
Karel Lehrman, Clerk of the Court
By: Melanie Gagnepain, Deputy Clerk

DAVID H. LEROY
Attorney at Law and
Special Deputy Idaho Attorney General
802 West Bannock Street, Ste 201
Boise, Idaho 83702
Telephone: (208) 342-0000
Facsimile: (208) 342-4200
Idaho State Bar No. 1359
dave@dleroy.com

BEFORE THE SUPREME COURT OF THE STATE OF IDAHO

IDAHO SUPERINTENDENT OF PUBLIC

Docket No. 47991-2020
INSTRUCTION SHERRI YBARRA, in her
official capacity,
PETITIONER’S REPLY TO THE
Petitioner, ,Vvvvvvvv
RESPONSES OF THE IDAHO
vs.
STATE LEGISLATURE AND
THE BOARD OF EDUCATION
THE LEGISLATURE OF THE STATE OF
IDAHO, BY REPRESENTATIVE SCOTT BEDKE
in his official and representative capacity as
SPEAKER OF THE HOUSE OF
REPRESENTATIVES AND SENATOR BRENT
HILL, and representative capacity as
in his official

SENATE PRESIDENT PRO TEM and THE

IDAHO STATE BOARD OF EDUCATION
VVVVVVVVVVV\

by
DEBBIE CRITCHFIELD, in her official and
representative capacity as PRESIDENT OF THE
BOARD,

Respondents.
L
COMES Now the Petitioner Sherri Ybarra, by and through her attorney, Special Idaho
for a Reply t0 the Responses filed herein by both
Deputy Attorney General David H. Leroy, and

Board of Education urges, cites and contends as

the Idaho State Legislature and the Idaho State

follows:

PETITIONER’S REPLY TO THE RESPONSES OF THE IDAH

O STATE LEGISLATURE
AND THE BOARD OF EDUCATION - 1
 I.

SYNOPSIS

the Superintendent was created in territorial days and the position was
The office of

established as a “Constitutional Officer” with the

adoption of the Idaho Constitution and remains

such today.

duties and responsibilities, as between the Superintendent

of Public
The division of powers,

defined or assigned in
Instruction and the State Board of Education, has never been appropriately

either by the Territorial Legislature 0r the State

either the Idaho Constitution or the statutes enacted

Legislature.

vacuum, Idaho case law as set forth below and that of other states
In the incidence of such a

determined by the history, practices and intent

so situated, provides that the division or assignment is

of the Territorial Legislature and Members of the Constitutional Convention. The leading Idaho

Wright Callahan, 6] Idaho 177, 99 P 2d 964 (1940), which

authority established by this Court is v.

implied and inherent

holds that our constitutional framers had in mind the territorial duties as

Article IV, Section ofthe Constitution

constitutional roles for ldaho’ s executive officers as listed in
1

and the opportunity of defining

of 1889. The instant case provides this Court with both the necessity

Instruction and the Board for the

those respective roles of the Idaho Superintendent of Public

administration of the primary and secondary schools of this State.

II.

STATEMENTS AND REBUTTAL FACTS

State Superintendent of Public Instruction

In the Verified Petition filed herein, the Idaho

PETITIONER‘S REPLY TO THE RESPONSES OF THE IDAHO STATE

LEGISLATURE
AND THE BOARD OF EDUCATION - 2
asserts that:

1. As

Article IV, Section

2.
Superintendent, she

I
is

of the Idaho Constitution and the precedent of

That the Technology Group ofthe Idaho Department

W,
imbued with implied powers and inherent authorities under

supra.

ofEducation under her direction and

intertwined with the entirety of the

control is a support unit with varied responsibilities and fully

traditional fimctions of such constitutional duties.

87% of said personnel and

3. Senate Bill 1410 zeros out the line item appropriation for

v. State Legislature. Idaho

impexmissable under the precedent of Williams
1 1 1
operations which is

156, 722 P 2d 465 (1986)

4. A corrective declaration ofunconstitutionality by this Court to the Legislature and Writs

Board can define the proper respective roles of the parties and
0f Mandate and Prohibition to the

allow unimpeded public school functions for FY 2020-2021.

the following additional factual

In further support and elaboration of those contentions,

declarations with exhibits are also filed herewith:

1. The Declaration of Sherri Ybarra, contains a chronology ofher contacts related to Senate

legislative session and reaffinns the damage to both technology and

Bills 1409 and 14 l 0 during the

Group will inflict upon the

all other functions within her office which the loss of the Technology

Department of Education.

to SB
2. The Declaration ofMarilyn Whitney, contains a chronology ofher contacts related

1409 and 1410 during the legislative session.

Maintain
3. The Declaration of David H. Leroy attaches a copy of the “Act to Establish and

PETITIONER’S REPLY TO THE RESPONSES 0F THE IDAHO STATE LEGISLATURE

AND THE BOARD OF EDUCATION - 3
 Session, 891).
a system of Free Schools,” Idaho Legislature, First (1

4. The Declaration Expert Report of Russell A. Joki, Ed. D with Vita attached discusses the

ntendent of Public Instruction and the

history and comparative roles and duties of the Idaho Superi

Board of Education during the Twentieth Century and

to date.

III.

