DocketNumber： 00-120
Judges： Lehman, Golden, Kite, Voigt, Spangler, Ret
Filed Date： 10/2/2001
Status： Precedential
Modified Date： 11/13/2024
On Rehearing
[T 1] In 1995, this court heard school dis-triects' claims challenging the constitutionality of school financing statutes. This court determined the Wyoming Constitution required that all students receive an equal opportunity to a quality education. Finding a lack of equal opportunity, we remanded the case. Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wyo.1995) (Campbell I). After the legislature acted, the challenger school districts and the Wyoming Education Association (WEA) continued the action, culminating in a second opinion by this court in which we again decided issues involving the constitutionality of operations and capital construction financing. State v Campbell County Sch. Dist., 2001 WY 19, 19 P.3d 518 (Wyo.
[T2] At oral argument upon the Petition for Rehearing, all parties agreed that the present method for financing capital construction is not constitutional, and further agreed that capital construction financing cannot be based upon local wealth, but must be based upon the wealth of the state as a whole. Although our opinion on the adequacy of capital construction funding did not draw the same agreement by the parties, no one disputes that inadequate funding causes serious damage to school districts' ability to deliver a constitutional education to the children of this state. Until a comprehensive plan exists to adequately fund capital construction from the wealth of the state as a whole, the students of all school districts remain subject to injuries and damages.
[13] The following issues were raised in the Petition for Rehearing to which the court now responds.
Taking Judicial Notice of Incomplete Documents
[F4] The legislature ordered the state superintendent to establish the needs of "school buildings and facilities" on or before September 1 of each year. Wyo. Stat. Ann. § 21-15-107(e) (Lexis 1999). On or before October 1 of each year, the state superintendent reports those needs to the Joint Education Interim Committee, and, "Inljot later than December 31 of each year," the state superintendent is to report on the "progress being made" on capital construction projects. Wyo. Stat. Ann. § 21-15-107(e), (g), (J) (Lexis 1999). In Campbell II, the court took judicial notice of a document entitled "November 2000-Schools in Immediate Need of Capital Construction" and, in doing so, omitted a final column. Although the State disputes both the profmiety of our use of the state superintendent's November 2000 report and the accuracy of our interpretation, we assure the State that we did consider the last column of that report as noted in footnote 57 of our opinion.
[T5] As statutorily required, the MGT study was the method employed to assess "school buildings and facilities" in accordance with Wyo. Stat. Ann. § 21-15-111 (Lexis 1999), a statute entitled "State capital construction assistance." Our opinion requires completion of the capital construction projects identified in the MGT study and recognizes the total amount will fluctuate for various reasons. The State contends substantial funds have been provided for which it was not given credit by this court's opinion, including major maintenance funding. Those appropriations were not proposed until after our opinion was issued. Obviously, any funds appropriated for capital construction projects will reduce the ultimate state-funding obligations. Therefore, the State need not believe that it has been mandated to spend a fixed amount without regard to ongoing progress. In addition, some of the funds the State points to are currently encumbered until such time as the legislature conducts its own separate review of the proposed projects. Accordingly, this court will not consider the funds until they are available to be spent.
Consequerices of Inadequacy
[T6] Before we again focus on methodology details, it cannot be forgotten why, since 1981, we have found that capital construction financing critically impacts the quality of education. Without adequate funding for costly repairs, renovations, and building construction, school districts faced with non-routine major expenditure items must choose from the lesser of two evils; either ignoring the problem or, if that is no longer an option, diverting operational funding intended for teachers' and staff salaries and essential school programs. If the schools' operational funding budgets have no surplus money to divert, a deficiency results and educational staff and programs are eliminated to reduce expenditures. At the same time, it is rare that these extraordinary efforts are sufficient to properly maintain buildings.
Relying Upon Scores of 90
[T8] The constitutional goal is to ensure adequate capital construction funding from state wealth. In 1999, the legislature enacted statutes creating a school capital construction system in response to our decision in Campbell I. 1999 Wyo. Sess. Laws ch. 170, §§ 101, 102. Entitled "Capital Construction Projects," the statutes were separate from those statutes governing school operations finance. Wyo. Stat. Ann. §§ 21-15-106 through 112 (Lexis 1999). This set of capital construction statutes constituted the legislative plan to identify and separately fund capital construction needs.
