Aaron Sanderford
LINCOLN — The Nebraska Supreme Court heard arguments Tuesday in a lawsuit seeking to protect a new school voucher program for private K-12 education from repeal by ballot measure.
The court must decide by the Friday deadline for Secretary of State Bob Evnen to finalize the Nov. 5 ballot. Evnen’s brief asked justices to decide the constitutional question, not punt.
The question is whether Article III, Section 3 of the Nebraska Constitution applies to a possible repeal of Legislative Bill 1402, the latest version of the state’s school choice law.
That provision of the constitution prohibits referendums from repealing “appropriations for the expense of the state government” or an existing state institution.
Several justices questioned whether LB 1402, which created the voucher program, counts as an appropriation without its related-but-separate appropriations bill, LB 1402A.
One reason: The referendum pushed by Support Our Schools and those opposing spending public money on private schools purposefully avoided repealing the separate appropriations bill.
“If the A bill didn’t exist, would any money be forthcoming?” Justice Stephanie Stacy asked, repeating a question asked by Justice Lindsey Miller-Lerman.
Chief Justice Mike Heavican and Justice Jonathan Papik pressed the attorneys seeking to toss the measure on whether the appropriations bill would lack purpose without LB 1402.
“Are they the same act?” Papik asked.
Venzor argues bills tied together
Attorney Tom Venzor argued the two bills are tied together. He spoke for representatives of Latasha Collar, the mother of a Douglas County student who received an “Opportunity Scholarship” for private education, which was granted under the predecessor of the school choice law currently being challenged.
Venzor argued that because LB 1402 changed the funding for the scholarship program from a tax credit to a direct state appropriation, it can’t be repealed by ballot measure.
Venzor, who is 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 potential repeal to the people’s elected representatives.
He later admitted under judicial questioning that the measure did not directly target LB 1402’s separate appropriations bill, but argued that the referendum was at minimum an indirect attack on the separate appropriation, which he said also would be constitutionally questionable.
“LB 1402 is an appropriation for the expense of state government, and … those are the types of legislative bills that don’t belong on the ballot,” he said in an interview after the hearing.
Gutman argues the bills are separate
On the other side was Daniel Gutman, one of the attorneys defending the referendum.
Gutman, representing Support Our Schools, the group that wants to reserve public school funding for public K-12 schools, argued LB 1402 was not an appropriation. He said LB 1402A, which contained a $10 million appropriation, was voted on separately from LB 1402 and would still exist if voters rejected LB 1402.
Gutman said the restriction on what could be voted on had never been so narrowly applied to the people’s right to petition as Venzor sought for the court to rule.
“It shouldn’t start now,” he said.
Gutman raised constitutional questions of his own about the school choice law, arguing that it might direct state funds to private institutions. That’s prohibited by Article VII, Section 11.
He argued that LB 1402 ultimately benefits private schools.
Venzor said the state already funds scholarships for private college and technical education and has a history of funding projects for private colleges and universities.
He criticized Gutman for “framing shifts.” Venzor said LB 1402 does not represent state funding of private schools. He said it is funding for individuals to use for K-12 education.
His case received support from a brief filed by LB 1402’s sponsor, State Sen. Lou Ann Linehan of Omaha, along with State Sen. Justin Wayne of Omaha and State Treasurer Tom Briese.
The brief argued that the Legislature’s majority viewed LB 1402 as an appropriation and that even legislative critics such as State Sen. Danielle Conrad of Lincoln had acknowledged as much.
The Nebraska Supreme Court has been buried in lawsuits this month contesting high-profile measure that Evnen has certified for the November ballot.
Evnen pushes to avoid technicalities
Evnen and Attorney General Mike Hilgers complicated the lawsuit involving LB 1402 by filing a pledge to force another lawsuit if the court sidesteps the key legal question and instead rules on a technicality.
Nebraska Solicitor General Eric Hamilton confirmed Tuesday that Evnen plans to decertify the voucher-related ballot measure if the court allows it to move forward because of a technical issue.
If the ballot measure was decertified, Support Our Schools and other backers of the petition would sue, with an extremely tight deadline, and might risk the measure being removed from the ballot, supporters said.
Among the technicalities Evnen’s office hoped to avoid was that the Collar lawsuit was filed before Evnen formally certified the measure for the ballot.
Another was an issue Gutman raised, that a notary for at least one filing in the lawsuit came from Texas, not Nebraska. Justices’ questions on Tuesday seemed to leave room for overlooking that.
Hamilton said Evnen’s office and the Attorney General’s Office would follow the court’s decision if rules that the referendum qualifies for the ballot under the Nebraska Constitution.
Evnen argued in the brief that he might no longer believe the measure qualifies for the ballot. His position largely echoed Venzor’s argument that LB 1402 is an appropriation and therefore not subject to a ballot measure.
Gutman argued Evnen might lack the authority to decertify a ballot issue once he has certified it. Gutman asked for “a decision on the merits,” saying he feared his clients might otherwise run out of time to sue.
“I don’t see how the government will be crippled by a repeal of this enactment,” Gutman said.
After the hearing, Tim Royers, the new president of the Nebraska State Education Association, criticized Evnen and Hilgers for their latest pushes to avoid letting citizens vote on the school choice law.
“They’re doing everything they can to make it as difficult as possible for us to get on the ballot,” he said.