AND 1410 WERE ORDINARY APPROPRIATIONS BILLS WITH THE ATYPICAL

SB 1409

RESULT OF THREATENING ADMINISTRATIVE DISRUPTION UPON

THE

’S C SCHOOLS
SUPERINTENDENT OF PUBLIC INSTRUCTION AND IDAHO PUBLI
that the appropriations bills at
The Declaration of Representative Wendy Herman explains

2% reduction across the board”, merely

“a 7% reduction” for the
issue herein were “less than a

IT” and that the superintendent is “inaccurate” to

Superintendent’s budget, designed t0 “centralize

suggest that the true purpose was to “impair the functioning of her office.” (Herman Declaration,

Paul Headlee declares that the “bill

paragraphs 17, 18, 19 and 22) Legislative Service Officer

sponsors” intent was to consolidate IT” “consistent with (Section ) 33-1330), Idaho Code,” with

Board,” although the “data and

“supervision of the Technology Group” “transferred to the

9! fl
would continue to be accessible to the Superintendent and the Department of
information

8 and 20) This isjust another instance where “JFAC

Education.” (Headlee Declaration, paragraphs 1

agency.” (Headlee Declaration,

and the Legislature commonly make changes to programs within an

Paragraph 24)

of Sherri Ybarra and Marilyn Whitney detail that the subtext of

In contrast, the Declarations

issues and histories and intents. The attached

these Bills did indeed reportedly relate to other

PETITIONER’S REPLY TO THE RESPONSES OF THE IDAHO

STATE LEGISLATURE
AND THE BOARD OF EDUCATION - 4
chronologies confirm that the Superintendent and the Department were first officially informed of

s as an accomplished fact late in the Session

the intent to eliminate public school technology service

24‘“ states that the

and only via the budget setting process. In fact, Ms. Whitney’s entry for February

ment about the loss of 87% of the Technology

first official notice from a legislator to the Depart

p.m. that Monday when “Rep Honnan said the decision had
Group occurred in the meeting at 3 :30

Bills were adopted without any

been made.” (Whitney Declaration, Attachment, Page 4) Thus,
the

Significantly, there is no public testimony taken or other

consultative process whatsoever.

n
opportunity for open policy debate on appropriatio
bills.

that the stated intent of SB 1409 was to “consolidate” or

The Petitioner acknowledges

“centralize” data management. Yet, no saving or economizing is promised or accomplished. The

such a role for the Board by statute or

Legislature does indeed have the authority to expand

does not have the power to prevent the Superintendent’s ability to manage day
appropriation. But it

ment of
to day statewide public school needs by eliminating the computer center from the Depart

Education at the same time, as does SB 1410.

do with requiring the legislative

Further, Idaho Code Section 33-133 has nothing to

for the Idaho Public Schools. In fact,

consolidation to the Board ofoverall data management systems

the Idaho Attorney General’s Office, through the Deputy Attorney General assigned to the

In an official March 16, 2020 letter opinion

Department of Education has opined upon that topic.

:
to Representative Lance Clow, Deputy Attorney General Leslie M. Hayes wrote as follows

“Does Idaho Code section 33-133 bear on the question of authority over

student data?
with regard to
Idaho Code section 33-133 primarily deals with privacy
student data. It provides for FERPA compliance,
protec tion with regard

PETITIONER’S REPLY TO THE RESPONSES OF THE IDAHO STAT

E LEGISLATURE
AND THE BOARD OF EDUCATION - 5
 to public records requests, and aggregation of data that will be disclosed.
Subsection (3) states:
Unless otherwise provided for in this act, the executive office of the state

board of education shall be the entity responsible for implementing the

provisions of this act. All decisions relating to the collection and
safeguarding of student data shall be the responsibility of the executive
office of the state board of education.
This provision places the responsibility for data privacy on the Board.
Although it states that the Board is responsible for “decisions relating

to the collectionand safeguarding of student data,” this statement is made

in the context of the whole statute. The provision simply
places ultimate
that SDE is
authoritv for data securitv on the Board. It does not provide
precluded from having a technologv services unit that administers a data
with the
system. However, SDE’s technology services unit must comply
Code section 33-133.”
data security requirements of the Board under Idaho
(emphasis added)

An Attorney General’s Opinion

Hollv Care Center v. State

is entitled to

Department of Emplovment,
persuasive consideration before this Court.

1 10 Idaho 76, 714 P 2d 45 (1986) m

v_._W__the_, 114 Idaho 907, 762 P 2d 820 (1988)

Thus, the sugge stion that either this statute or Federal law require a transfer
of either systems

or personnel to the Board and away from the Department is false. Although the Legislature may

make such a transfer, it can not leave the Superintendent without computer capacity.

Finally, even the Board itself has recognized the propriety of having the Superintendent and

the Department collect, control and manage student data for all purposes. The Board’s own

Education Administrative Rules on Thoroughness, IDAPA 08.02.03.1 15, provide as follows:

DATA COLLECTION.

“The State Department of Education will collect the required information

from participating school files for state and federal reporting and
decision—making. The enrollment collection will contain information
about the enrollment of the student attributes such as unique student
identifier, active special education, Limited English Proficient (LEP),

PETITIONER’S REPLY T0 THE RESPONSES OF THE IDAHO STATE LEGISLATURE

AND THE BOARD 0F EDUCATION - 6‘
 lunch status. The
migrant, grade level, gender, race, and free/reduced
ing requirements
collection will be done in accordance with the report
or as needed for state
established in Chapter 10, Title 33, Idaho Code,
school is
and federal accountability purposes. Each participating
submitted in the
required to verify and assure the accuracy 0f the data
files.”

Board’s
As noted in the Declaration of Russell A. Joki, pages 8-9, paragraphs 46-50, the

focus on both the importance and use of technology,

as well as its IDAPA commands to the

collection, effectively concede that this is a proper role for the detailed
Department 0n data

y concern for the Board itself.

management of a constitutional Superintendent, not a policy or securit

IV.