[19] State officials identified "inadequate and immediate need" buildings and facilities by means of a scoring system. However, within the State's scoring system capital construction projects were not limited to those falling into the "inadequate and immediate need" category. The legislative plan limited eligibility for state funding to those school buildings and facilities that had been identified as "inadequate" and "in need of immediate capital construction." Wyo. Stat. Ann. § 21-15-107(e) (Lexis 1999). We have agreed that the State's scoring methodology was constitutional and accordingly ruled that a legislative plan that limited assistance to the worst buildings unconstitutionally failed to provide for completing all capital construction projects identified by the scoring system.
[110] There is no serious dispute from any party that inadequate funding impedes school districts' ability to deliver a constitutional education to our children. Subsequent to our 1995 opinion, the legislature acknowledged this premise by enacting legislation ordering evaluation of all school buildings through the use of "qualified contractor assistance." Wyo. Stat. Ann. § 21-15-107(b) (Lexis 1999). From this directive, the legislature's capital construction project identification method was formulated under the MGT study. The MGT study developed a scoring system and then assigned score ranges to categories.
[T11] In this matter on reconsideration, the State now alleges the court overstepped its authority by relying upon the MGT study, suggesting the study does not represent proposed legislative action, but merely guidelines for the legislature to consider,. However, the MGT study was the omly piece of evidence regarding capital construction needs submitted by the State during the trial. Furthermore, there was no argument presented to this court prior to the most recent funding opinion that indicated the study would not be used for legislative decision making. In fact, in addition to the legislation itself, the rules of the DOF rely upon the scoring system as a measure for its actions. Therefore, this court also relied upon the study. In this instance, the study created a mechanism for the State itself to determine if funding of capital construction meets constitutional standards, and we have no alternative but to rely on it and to respond to its results.
[112] In developing the scoring system, the MGT study began by distinguishing "capital construction projects" from "routine maintenance," and then assigned a numerical score which had the effect of categorizing or, as the State says, prioritizing. Because routine maintenance was funded through a school's operations budget, while capital construction projects were to be separately funded, it was essential to begin by identifying those needs not presently funded. In
[113] The critical aspect, however, was the score. The higher the score, the closer the building was to changing its designation from a "eapital construction project" to a condition requiring only "routine maintenance"-the obvious goal. By definition then, and without regard to whether new construction, a repair, a replacement, or a renovation is required, scores below 90 indicate that a non-routine, major expenditure is needed. Thus, it is a capital construction project to be addressed by the legislatures separate statutory scheme.
[T 14] As a point of clarification, the score of 90 categorizing the building as "new or as new," simply meant that the building condition was such that it required only routine maintenance. The State, the legislature, school districts, and citizens can rest assured that our opinion, in no way, required the construction of entirely new buildings for every building which scores below 90.«
[115] As to the seore of 90, the court is cognizant of the fact that future studies could utilize different methodologies to measure capital construction needs. The second point of clarification, therefore, is that the test of whether capital construction funding is needed must be whether the facilities are in a condition where only routine maintenance is required. -
[116] Campbell II adopted the goal that, using the currently accepted MGT system, all buildings should ultimately be able to achieve a score of 90 for building condition, 80 for educational suitability and technological readiness, and 4 for building accessibility. These numbers were obtained from the State's MGT report. In addition, the opinion concluded that buildings that did not meet the state standards for square footage would be deemed "in immediate need." We remain committed to that goal for all school buildings and to Campbell II's requirement for a legislative plan within six years to achieve that goal for the long term. Campbell County Sch. Dist., 2001 WY 19, ¶ 137, 19 P.3d 518, ¶ 137.
[117] We conclude a clarification of those goals is appropriate. That plan should include a mechanism to fund non-routine maintenance to prevent buildings from deteriorating to a condition deemed inadequate. The State's own regulations define buildings in "immediate need" as those with scores below 49 in building condition, having a condition which creates a major or critical health hazard, or having a condition which prohibits activities essential to the educational program. Department of Education School Capital Construction Grants, Building Maintenance and Repair Programs, ch. 24, § 8) (2/23/00). It cannot be responsibly argued that facilities in immediate need should not be remedied as quickly as possible. Campbell II required this funding be provided (not projects completed) within two years, and we confirm that requirement. The statutes and regulations do not specifically categorize buildings which fall below the minimum square footage standards adopted by the State. Obviously, buildings which are overcrowded, where the cause of the overcrowding is not short term, prohibit the school's ability to deliver the educational services deemed appropriate by the legislature. Consequently, the State must consider chronically overcrowded buildings as in immediate need.
