Nebraska Supreme Court investigates whether school choice law is valid
LINCOLN — The Nebraska Supreme Court on Tuesday heard a lawsuit seeking to protect a new private K-12 education voucher program from being voted to repeal.
The court must decide before a Friday deadline for Secretary of State Bob Evnen to complete the Nov. 5 vote. Evnen’s brief asks the justices to decide constitutional issues, not place bets.
The question is whether Article III, Section 3 of the Nebraska Constitution applies to Legislative Bill 1402, which would have repealed the latest version of the state’s school choice law.
This provision of the Constitution prohibits referendums to abolish “appropriations for state expenditures” or existing state agencies.
Several justices questioned whether LB 1402, which created the voucher program, counted as an appropriation without a related but separate appropriations bill, LB 1402A.
One reason: The referendum pushed by those who support our schools and those who oppose the use of public funds for private schools intentionally avoids repealing a separate appropriations bill.
“If Bill A didn’t exist, would there be money?” Judge Stephen Stacey repeated a question posed by Judge Lindsay Miller-Lerman.
Chief Justice Mike Heavican and Justice Jonathan Papik pressed attorneys seeking to overturn the measure, asking whether the appropriations bill would lack purpose without LB 1402.
“Are they doing the same thing?” Papik asked.
Venzor sees bills bundled together
Attorney Tom Venzo argued that the two bills are linked. He spoke on behalf of Latasha Collar,Douglas County Student’s Mother She received an Opportunity Scholarship for private education, which was awarded under a predecessor to the school choice law now being challenged.
Venzor argued that because LB 1402 changed funding for the scholarship program from tax credits to direct state appropriations, it cannot be repealed via a ballot measure.
Venzor, best known for his work as executive director of the Nebraska Catholic Conference, argued that funding education is a core function of state government and should be treated as such, leaving any possible repeal to the people’s elected representatives.
He later acknowledged during a judicial inquiry that the measure did not directly target LB 1402’s separate appropriations bill, but argued that the referendum was at least an indirect attack on separate appropriations, which he said was also constitutionally problematic.
“LB 1402 is an appropriation for state spending, and … these are the types of legislative bills that are not on the ballot,” he said in an interview after the hearing.
Gutmann considers the bills separate
On the other side is Daniel Gutmann, one of the lawyers defending the referendum.
Gutman, who represents the group Support Our Schools, which wants to preserve public school funding for public K-12 schools, believes LB 1402 is not a grant. He said LB 1402A, which contains $10 million in appropriations, is on a separate ballot from LB 1402 and if voters reject LB 1402, the bill remains.
Gutman said restrictions on what can be voted on have never applied so narrowly to the people’s right to petition as the court ruling Vinzo is seeking.
“We shouldn’t start now,” he said.
Gutmann raised his own constitutional concerns with the school choice law, arguing it could divert state funds to private institutions. This is prohibited by Article 7, paragraph 11.
He believes LB 1402 ultimately benefits private schools.
Venzor said the state already provides scholarships for private colleges and technical education and has a history of funding programs for private colleges and universities.
He criticized Gutmann’s “frame shift.” Venzor said LB 1402 does not represent state funding for private schools. He said this is personal funding for K-12 education.
His case was supported by Omaha State Sen. Lou Ann Linehan, the sponsor of LB 1402, Omaha State Sen. Justin Wayne, and Appropriations Committee Chairman, State Sen. Rob Support for the brief submitted by Rob Clements.
The brief notes that a majority in the Legislature views LB 1402 as an appropriation, and even critics of the legislation such as Sen. Danielle Conrad, R-Lincoln, acknowledge this.
The Nebraska Supreme Court this month is mired in litigation challenging the high-profile measure Avni approved for the November ballot.
Evnen tries to avoid technical details
Evnen and Attorney General Mike Hilgers have pledged to complicate litigation involving LB 1402 by forcing another lawsuit if the court sidesteps key legal issues and rules on technicalities.
Nebraska Deputy Attorney General Eric Hamilton confirmed Tuesday that Avni plans to decertify the voucher-related ballot measure if a court allows the measure to move forward on a technicality.
If the ballot measure is removed, Support Our Schools and other backers of the petition would have an extremely tight deadline to sue and risk the measure being removed from the ballot, supporters said.
One of the technicalities Effnan’s office wanted to avoid was filing the collar lawsuit before Effnan formally approved the ballot measure.
Another issue Gutman raised was that the notary for at least one of the documents in the lawsuit was from Texas, not Nebraska. The justices’ questions on Tuesday seemed to leave room for overlooking that.
Hamilton said Evan’s office and the attorney general’s office would follow the court’s decision if the referendum qualifies for the ballot under the Nebraska Constitution.
Avnen argued in the briefing that he may no longer believe the measure qualifies for the vote. His position largely echoes Venzor’s argument that LB 1402 is an appropriation and therefore not affected by the ballot measure.
Gutman argued that once Avnien certifies a ballot issue, he may not have the authority to decertify that ballot. Gutmann asked for a “decision on the merits” and said he was concerned his client might not have time to file suit.
“I don’t think repealing this law will have any impact on the government,” Gutmann said.
After the hearing, Tim Royes, the new president of the Nebraska Education Association, criticized Evening and Hilgers for their recent attempts to avoid a citizen vote on school choice laws.
“They’re doing everything they can to make it as difficult as possible for us to get to the polls,” he said.