THE LOSS OF COMMAND, CONTROL AND CO-ORDINATION OF THE TECH

NOLOGY

LY
GROUP IMPAIRS ALL DEPARTMENT OF EDUCATION OPERATIONS, NOT MERE
ISOLATED PROGRAMS
“centralize”
As noted above, the argument that the Technology Group must be transferred t0

operations in compliance with the Student Data Accessability,

Transparency and Accountability Act

upon proper analysis. Ofmuch greater consequence, the so-called

of2014, Idaho Code 33-] 33 fails

part of what the Technology Group

“longitudinal data system” for student information is but a minor

performed by these technicians

does and is substantially unrelated to most other functions necessarily

for the Superintendent in the discharge of her constitutional functions. Further, there has been no

no gain
challenge or threat to student data security fiom the current
arrangement. Likewise, there is

does not “centralize”

by the transfer of management ofthe same personnel.
It
in security protection

the Technology Group to split away 18 employees and leave 3 computer workers behind.

PETITIONER’S REPLY TO THE RESPONSES OF THE IDAHO STAT

E LEGISLATURE
AND THE BOARD OF EDUCATION - 7
 attached Exhibits “A,”
“B”
Moreover, the Verified Petition at paragraphs 22 and 23, utilizing

“C” and “D” describes in detail the wide range ofduties and mandates which the computer systems

each of the twenty one employees. They

0f the Department 0f Education must accomplish through

many programs and over one hundred other employees to engage, input,
are intertwined with

numerous integral data and systems for themselves and

manage, analyze, communicate and utilize

administrators, teachers, pupils and parents

all other Department employees, local districts, schools,

throughOut the entire State daily. Student data security is a minuscule part 0f the Technology Group

role for public schools.

Further, both the Verified Petition with Exhibits A through D which describe these

interrelationships and the Declaration of Sherri Ybarra now submitted, are completely unrebutted

by the Respondents as to all ofthese other functions performed with and by the Technology Group.

operations, the computer center and its specialists are the nerve center
As with all modern office

through which all official activity must pass.

significant? Will truly

the loss of supervision of these critical employees legally
it
So is

prevent the Superintendent from discharging her constitutional duties?

At page 26 of the Legislature’s Response it notes the case of Board of Elementarv and

that a single board should

Secondary Education v. Nix, 347 So 2d 147 (La. 1997) for the proposition

educational issues. In fact, the Supreme Court of Louisiana therein

have the authority to act on all

more specific and pertinent to our case in holding a portion of a statute

announced a conclusion far

unconstitutional:

“As we have noted, there is no constitutional obj action to the legislative

provision that the superintendent provide staff services for the board
in

PETITIONER'S REPLY TO THE RESPONSES 0F THE IDAHO STATE LEGISLATURE

AND THE BOARD OF EDUCATION — 8
 different issue is presented
the respects noted by 1722(2). Nevenheless, a
when the legislature attempts to deprive the board of any staff whatsoever
with which to accomplish its constitutional function.”
The board is conferred policy-making functions by the constitution.
In the performance of these functions, it should
not be required to rely upon

and personnel selected and employed by another agency.

The
staff services
personnel and their duties necessary for the board to perform
its

constitutionalpolicy-determining fimction should be selected by the board

itself. To accomplish necessary functions, the board should not be
its

required to rely upon employees whose loyalties and

time may be subject to

the direction of others, and who may be selected regardless of suitability to

of another agency. The
the board and furnished merely at the sufferance
legislature cannot deprive a constitutional agency of its
ability to

perform its by depriving it of the means to do so.

constitutional function
The repeal of 17:6A(8) by Section 2 of Act 455 of 1976 is
omitted)
therefore unconstitutional.” Id, 347 So 2d at 155-156 (citations

Significantly, the Idaho Supreme Court cited this case with approval in Williams, supra, 1 l 1

Idaho at 161, 722 P2d at 740.

personnel does indeed prevent

Thus, a loss of supervision of 87% ofthe Technology Group

as well as impair the constitutional

the discharge of a broad range of Department IT functions,

thereon.
implied powers and inherent duties of the Superintendent reliant

V.

WRIGHT V. CALLAHAN IS A FULLY VIABLE, PRECISELY APPLICABLE PRECEDENT

TO DISCERN THE IMPLIED AND INHERENT CONSTITUTIONAL DUTIES OF THE

MODERN SUPERINTENDENT OF PUBLIC INSTRUCTION

Both the Legislature and the Board in their briefing attempt to discount the concept

Court which holds that our constitutional framers had in mind the
traditional
announced by this

territorial duties to become implied and inherent constitutional roles for each of Idaho’s executive

officers as listed in Anicle IV, Section 1 ofthe Constitution of 1889. Wright v. Callahan, 61 Idaho

PETITIONER’S REPLY TO THE RESPONSES OF THE IDAHO STATE LEGISLATURE

AND THE BOARD OF EDUCATION — 9
 Superintendent’ s very
177, 99 P2d 964 (1 940). Significantly, neither Respondent disputes the

in the 1887 Territorial Statutes are now

specific contention that 22 ofthe 25 duties listed for herjob

oftoday’s Technology Group. (Verified

embraced within or discharged by or driven from the tasks

Petition, paragraph 29)

Instead, they offer three other basic arguments: (1)

The case ofPadgett v. Williams, 82 Idaho

limits the interpretation to the Auditor’s particu

lar office, or
28, 348 P 2d 944 (1960) “merely”

doesn’t mean what it says if applied to the Superintendent (2) mm does not apply because the

at the Constitutional
framers expressly rej ected such implied powers for the Superintendent

Convention, or (3) Any such constitutional implied duties which existed were or can be repealed by

act ofthe Legislature under the authority of Article XXI, Section 2 ofthe Constitution which allows

the expiration or amendment of territorial laws.

None of these contentions is valid.