[118] The State's own regulations then define "inadequate" buildings as those falling below a score of 69 for condition, educational suitability, or technology readiness and which have a condition(s) that impedes the delivery of educational services. Department of Education School Capital Construction Grants, Building Maintenance and Repair Programs, ch. 24, § 8(J) (2/28/00). Allowing schools to have inadequate facilities cannot meet the constitutional standard set forth in Campbell I of elimination of deficient facilities. Campbell II required inadequate facilities be remedied within four years, and we continue to believe that is appropriate.
[119] During argument, the State indicated it was on schedule as outlined in our previous opinion, and we see no compelling reason to alter that schedule. We are aware
[120] Critical to this issue on rehearing is the recognition that the State is in control of the ultimate amount of spending as it exercises its responsibility of review and oversight of specific projects proposed by local school districts. The constitution simply requires the State to provide capital construction funding of the facilities in the amount deemed necessary to provide facilities capable of delivering the level of educational services determined appropriate by the State of Wyoming. If a local school district seeks funding in excess of that required to meet state standards, the State is not obligated to provide such funding, and the local school district can seek it from other sources. For example, if a school district proposes to build a new high school for $30 million dollars and the State determines it is able to build a school capable of delivering the educational services required by their standards for $20 million dollars, then the State is obligated to spend only $20 million dollars, and the school district must provide funding for that part of the proposal in excess of constitutional state standards.
Which Buildings Apply
[¥T21] The State seeks clarification of which buildings need to be included in the capital construction funding scheme. The legislative directive in § 21-15-111(a)(iii) defines "school buildings and facilities" as "the physical structures and the land upon which the structures are situated, which are primarily used in connection with or for the purpose of providing the educational programs offered by a school district in compliance with law, including both student-related and nonstudent-related buildings and facilities." (Emphasis added.)
[122] The court finds the legislation to be sufficiently clear and would expect the legislature and the school districts to employ common sense in its application. Clearly, buildings used to educate students should take priority in terms of capital construction financing. However, the legislature wisely included an ongoing review of all buildings, and wisdom teaches us all that an ounce of prevention is worth a pound of cure.
Construction Infrastructure
[123] The State asked the court to consider its capital construction obligations in light of our state's inability to complete the projects because of a dearth of contractors and labor. Just as with any other litigant before this court, we are unable to rely upon evidence not submitted in the course of trial. Further, it would appear this issue is premature for the court to make subject of an opinion.
Summary of Issues Raised on Rehearing
[124] In summary, capital construction funding must continue within the time frame set forth in the Campbell County II opinion, with the goal to achieve facilities that need only routine maintenance.
Uniform Taxation
[1 25] Our recent opinion noted that capital construction funding primarily relied upon non-uniform property taxation. The court again advised the legislature of the option of statewide taxation as an alternative method of obtaining capital construction revenues, just as we have since 1971. Despite voiced concerns that the court overstepped its bounds by ordering statewide taxation, clearly our opinion contained no such order. In fact, we stated:
To date, the Wyoming legislature has limited school funding taxation to property takes although nothing prohibits it from imposing other taxation or revenue raising mechanisms. That decision, however, is the prerogative of the legislature.
State v. Campbell County Sch. Dist., 2001 WY 19, ¶ 123, 19 P.3d 518, ¶ 123. We went on to say that:
The Wyoming Constitution does not prohibit the state from imposing a statewide mill levy taxation level for capital construction, nor does it limit the number of mills that can be levied for such a fund. It*331 merely requires that it be uniform. Nothing in the state constitution prevents the legislature from raising the entire amount needed of more than $565 million for capital construction by enacting statutes imposing a new category of statewide mill levy for capital construction at whatever level is required to raise the desired amount of money, and, if it so desires, the legislature can act within any time frame including raising all funding in a single year.
Id. at ¶ 127, 19 P.3d 518 (emphasis added and citations omitted).
Bonding and Local Revenues
[126] We agree with WEA that we must clarify that, from the date of our opinion, all bonds in place remain in effect. However, school districts are no longer required to have reached bonded indebtedness of ninety percent (90%) or more of their constitutional debt limitation imposed under Wyoming Constitution, art. 16, § 5 in order to receive state assistance for those capital construction projects identified in the MGT study. In Campbell II, we held that the legislature unconstitutionally relied upon local wealth by requiring local school districts to resort first to local resources for capital construction and to bond to ninety percent (90%) of their capacity before becoming eligible for state funding. Wyo. Stat. Ann. § 21-15-111(e) (Lexis 1999).
