Chief Justice Kite comments on overturning of Senate File 104 (the Cindy Hill bill)

During Gov. Matt Mead’s nearly 45 minute State of the State address today, he never directly touched on the recent Wyoming Supreme Court decision to overturn Senate File 104. That measure, passed during the 2013 General Session, transferred management of the Wyoming Department of Education  from the Office of Superintendent of Public Instruction to an appointed director. State Attorney General Peter Michael is currently pursuing a request for a rehearing of the decision, which must be filed with the Supreme Court by Wednesday of this week.

Following Mead’s address, Chief Justice Marilyn Kite spoke about current issues in Wyoming’s judicial branch. Almost immediately, she turned to the topic that she suspected would be on everyone’s mind given her position as Chief Justice of the court that struck down the most controversial legislation of 2013:

“I decided I could not stand before you today and ignore the elephant in the room. Last session this body passed SF 104 with a two-thirds vote. The constitutionality of that law was challenged, and two weeks ago, with a split vote of three to two the Supreme Court ruled that statute unconstitutional.”

“We understand that decision has caused great concern for many in this chamber, and just as certain, it will represent new challenges for the legislature, for the governor, and likely four the court as well. Clearly there is nothing to be done but to embrace those challenges and to go back to work fulfilling our respective constitutional obligations to the people of this state.”

What the Chief Justice said next gave a tone of finality to the Supreme Court’s decision: “As the philosopher once said, ‘the the moving finger writes, and having writ, moves on, not all the piety nor wit will lure it back to cancel half a line.’”

That quote comes from the Rubaiyat of Omar Khayyam, which was written in Persia in the eleventh century. Some one thousand years later, some in the audience interpreted Kite’s use of the couplet as a statement that the court is unlikely to reconsider it’s decision to strike down Senate File 104. That Justice Kite said such a thing — even though she voted against the majority opinion of the bill’s unconstitutionality — is an intriguing comment.

Chief Justice of Wyo. Supreme Court says she recognizes decision on SF104 has caused great concern for #wyleg pic.twitter.com/2ROzDSldUW

— Gregory Nickerson (@GregNickersonWY) February 10, 2014

The earliest the court would issue its decision over whether to rehear the case over Senate File 104 would be later this week. The Attorney General has until Wednesday to file the petition for a rehearing. After that, the court could issue a quick negative decision, or take a longer time to deliberate.

Later in the day, members of the legislature’s Management Council grappled with the uncertainty of that timeline while considering how to proceed with a potential special session. Talk of such a session began last Friday, when the Council opened the possibility of meeting in May or June to redraft a version of Senate File 104 that would pass constitutional muster.

At the end of the council’s meeting, the group of lawmakers decided to draft a bill that would study the Supreme Court decision and the need for a special session. The bill may also amend statutes dealing with the transfer of duties away from the Office of the Superintendent. The bill would leave open the possibility of restoring the duties to the office should the Supreme Court leave its decision in force. The group moved the bill before knowing of the court’s ultimate decision on the rehearing because all legislation must be introduced by this Wednesday to be considered during the short 20-day budget session.

In contrast to Kite’s previous comments that spoke of finality, one member of the committee forecasted the potential staying power of the issue, which seems poised to work its way back from the court system into the legislature. “There is a substantial period of time that is going to pass before we get to a final decision on Senate File 104,” Rep. Kermit Brown (R-Laramie) told his fellow members of the Management Council.