A. PADGETT DOES NOT OVERRULE WRIGHT

Without a great deal of explanation, Lad_g_e_tt, id, distinguished the Attorney General’s

claim
position from the fligm rule, holding that the State’s chief legal officer was not entitled t0
the power to represent all state boards and agencies under a pre-statehood common law power.

reading of this 1960 opinion allowing the Board of Highway Direct

ors to hire its
However, no fair

own counsel compels a conclusion that this decision was intended to abrogate the wfigm rule that

constitutional implied powers arise from territorial officehood, unless the Constitution otherwise

specifies.

Padgett, referred to and utilized Wright

In fact this Court has, both before and subsequent to

PBTITIONER’S REPLY TO THE RESPONSES OF THE IDAHO STAT

E LEGISLATURE
AND THE BOARD OF EDUCATION - 10
 Application of
in several cases without any such criticism or qualification. (See Williams, supra,

62 Idaho 212, 217,

Kaufman, 69 Idaho 297, 302, 308 206 P2d 528, 534 (1949) and Taylor
v. State,

Even, in EggggtL the Court assumed

109 P2d 879, 884-887 (1941)(dissent of Justice Morgan)

“arguendo” that the decision in flfigh; should be taken as correct, before focusing upon the

“common law” powers. Thus, the 1960 Efigflt decision deals more
legislative right to diminish

common law in a modern world, than with

with the history and practice of revising English

overruling Wright by implication. The Williams, Kauffman and Taylor cases confirm this view.

B. THE WRIGHT RULE REMAINS IMPORTANT TODAY AS A BASIS TO

UNDERSTAND THE RESPECTIVE ROLES OF IDAHO’S ARTICLE IV, SECTION 1

CONSTITUTIONAL OFFICERS

states in the late nineteenth century to merely list and not

It was common for emerging

officers, just as Idaho did with Article IV,

specify duties for their constitutional executive branch

in 1889. This led to the creation of the implied, inherent

powers doctrine.
Section 1

the traditional,
Upon those cases and that well established doctrine, this Court discerned

necessaxy duties for the Auditor in 1940.

Wr'ght supra, tells us succinctly that:

“The supreme court of California in Love v. Baehr, 47 Cal. 364 (decided

in 1874, some sixteen years before our constitution was promulgated
and adopted), considered and declared, with regard to what connoted
constitutional powers a state officer had, otherwise than as enumerated
in the constitution, that: ..... It is admitted that the Constitution contains
no express limitation on the power of the Legislature in this particular.
But we think a limitation is necessarily implied from the definition of
the

office. Fromthe earliest period of our history as a nation, almost every

State in the Union had a Secretary of State, Controller, Treasurer,
and
Attomey-General; and the general nature of the duties pertaining to each

PETITIONER’S REPLY TO THE RESPONSES OF THE IDAHO STATE

LEGISLATURE
AND THE BOARD OF EDUCATION - 11
 to the framers of our Constitution. It is clear
were perfectly well known
here, the framers
beyond controversy, that in establishing similar offices
of duties, which
of that instrument had reference to the same general class
it was well known pertained to such offices elsewhere."
Likewise, Wisconsin so held in 1870: “under our state constitution (which
s of the county), the
provides for the election of sheriffs by the elector
of
cannot transfer to other officers, elected by the board
legislature
supervisors, important powers and functions which from time
.”
immemorial have belonged to the office of sheriff
prior to the
That rule of construction having thus been announced
the framers of our
adoption of our Constitution, it will be presumed
Constitution, in presenting it t0 the people and the people in ratifying it,

has such rule in mind Since statehood this court has recognized and

approved that principle.” (citations omitted)

and “officers” makes clear that both the cases cited and
plural reference to “offices”
it
The

such constitutional jobs.

the Wright court intended the rule to be applicable
to all

In fact, to further confirm the validity and accuracy of such look back perspectives, some of

look forward after the adoption of a Constitution to examin

e the first statutes
our sister states also

or define the duties ofa paxticular office.

passed by a newly created State Legislature which specify

Walker, 368 Wise. 2d 444, 879 N.W. 2d 520 (2016))

That approach also may be
(See Coyne v.

helpful to this Court.

of the Idaho State Legislature in 1890-1 891 passed General Laws

which
The First Session

Free Public Schools. (See the Declaration

included an Act to Establish and Maintain a System 0f

“1 "). That Act also makes clear that it is the

0f David H. Leroy, copy attached hereto, Exhibit

intended to supply the day to day management, supervision

and
Superintendent, not the Board who is

statute and, by implication of the era, the

leadership of the public school system under this

Superintendent, states: “He shall have a general

Constitution. Section 8 ofthe Act, in referring to the

PETITIONER'S REPLY TO THE RESPONSES OF THE IDAHO STAT

E LEGISLATURE
AND THE BOARD 0F EDUCATION — 12
 the State.”(Leroy
supervision of all the county superintendents and of the public schools of

the Board established in the Act, Section 1 which

Declaration, attachment, page 132) By contrast,

the
is composed of the Superintendent, the Secretary of State and the Attorney General, has only

powers to appoint a secretary, meet at the capitol, adopt rules and regulations and issue or
stated

page 131) Consistent with a

revoke diplomas to teachers. (See Leroy Declaration, attachment,

proper reading ofthe Debates ofthe Constitutional Convention

of 1 889, the day to day management,

ofIdaho’ s public schools under both statute and

the actual daily “leading, directing and supervising”

the Constitution, circa 1887-1 891, was intended to be and was consigned to the elected

Superintendent of Public Instruction, as it remains today.

focus upon the Auditor’s job, all other Idaho

Although the facts and language in Wligm

executive officers listed in Article IV Section 2 who are also without detailed duties specified in the

Constitution are identically situated. Nothing about the method or the effect of the ruling

disqualifies or limits its application to the Superintendent with equal

force. The Superintendent, per

the twenty two traditional territorial duties identified

the rule in mm, should and must be accorded
in her Petition as the implied powers and inherent authority 0f that office.