[127] Our decisions have neither eliminated nor reduced "local control" as it exists today. On the contrary, we have recognized a school district's right to rely upon some local funding to serve the purpose of improving the quality of education delivered to its students through innovation or modernization. The Wyoming Constitution permits school districts to impose bonded indebtedness up to a set limit. We have decided that the State cannot take this money from a local school district for any purpose.
Continuing Jurisdiction
[128] Historically, and perhaps with even more justification in the present setting, the court has been reluctant to remain involved in ongoing disputes. The purpose for that is our recognition that we are not charged with developing policy or making funding decisions. However, all parties have requested that this court retain jurisdiction. While it is our expectation that our continued jurisdiction will not be necessary, we will accept petitions for resolution of constitutional or statutory interpretations should the parties reach an impasse. -It is our expectation that all parties will act in good faith in all matters including requesting or agreeing to any requests for extensions under our previously announced time frames. Finally, the court will consider the appropriateness of appointing a special master in the future should the parties be unable to resolve ongoing disputes.
Separation of Powers
[129] This court remains acutely aware of the criticism surrounding the two most recently issued opinions regarding school financing. While all parties now acknowledge that the current method for financing capital construction is unconstitutional, the court's discussion of the funding issues surrounding capital construction was viewed as crossing the lines separating our branches of government in Wyoming.
[T30] We continue to recognize that it is our duty to declare void all legislation that is unconstitutional. In 1787, Alexander Hamilton stated that it is the duty of courts of justice to declare void all legislative acts contrary to the manifest tenor of the constitution. In The Federalist No. 78,
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution. It is not otherwise to be supposed, that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peeu-liar province of the courts. A constitution is, in fact, and must be, regarded by the judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought of course, to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does the conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. These truths of which Hamilton spoke found expression in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), and most state courts, including Wyoming's, have followed this judicial path.
Our school finance decisions are the natural result of our understanding and application of the immutable truths of which Hamilton spoke. They have been firmly and faithfully anchored in the plain language of the Wyoming Constitution, a fundamental law established by and expressing the will of the people. Because it falls to us to preserve, protect, and defend the people's fundamental law, we cannot declare valid any legislation which contravenes that fundamental law. To deny this would be to affirm that the people's representatives in the legislature are superior to the people. Where the will of the legislature declared in its school finance statutes stands in opposition to the will of the people declared in their Wyoming Constitution, we are, and must be, governed by the will of the people.
[132] 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. "If the executive and legislative branches fail to fulfill their duties in a constitutional manner, the Court too must accept its continuing constitutional responsibility ... for overview ... of compliance with the constitutional imperative." Unfulfilled Promises: School Finance Remedies and State Courts, 104 Harv. L.Rev. 1088 (1991).
[133] For thirty years, this court has witnessed the legislature struggle with capital construction issues. Our decisions attempted to provide a framework within which the legislature could achieve a constitutional school financing scheme. However, consistent reiteration of constitutional requirements has proved to be ineffective. The legislature's failure to create a timely remedy consistent with constitutional standards justifies the use of provisional remedies or other equitable powers intended to spur action.
"An active judicial role in monitoring remedy formulation is well-rooted in the courts' equitable powers.2 ... How long a court waits and the degree of intervention exercised will depend upon the facts, such assessments fall squarely within the court's expertise. But staying the judicial hand in the face of continued violation of constitutional rights makes the courts vulnerable to becoming complicit actors in the deprivation of those rights.
Id.
[T84]) Considerations of time and space restrain us from undertaking anything more than an abbreviated and measured response to the view of the dissent that the school finance issues are nonjusticiable political questions which this court should refrain from deciding and leave to the legislature. It asserts that in neither Campbell I, our 1995 decision, nor in the instant case, which flows from the earlier case, has this court explained why the matter is not a nonjusticiable political question. More specifically, the dissent focuses the debate on the political question doctrine and mechanically draws on and applies two of six attributes of federal political question doctrine identified in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), a federal legislative apportionment case in Article III federal courts. The United States Supreme Court there held that the legislative apportionment matter before the federal court was not a nonjusticiable political question. So applying this federal nonjusticiability doctrine, which is of questionable currency as shall be seen, the dissent concludes that this purely state matter is a nonjusticiable political question. There are a number of sound reasons why the federal political question- doctrine does not apply here and why this court has not adopted a stance toward that issue.