C. THE FRAMERS SPECIFICALLY STATED THAT THE BOARD OF EDUCATION

WAS CREATED IN ARTICLE IX, SECTION 2 T0 BE “ADVISORY” T0 THE

SUPERINTENDENT

The Board, at page 14 ofits Response, cites an amendatory motion made at the
Constitutional

0f school
Convention which created the Board, instead of a single Superintendent system

three very specific, quoted references therein which

management, but completely overlooks the

PETITIONER’S REPLY TO THE RESPONSES 0F THE IDAHO STATE

LEGISLATURE
AND THE BOARD OF EDUCATION - 13
 such a Board. could not be more clearly
qualify and limit the “general supervision” accorded to
It

“advisors” to consult upon

indicated that the two other elected officials were to compose a body of

“questions of importance” which might be brought before the group. (Debates,

Volume 1, pages

644-646)

Legislature’s Response, of course, offers at page 10 a discussion

of the “general
The

supervision” phrasing of the Constitution. At pages 16 through 20, that Response also presents a

discussion ofthe Debates text, as does the Board at it’s pages 14 to 15. However, both Respondents

limited meaning to the

avoid any fair or complete reading of the Debate texts which clearly supply

Each avoids altogether any reference to the qualifying words

words “general supervision.”

“advisers” and “advisory,” as used by the framers. That silence is a significant admission. Neither

“questions of importance.” They

discusses the concept of a Board which occasionally consults on

Secretary of State, with

also make no explanation whatsoever about how the Attorney General and

other duties as elected officials, by committee, are intended to

manage, supervise and direct the

detail of day to day, statewide public school operations. Without such explanations, both

Respondents ultimately fail to convince that the “general supervision” proposed in the Section is

intended to be anything more than “advisory” to the school Superintendent. This silence is telling.

as the
Reading together the Superintendent’ s implied and inherent from Article IV, Section
1

consultation type of “general

specific duties of school management, together with this policy

without conflict,
supervision” assigned the Board in Article IX, Section 2 can be seamlessly done,

By contrast, the Board takes the lead role under the

when the Board is understood to be advisory.

the Superintendent has no

Constitution on state educational institutions ofhigher learning, wherein

PETITIONER’S REPLY TO THE RESPONSES OF THE IDAHO STATE LEGISLATURE

AND THE BOARD OF EDUCATION - l4
such duties. The Board is intended, as to grades K through 12, to set policy and consult on important
management duties. This is the limited
questions, with the Superintendent executing the specific

must
role intended for the Board as to public schools, where the Superintendent has traditionally and

constitutional functions without impairment.

continue t0 discharge inherent, implied and definable

Legislative Response proposes

The alleged unconstitutional division of supervisory duties which the

are mutually construed in the

at page 24-26 does not exist, when these two constitutional provisions

proper context. Constitutional provisions apparently in conflict

must be reconciled if at all possible.

Enqlelging v. Investment Board. 93 Idaho 217, 458 P 2d 213 (1969)

Likewise, the 1912 Amendment to the Idaho Constitution only clarifies those respective

Response, page 7 and

roles. It did not “weaken” the Superintendent as contended in the Board

ofRussell A. Joki,
footnote 1 1, page 14 for the Legislature. Rather, as pointed out in the Declaration

the direct inherent

page 2, paragraph 10 through page 6, paragraph 3 1 the Superintendent maintained
,

constitutional authorities and the Board was moved into an executive agency status under the

Governor, to assume full and clarified control of the higher education institutions.

D. ARTICLE XXI, SECTION 2 OF THE CONSTITUTION DOES NOT AUTHORIZE

THE LEGISLATURE TO ABROGATE CONSTITUTIONAL POWERS

Both the Legislature and the Board proposed that Article XXI, Section 2 of the Idaho

either expired or were

Constitution which continued the laws of the Territory into effect until they

to eliminate implied or inherent constitutional powers by

amended or repealed can be uSed

legislation. That was neither the intent, nor is it the permissable effect, of this provision of the

Constitution. Certainly the state legislature 0f either long

ago or even today could replace an old

PETITIONER’S REPLY T0 THE RESPONSES OF THE IDAHO STATE

LEGISLATURE
AND THE BOARD OF EDUCATION - 15
 ion by mere
statute with a new one, but it can not abrogate any constitutional power or provis

“When the Constitution devolves a duty upon one officer, the Legislature cannot
legislation.

The Legislature cannot take from a constitutional officer a portion of the

substitute another .....

and devolve them upon an officer of its own creation.”

characteristic duties belonging to the office,

99 P 2d at 966, (citations omitted). It is fundamental that a statute

at 179,
10ng14 supra, 61 Idaho

ution. State ex rel Rich v. Idaho Power Co,

can not declare a public policy contrary to the Constit

81 Idaho 487, 346 P 2d 596 (1959)

for the Territorial Superintendent became

Thus, to the extent which a list oftraditiona] duties

into the constitutional role of the State Superintendent, those authorities

embedded by implication

tive act. In fact, as noted above, neither

may not be eliminated, altered or transferred by mere legisla

Legislature in 1890-1 891 expressly changed any of

the framers in Convention in 1889 nor the State

nt. Instead, both groups endorsed it. Our earliest

the day to day management role ofthe Superintende

Superintendent’s day to day “supervision”

state laws and the text of the Debates both confirm the

status,” leaving no room for an argument that mere legislation can or did
and the Board’s “advisory

eliminate these inherent, implied constitutional duties.

VI.

T AS TO
WILLIAMS V. STATE LEGISLATURE IS SOLID, INSTRUCTIVE PRECEDEN

THE PROPER JUDICIAL ROLE ON INVASIVE APPROPRIATION BILLS

State Legislature ofState ofIdaho, I l 1 Idaho 156,

The Board Response contends Williams v.

to the
722 P 2d 465 (1986) is “inapposite” because ofthe constitutional grant ofgeneral supervision

ds the precedent is “inapplicable”

Board of Education. (Response, page 10) The Legislature conten

PETITIONER’S REPLY TO THE RESPONSES OF THE IDAHO

STATE LEGISLATURE
AND THE BOARD OF EDUCATION - 16
 “through the adoption of
to the Superintendent, who, unlike the Auditor, had her powers removed

as urged above, these positions do fail and Williams

the Constitution.” (Response, page 23) Clearly,

name implies, is a
does apply, if the Superintendent of Public Instruction, as the very

constitutional dimension.
“superintending” to daily details officer of discernable

Williams holds that:

t the State
“Finally, we note that the Legislature did not directly prohibi
Rather, the Legislature
Auditor from performing the post-audit fimction.
auditor’s office for the post-audit
simply did not allocate any funds to the
while specifically delineating that the auditor funds
’s would be
function,
used either for pre-audit activities or to fund the state’s computer center.
“The legislature
We hold that the Legislature’s actions were impermissible.
apprOpriations
cannot d0 indirectly through the means of line item
. . . .

Regents of Higher
what is impermissible for it to do directly.” Board 0f
1333 (1975).
Education v. Judg 168 Mont. 433, 543 P. 2d 1323,
,

the Legislature may not prohibit the State Audito

r from
Therefore,
a line-item appropriation.”
performing his constitutional duties through use of
ons omitted)
Id, 111 Idaho at 161, 722 P2d 471 (citati

earlier act
In effect, with Senate Bills 1409 and 141 0 the Idaho Legislature has duplicated its

to the Superintendent for the Technology

in the Williams case by refilsing to appmpriate any funds

has
such salary and operations monies to the Board 0f Education,
it
Group. In transferring all

of employees. also thereby has directly acted to

preferred another office with this essential group
It

performing her continuing inherent and

prevent the Superintendent of Public Instruction from

As noted in the Louisiana case, Board of Elementm and

implied duties through those persons.

utional officer or
Secondm Education v. Nix, supra, to acComplish necessary functions, a constit

such
body can not be required t0 rely upon employees selected and directed by others to discharge

the
duties. That principle is particularly and acutely experienced by Superintendent Ybarra, as

other
computers are effectively essential to and intertwined with
all
Technology Group and their

PETITIONER’S REPLY T0 THE RESPONSES OF THE IDAH

O STATE LEGISLATURE
AND THE BOARD OF EDUCATION - 17
Department of Education operations.

that 1890's era constitutional implied duties can

Williams also stands for the proposition

ques and processes. Although the modern

evolve to encompass later—developed, current day techni

in territorial days, this Court held it to be among the

post-audit function was not known or done

Even through never exercised

implied powers appropriate to the Auditor’s current day
duties.

deny legislative funding for the role. So does modern computing

before, it was not permissable to

electronic internet linkage logically succeed to the Territorial

data management and an

ication by personal visits, the U.S. mail,

Superintendent’s required 1880's era methods 0f commun

01d fashioned book entry and keeping records by hand

on paper. Denial of computer technology

control effectively shuts down the Superintendent’s office.

Also in Williams, the Legislature did not act through a policy-related statute. Rather, they

just as
used the Auditor's appropriation bill to apply a problematic statement 0f legislative intent,

ture “specifically deliniated that the

was done to Superintendent Ybarra. In Williams, the Legisla

auditor’s funds would be used (only) for pre-audit activities or to fimd the state’s computer center,“

st audit functions. In the instant case, a similar

thereby declaring a limiting intent which precluded p0

intent stated in SB 14 l 0 moves the fimds and the direct supervision of the Superintendent’s historic

control. In both instances, the declaration 0f intent constituted an

staff away from her

unconstitutional impairment and prohibition t0 the performance of constitutional duties.

VII.

THE EXTRAORDINARY REMEDIES SOUGHT ARE PROPER, NECESSARY AND

PRECISELY APPROPRIATE

PETITIONER’S REPLY TO THE RESPONSES OF THE IDAH

O STATE LEGISLATURE
AND THE BOARD OF EDUCATION — 18
 c overreach herein is the
As noted above in the discussion of the Williams case, the specifi

which removes direct supervision and necessary funding from the

declaration of legislative intent

The remedies sought, following Williams

Superintendent for the FY 2020-2021 appropriatio year.
n

this Court, are designed to define and avoid future

and several other cases previously decided by

to utilize the adequate funding which is currently in

legislative acts of unconstitutional dimension,

place, albeit under the Board for a year, and to immediately restore direct supervision and control

to the Superintendent during that duratio

n.
of the Technology Group

E OF AN
A. THE SUPERINTENDENT’S SITUATION SATISFIES THE PREDICAT

ABSENCE OF A PLAIN, SPEEDY AND ADEQUATE REMEDY AT

LAW
short time frames, compelling public
This Court has recognized the unique circumstances,

and necessity of considering the extraordinary relief presented by the Verified Petition
interests

There are very few days remaining before the commenceme

nt of the 2020-2021 State Fiscal
herein.

effective date of a “statute

Year. As With Evans v. Andrus, supra, decisions are compelled before the
the
about to g0 into effect” which may be unconstitutional. Linking a judicial declaration as to

ofprohibition and mandate is a most proper and

impropriety of a line item appropriation with writs

this Court. The necessity of immediate action to

required exercise for the original jurisdiction of

evident and compelling.