[1385] First and foremost, in the Caomp-bell litigation the State has never raised or briefed the so-called political question issue. One can scour the State's briefs and oral arguments in these cases, including the instant rehearing, and not find reference to either that discrete doctrine or Baker, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663. Under this court's long-standing precedent, this court will not frame the issues for the litigants and will not consider issues not raised by them and not supported by cogent argument and authoritative citation.
[136] Moreover, Baker is clearly irrelevant and inapplicable for purposes of state constitutional analysis. The case was decided in 1962, during a time in this nation's history when racial discrimination and ma-lapportionment of representative districts at local, state, and federal levels were two of many causes of inequity in voting patterns 'across the nation. These causes effectively diluted the voting power of new interest groups and, in many instances, numerical majorities. Some held the view that legislative malapportionment was a political question and courts should not be involved in the "political thicket" surrounding apportionment problems. In Baker, an action filed under the federal civil rights act, the plaintiffs claimed that a Tennessee apportionment statute debased their votes and denied them the equal protection of the laws guaranteed them under the federal constitution. The federal district court dismissed the action, holding that the subject matter of the action was not justiciable and the claim not legally cognizable. On certiorari to the United States Supreme Court, Justice William J. Brennan, Jr., on behalf of the Court, focused on the lower court's misunderstanding that
[137] The federal doctrine of non-justiciable political question, as discussed and applied in Baker and later federal decisions, has no relevancy and application in state constitutional analysis. For example, Justice Brennan himself wrote in 1977:
And of course state courts that rest their decisions wholly or even partly on state law need not apply federal principles of standing and justiciability that deny litigants access to the courts.
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.. [DJlecisions of the [United States Supreme] Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them.
William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 501-02 (1977).
[138] Leading scholars debate whether the political question doctrine even exists, its wisdom and validity, and its seope and rationale. See, eg., Alexander M. Bickel, The Supreme Court, 1960 Term-Forward: The Passive Virtues, T5 Harv. L.Rev. 40 (1961); Gerald Gunther, The Subtle Vices of the "Passive Virtues"-A Comment on Principle and Expediency in Judicial Review, 64 Co-lum. L.Rev. 1 (1964); Louis Henken, Is There a "Political Question" Doctrine? 85 Yale L.J. 597 (1976) (Henken was a law clerk to Justice Frankfurter and a constitutional scholar of the highest stature); Martin H. Redish, Judicial Review and the "Political Question," 79 Nw. U. L.Rev. 1081 (1985); Linda Sandstrom Simard, Standing Alone: Do We Still Need the Political Question Doctrine? 100 Dick. L.Rev. 308 (1996); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 78 Harv. L.Rev. 1, 6-9 (1959).
[189] Another constitutional scholar of high stature observes several ways in which "the political question doctrine is the most confusing of the justiciability doctrines." Erwin Chemerinsky, Federal Jurisdiction 142 (Little, Brown and Co., 2d ed.1994). He states:
First, the confusion stems from the fact that the political question doctrine is a misnomer; the federal courts deal with political issues all of the time. . . .
Second, the political question doctrine is particularly confusing because the [United States Supreme] Court has defined it very differently over the course of American history.
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*335 Finally, and perhaps most importantly, the political question doctrine is confusing because of the [United States, Supreme] Court's failure to articulate useful criteria for deciding what subject matter presents a nonjusticiable political question. The classic, oft-quoted, statement of the political question doctrine ... provided in Baker v. Carr ... seem{s] useless in identifying what constitutes a political question.
Id. at 148-45. Explaining this third point, Professor Chemerinsky writes:
For example, there is no place in the [Fed-erall Constitution where the text states that the legislative or executive should decide whether a particular action constitutes a constitutional violation. The [Federal] Constitution does not mention judicial review, much less limit it by creating "textually demonstrable commitments" to other branches of government. Similarly, most important constitutional provisions are written in broad, open-textured language and certainly do not include "judicially discoverable and manageable standards.". ...
In other words, it is impossible for a court or a commentator to apply the Baker v. Carr criteria to identify what cases are political questions. As such, it hardly is surprising that the doctrine is described as confusing and unsatisfactory.