preserve the State’s school system computer functi
on is

se page 35, this case closely mirrors

Contrary to the suggestion ofthe Legislative Respon
at

more acutely than some emphasizes that there is no

other historic equitable relief cases and even

and speedy remedy at law. Even the Respondents appear to concede that the need
plain, adequate

clearly evident from the content ofthe Verified Petition. Our

for a “speedy” determination herein is

PETITIONER’S REPLY TO THE RESPONSES OF THE IDAH

O STATE LEGISLATURE
AND THE BOARD OF EDUCATION - 19
facts are readily distinguished from the situations mm, ex rel State V. Idaho State Board 0f

249 P 3d 346 (201 O), which disinclined the Court to rule 0n

Land Commissioners, 150, Idaho 547,

a emergency basis.

B. A WILLIAMS-TYPE DECLARATION OF AN UNCONSTITUTIONAL

LEGISLATIVE RESULT IS NECESSARY AND APPROPRIATE

in framing the results of SBI409 and

The Petitioner seeks declarations that the Legislature,

riation” which will “prevent the Superintendent

141 0, passed an “unconstitutional line item approp

ating the inherent duties and implied powers

from accomplishing her constitutional duties” by “deleg

” At pages 29 through 33 of its Response, the Legislature

(from) the Superintendent to the Board.

to be
misperceives that the Petition is asking the Court either to declare the entirety 0f both Bills

judgment
demanding that the Court rewrite the appropriati on bill or substitute
its
unconstitutional, is

for that of legislators in session. None of those suppositions is true.

Instead, this Petition closely follows and only seeks the type afrelief sought and granted in

line item portion ofa bill was declared

Williams, supra. Therein, the failure to appropriate a single

unconstitutional. The remainder 0fthe flmding remained intact and was utilized. Therein, the Court

commence at the beginning of the next

even delayed the effective date 0f its opinion to allow it to

1987. See Williams, supra, 111 Idaho at 161, 722 P 2d at

470
filll fiscal year on July 1,

s
The violation here is not the appropriation of funds which will continue to pay the salarie

that portion of the invalid legislative

and fund the operations 0fthe Technology Group. Rather, it is

and act effected by the removal of funding from one bill and its placement in the other which
intent

offends. Thus, requiring administrative oversight by the Board but leaving no effective technology

PETITIONER’S REPLY TO THE RESPONSES OF THE IDAHO STAT

E LEGISLATURE
AND THE BOARD 0F EDUCATION - 20
support services t0 the Superintendent is contrary to the Constitution. A properly stated declaratory

in Williams, avoids all the concerns articulated by Respondent

judgment on this point, as was done

creating an unconstitutional appropriation.

about both violating the Separation ofPowers Doctrine or

This issue is severable fi'om the rest of SB 1409. The Petitioner is. not seeking to add fimds or move

funds back t0 SB 1410.

fund the Technology

The Petitioner concedes that the appropriation offunding in SB 1409 to

can
Group meets all of the criteria of a lawful funding act done by the Legislature. The Legislature

Board of Education if it wishes. However, by the

create alternative technology operations for the

deletion of the entirely said funding from SB 1410, it denies the ability t0 the Superintendent t0

continue her constitutional functions. As was done in Leonardsen v. Moon, 92 Idaho 796, 451 P 2d

542 (1969), this Court may leave in place the funding of SB 1409 for the specific purpose of paying

the Technology Group expenses while also declaring both the legislative “zero line item” action of

SB 1410 and the effect of the statement 0f legislative intent 0n SB 1409 to “centralize” all the

existing IT functions away from the Department to be unconstitutional as to the Superintendent. No

rewrite of either appropriation bill is required.

C. THE UNCONSTITUTIONAL LEGISLATIVE INTENT IS SEVERABLE FROM THE

LAWFUL APPROPRIATION AND REQUISITE SPENDING

of a legislative act are separately identifiable, and neither
If the unconstitutional portions

provisions may be stricken from the

integral nor indispensable t0 the remainder, those separable

whole. Lvnn v. Kootenai County Fire Protective District No; 97 Idaho 623, 550 P 2d 596 (1976).
As described above, it is the intent of
The Petitioner is entitled to such declaratory relief here.

PETITIONER’S REPLY T0 THE RESPONSES OF THE IDAHO STATE LEGISLATURE

AND THE BOARD OF EDUCATION - 21
 which should be declared
SB 14 1 0 to “centralize”, without providing any line item funding SB 1409

Those provisions are clearly capable of discreet treatment and severance from the
unconstitutional.

appropriation itself. See Epperson v. Howell et al

28 Idaho 538, 154 621 (19 1 6) Properly informed,
,

the 2021 Legislature for the following Fiscal Year can either return funding ofthe Technology Group

discharge
to the Superintendent or provide an adequate, second separate system and employees to

the Department 0f Education. Meanwhile, in FY

the public school constitutional functions Within

proper administrative control of the

2020—202 1 the appropriated funds can be used as planned,
,
if

employees and operations is declared to be returned to the Superintendent.

Y
D. THE WRIT 0F MANDATE SEEKS THE BOARD’S NON-DISCRETIONAR
EDENT
PAYMENT 0F SALARIES AND EXPENSES AND NON—INTERFERENCE PER PREC
action which
The Verified Petition seeks a Writ 0f Mandamus against the Board to cease any

authority” and to
would constitute “interference with the Superintendent’s exercise 0f supervisory

salary benefits maintenance, rent and operating expenses”

compel the Board to “continue to pay the

for the portion of the Technology Group covered in SB 1409.

itutional and
Should the Court, as requested, declare the actions of the Legislature unconst

Group operation essential to the Superintendent’s discharge of implied, inherent

the Technology

constitutional duties, then both of these mandated actions would become non—discretionary duties

this relief under Idaho Code Section 7-302.

ofthe Board. This meets the requisite basis for seeking

n for duly earned

The payment of legitimate claims consistent With a legislative appropriatio

Higer Hanse 67 Idaho

monies has been frequently and readily mandated by this Court. v. ,
salary

369 P 2d 590 962) In Dahl v. Wright,

45, 170 P 2d 411 (1946) Jewett v. Williams, 84 Idaho 93, (l

PETITIONER’S REPLY TO THE RESPONSES OF THE IDAHO STATE LEGI

SLATURE
AND THE BOARD OF EDUCATION - 22
65 Idaho 130, 139 P 2d 754 (1943).

the Board of Education is the functional

The Writ of Mandate sought herein against

this Court which directed the payment of lawful

equivalent of those issued in the above cases by

ers. Upon these facts, the Board of Education

claims by the Treasurer, Auditor or Board of Examin

respondent. So to is the sought non—interference

is the functional equivalent ofthose earlier parties

supervision
in the Superintendent’s free and unfettered discharge of constitutional duties by lawful

of her necessary staff a non-discretionary action.

Response does not argue that either Mandate or Prohibition

Notably, the Board itself in its

are improper relief sought by this Petition. Such contrary arguments are advanced solely on behalf

of the Legislature in its Response at pages 33 through 35.

E. THE WRIT OF PROHIBITION IS APPROPRIATE PER SMYLIE V. WILLIAMS

ibition t0 approximately
The Verified Petition, as against the Board, also seeks a Writ ofProh

mirror the Writ ofMandate sought and described above.

Following the concept employed in

t the
m
v. Williams, 81 Idaho 335, 341 P 2d 457 (1959) the Superintendent asks this Court to prohibi

control and authority “over the

Board from “interfering” with her “continued exercise of direction,

benefits, maintenance, rent and

Technology Group and from “withholding the payment of salary,

operating expenses” as appropriated within SB 1409.

State Auditor from “performing or

In $11113, Id, this Court issued a Writ prohibiting the

attempting to perform” any of the legal powers or duties

of the Governor’s Bureau of Public

Accounts.

ion attempting to invade the province of

Herein, the appointed, part time Board of Educat
is

PETITIONER’S REPLY TO THE RESPONSES 0F THE IDAH

O STATE LEGISLATURE
AND THE BOARD OF EDUCATION - 23
 en employees
the executive branch Superintendent by asserting direction and control over eighte

role of the elected official. That can and should

be
necessary to the discharge of the constitutional

withhold the Technology Group spending duly

prohibited here, as should be any attempt to

the predicate of Idaho

authorized in SB 1409 during the upcoming Fiscal Year. These facts satisfy

Code Sections 7 401 and 402 for issuance of the Writ.

Again, the Board’s own Response does not allege any procedural deficiency in the format

claim that payment of these employees and

of this request. As was noted above, the Legislature’s

them would be discretionary acts and thus

refraining from allowing the Superintendent to direct

unreachable by Prohibition is also not accurate.

VIII.

CONCLUSION
orating her
For each and all ofthe above stated reasons and arguments, the Petitioner, incorp

g with Memorandum and the

Verified Petition with Exhibits, Motion for Expedited Hearin

respectfully urges this Court to grant the requested

relief.
Declarations now filed herein

A clear and mutually respectful decision ofthis Court defining the respective constitutional
entanglement in the
roles ofthe Board and the Superintendent will enhance effectiveness and avoid

ion institutions, hopefully for the next

administration of Idaho’s public schools and higher educat

been very forthright in

century. Such a definition has been needed since 1889. This Court has

pate in the supervision and control of

recognizing that the “constitutional rights ofparents to partici

inate over the plenary power and mandate

the education oftheir children” both predate and predom

Butte Area v. State Board of Education,

ofthe Legislature to provide for education. Electors ofBig

PETITIONER’S REPLY TO THE RESPONSES OF THE IDAHO STAT

E LEGISLATURE
AND THE BOARD OF EDUCATION - 24
 for each ofthose
78 Idaho 602, 308 P 2d 225 (1957). The strongest and most direct communication

parents to influence and encourage such policy is their vote to elect a forceful and effective

intended exactly that

Superintendent of Public Instruction each four years. The Idaho Constitution

relationship.

Respectfully Submitted.

DATED This 22 day of May, 2020.

C7 Ll T 0'1
David H. Leroy, Special eputy Idaho Attorney
General and Attorney at La

PETITIONER’S REPLY T0 THE RESPONSES OF THE IDAHO STATE LEGISLATURE

AND THE BOARD OF EDUCATION - 25
 CERTIFICATE 0F SERVICE
“d
Ihereby certify that on this 7} a day of May, 2020, I caused a true and correct copy ofthe
within instrument to be sent to:

Chris Kronberg, Deputy Attorney General

chris.kronber2@ag.idaho.gov

Jenifer Marcus, Deputy Attorney General

jenifer.marcus@osbe.idaho.gov

Mary V. York
Holland & Hart
myork®hollandhamcom

William G. Myers, III

Holland & Hart

mnwersc’mhollandhartfiom

Alison C. Hunter
Holland & I-Iart
ahunter@hollandhart.com

a
DATED This DE“ day ofMay, 2020.

kx\
Davalee Davis, Executive Assistant

PETITIONER’S REPLY TO THE RESPONSES OF THE IDAHO STATE LEGISLATURE

AND THE BOARD OF EDUCATION - 26