Id. at 145. Professor Chemerinsky and other critics of the doctrine conclude that it "should play no role whatsoever in the exercise of the judicial review power." Id. at 147 (quoting Martin Redish, Judicial Review and the "Political Question," T9 Nw. U. LRev. 1081, 1083 (1985); see also Erwin Chemerin-sky, Interpreting the Constitution 99-105 (1987)).
[140] Closer to home, Professor Robert B. Keiter, formerly at the University of Wyoming College of Law and a respected Wyoming state constitutional law scholar, has made a forceful case against the separation-of-powers objection contained in the various nonjusticiability doctrines, such as standing and political question. See, Robert B. Keiter, An Essay on Wyoming Constitutional Interpretation, 21 Land & Water L.Rev. 527 (1986). He has described in detail the significant institutional differences between the Article III federal courts and the state courts which justify a more expansive judicial review role for Wyoming's courts on public law issues than is appropriate for the federal courts. His concern, which we share, is that as these doctrines develop they should be clearly related to the Wyoming Constitution rather than the federal charter. Id. at 541. In the state constitutional law context, Professor Keiter is not alone. Seq, eg., Helen Hershkoff, State Courts and the "Passive Virtues": Rethinking the Judicial Function, 114 Harv. L.Rev. 1834 (2001) ("[Sitate courts, because of their differing institutional and normative position, should not conform their rules of access to those that have developed under Article III. Instead, state systems should take an independent and pragmatic approach to judicial authority in order to facilitate and support their integral and vibrant role in state governance." Id. at 1941). It should probably not go unnoticed that Professor Michael Heise, whose law review article on Wyoming's school finance litigation is cited by the dissent, has spoken on the point when he concludes in that article: "[Mly impression is that the weight of scholarly and judicial opinion on this issue decidedly favors the conclusion reached by the Wyoming [Supreme] Court in Campbell." Michael Heise, Schoolkouses, Courthouses, and Statehouses: Educational Finance, Constitutional Structure, and the Separation of Powers Doctrine, 83 Land & Water L.Rev. 281, 304 n. 141 (1998).
[141] Although what we have said to this point should end the matter, let us briefly take one more step and discuss the conclusion in the dissent that judicially discoverable and manageable standards do not éxist in the education provisions of the Wyoming Constitution. Relying largely on a few dissenting opinions from school finance cases in Ohio, Washington, and South Carolina, and without the benefit of a state constitutional analysis, the dissent describes the words of the framers and ratifiers contained in these provisions as "amorphous," concluding apparently that they have no meaning and express no principles. One need only examine the litany of case law, state and federal, interpreting the broad language of such constitutional provi
states its principles in majestic generalities....
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The role of a judge ... is to find the meaning of a text-a process which includes finding its degree of generality, which is part of its meaning-and to apply that text to a particular situation, which may be difficult if its meaning is unclear.... The problem is most difficult when dealing with the broadly stated provisions of the Bill of Rights.... In dealing with such provisions, a judge should state the principle at the level of generality that the text and historical evidence warrant.
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Original understanding [finds] the level of generality that interpretation of the words, structure, and history of the Constitution fairly supports. This is a solution generally applicable to all constitutional provisions as to which historical evidence exists.
Robert H. Bork, The Tempting of America 147-50 (The Free Press 1990).
[142] Judge Bork believes in, as we do, a "historically rooted" constitution. Judge Bork states:
The provisions of the Constitution state profound but simple and general ideas. The law laid down in those provisions gradually gains body, substance, doctrines, and distinctions as judges, equipped at first with only those ideas, are forced to confront new situations and changing circumstances. It is essential, however, that the new developments always be weighed in the light of the lessons history provides about the principles meant to be enforced.
Id. at 852. For an illuminating and valuable history lesson on the Wyoming Constitution, see Robert B. Keiter and Tim Newcomb, The Wyoming State Constitution 1-28 (Greenwood Press 1998).
[143] The dissent ignores Judge Bork's counsel that
[alll that counts is how the words used in the Constitution would have been understood at the time. The original understanding is thus manifested in the words used and in secondary materials, such as debates at the conventions, public discussion, newspaper articles, dictionaries in use at the time, and the like. Almost no one would deny this; in fact almost everyone would find it obvious to the point of thinking it fatuous to state the matter....
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... [Lawyers and judges should seek in the Constitution what they seek in other legal texts: the original meaning of the words.
Bork, supra, at 144-45. As the constitutional decisions of this court reveal, from Rasmussen v. Baker, 7 Wyo. 117, 50 P. 819 (1897), to the present, this court has heeded this counsel. In Campbell I in particular did this court analyze the words of the education provisions of our state constitution using a sound methodology of constitutional analysis to achieve the understanding of the text manifested in the words used and in secondary materials. The petitioners have challenged neither the analysis nor the resulting understanding. The proclamation that these words of the framers and ratifiers-the people-have no judicially discoverable meaning, commits the very heresy that Judge Bork condemns:
The heresy, which dislocates the constitutional system, is that the ratifiers' original understanding of what the Constitution means is no longer of controlling, or perhaps of any, importance.... The result is a belief ... that judges may ... destroy old [principles], thus altering the principles actually to be found in the Constitution.
Bork, supra, at 6.
[144] Joining with his former federal court of appeals colleague in this condemnation, Justice Antonin Scalia has written:
*337 Not that I agree with, or even take very seriously, the intricately elaborated scholarly criticisms to the effect that (believe it or not) words have no meaning. They have meaning enough, as the scholarly critics themselves must surely believe when they choose to express their views in text rather than music. But what is true is that it is often exceedingly difficult to plumb the original understanding of an ancient text. Properly done, the task requires the consideration of an enormous mass of material.... Even beyond that, it requires an evaluation of the reliability of that material.... And further still, it requires immersing oneself in the political and intellectual atmosphere of the time-somehow placing out of mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day. It is, in short, a task sometimes better suited to the historian than the lawyer.
Antonin Scalia, Originalism: The Lesser Eivil, 57 Cincinnati L.Rev. 849, 856-57 (1989).
[145] Finally, to put a fine point on the subject, we are reminded of Judge Bork's counsel, after favorably offering Brown v. Board of Education, 347 U.S. 483, 492-95, 74 S.Ct. 686, 690-92, 98 L.Ed. 873 (1954), as a worthy example of a court correctly applying an old principle according to a new understanding of a social situation. He warned:
The important thing, the ultimate consideration, is the constitutional freedom that is given into our keeping. A judge who refuses to see new threats to an established constitutional value, and hence provides a crabbed interpretation that robs a provision of its full, fair and reasonable meaning, fails in his judicial duty. That duty, I repeat, is to ensure that the powers and freedoms the framers [and ratifiers] specified are made effective in today's circumstances. The evolution of doctrine to accomplish that end contravenes no postulate of judicial restraint.
Ollman v. Evans, 750 F.2d 970, 996 (D.C.Cir.1984) (Bork, J., concurring). This court's constitutional analysis in this on-going litigation contravenes no postulate of judicial restraint.
Conclusion
[146] This court remains cognizant that just as all should recognize that our state's schools are the experts in providing an education to our children, all must recognize and rely upon the legislature's constitutionally granted authority and experience in designing and implementing our state's educational system. We refuse to believe that legislators do not consider our children's right to education as fundamental and important. Nor can we imagine that legislators will deliberately fail to uniformly assess through their chosen methodology the level of funds necessary to complete the capital construction goals identified through their plan and classified by this court as constitutionally required.
~ [147] As the school districts and the legislature combine their efforts to implement the legislative plan for capital construction, these fundamental precepts apply. First, the State is responsible for funding capital construction of facilities to the level deemed adequate by state standards. Second, the Legislature is in control of the ultimate amount of spending as it exercises its responsibility of review and oversight of specific projects proposed by local school districts. Third, local school districts may supply revenue in excess of Legislative spending. Lastly, local bonded indebtedness is no longer required.
[T 48] The effort we all must maintain as citizens and officials is to remain focused on the very purpose those who created the constitution of this state sought: the adequate and equal opportunity for education of our children. When that purpose is given its proper place in our priority for our future as a state, open discussion of divergent points of view will inevitably lead to better resolution of issues in education. Our history must not be based on a legacy of school finance cases laid on the doorstep of the supreme court, but rather on the considerate resolution of never-ending challenges we all face as responsible adults when providing for our children.
. The Federalist No. 78, at 577-78 (Alexander Hamilton) (John C. Hamilton ed. 1880).
. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971) ("Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies"). See also Hutto v. Finney, 437 U.S. 678, 687-88, 98 S.Ct. 2565, 2571-72, 57 L.Ed.2d 522 (1978).