Cain v. Horne

• Decision Date: 15 May 2008
• Docket Number: No. 2 CA-CV 2007-0143.,2 CA-CV 2007-0143.
• Citation: 183 P.3d 1269,218 Ariz. 301
• Parties: Virgel CAIN, Sandy Bahr, Scott Holcomb, Arizona Association of School Business Officials, Arizona Education Association, Arizona Federation of Teacher Unions, Arizona Parent Teacher Association, Arizona Rural Schools Association, Arizona School Administrators, Inc., Arizona School Boards Association, American Civil Liberties Union of Arizona, and People for the American Way, Plaintiffs/Appellants, v. Tom HORNE, in his capacity as Superintendent of Public Instruction, Defendant/Appellee, and Jessica Geroux, Andrea Weck, Kristina Peterson, Kimberly Wuestenberg, Edwin Rivera, and Mike and Shirley Okamura, Intervenors/Appellees.
• Court: Arizona Court of Appeals

183 P.3d 1269

218 Ariz. 301

Virgel CAIN, Sandy Bahr, Scott Holcomb, Arizona Association of School Business Officials, Arizona Education Association, Arizona Federation of Teacher Unions, Arizona Parent Teacher Association, Arizona Rural Schools Association, Arizona School Administrators, Inc., Arizona School Boards Association, American Civil Liberties Union of Arizona, and People for the American Way, Plaintiffs/Appellants, v. Tom HORNE, in his capacity as Superintendent of Public Instruction, Defendant/Appellee, and Jessica Geroux, Andrea Weck, Kristina Peterson, Kimberly Wuestenberg, Edwin Rivera, and Mike and Shirley Okamura, Intervenors/Appellees.

No. 2 CA-CV 2007-0143.

Court of Appeals of Arizona, Division 2, Department B.

May 15, 2008.

Miller, LaSota & Peters, PLC By Donald M. Peters and Wendy L. Kim, Arizona Center for Law in the Public Interest By Timothy M. Hogan, Phoenix, Thomas W. Pickrell, Mesa, Attorneys for Plaintiffs/Appellants.

Terry Goddard, Arizona Attorney General By William A. Richards and Chad B. Sampson, Phoenix, Attorneys for Defendant/Appellee.

Institute for Justice, Arizona Chapter By Timothy D. Keller and Jennifer M. Perkins, Tempe, Institute for Justice By William H. Mellor and Clark M. Neily III, Arlington, Virginia, Thomas A. Zlaket PLLC By Thomas A. Zlaket, Tucson, Attorneys for Intervenors/Appellees.

Udall, Shumway & Lyons, P.L.C. By Denise Lowell-Britt and Jessica S. Sanchez, Mesa, Attorneys for Amicus Curiae Arizona Council for Administrators of Special Education.

Perkins Coie Brown & Bain P.A. By Lee Stein and Elizabeth J. Kruschek, Phoenix, Attorneys for Amicus Curiae National School Boards Association.

OPINION

VÁSQUEZ, Judge.

¶ 1 In this action challenging the constitutionality of two "school voucher" statutes, appellants Virgel Cain and other interested individuals and organizations (collectively, "Cain") appeal from a judgment on the pleadings in favor of appellee Tom Horne, in his capacity as State Superintendent of Public Instruction, dismissing all of Cain's claims with prejudice. Although we agree with part of the trial court's reasoning, for the following reasons, we reverse and remand for further proceedings consistent with this decision.

Facts and Procedural Background

¶ 2 In 2006, the Arizona legislature enacted House Bill 2676 and Senate Bill 1164, establishing respectively the Arizona Scholarships for Pupils with Disabilities Program (the "scholarship program"), codified at A.R.S. §§ 15-891 through 15-891.06, and the Arizona Displaced Pupils Choice Grant Program (the "grant program"), codified at A.R.S. §§ 15-817 through 15-817.07 and § 43-1032. Under the scholarship program, public-school students with a disability may transfer to a public or private, primary or secondary school, and the state will pay a scholarship up to the amount of basic state aid the student would generate for a public school district. §§ 15-891, 15-891.04. Under the grant program, the state will pay $5,000 or the cost of tuition and fees, whichever is less, for children who have been placed in foster care to attend a private primary or secondary school. §§ 15-817.02, 15-817.04. Under both programs (collectively, the "school voucher programs"), parents or legal guardians select the school their child will attend. The state then disburses grant funds to the parent or guardian, who must "restrictively endorse" the check or warrant for payment to the school. §§ 15-817.01, 15-891.03(F). Both sectarian and nonsectarian schools may participate in the school voucher programs, and schools are not required to alter their "creed, practices or curriculum" in order to receive the funding. §§ 15-817.07(B), 15-891.02, 15-891.05(B).

¶ 3 In February 2007, Cain filed a complaint in Maricopa County Superior Court, challenging the constitutionality of the school voucher programs and seeking to enjoin Horne from implementing them. He also filed an application for a preliminary injunction and a motion for summary judgment. After intervenors-appellees Jessica Geroux and other interested individuals ("Geroux") successfully moved to intervene, they moved to dismiss Cain's claims. Horne joined in Geroux's motion to dismiss and moved for judgment on the pleadings. The trial court granted Horne's motion, finding the school voucher programs did not violate the provisions of the Arizona Constitution cited by Cain, and dismissed all of Cain's claims with prejudice. We have jurisdiction of this appeal under A.R.S. § 12-2101(B) (appeal from final judgment) and § 12-2101(F)(2) (appeal from denial of injunctive relief).

Discussion

Standard of Review

¶ 4 "A motion for judgment on the pleadings tests the sufficiency of the complaint and should be granted if the complaint fails to state a claim for relief." Emmett McLoughlin Realty, Inc. v. Pima County, 203 Ariz. 557, ¶ 4, 58 P.3d 39, 40 (App.2002). When, as here, a plaintiff asserts a statute is facially unconstitutional,¹ the issue is a matter of law that may be resolved by a judgment on the pleadings. See id.; Brown v. White, 4 Ariz.App. 255, 257, 419 P.2d 385, 387 (1966) (judgment on pleadings improper when constitutional challenge to statute as applied raises genuine issue of fact).

¶ 5 We review the trial court's conclusions of law de novo. Emmett McLoughlin Realty, 203 Ariz. 557, ¶ 4, 58 P.3d at 40. In deference to the legislature, however, we begin with a presumption that the statute is constitutional. Id. "Indeed we have a duty to construe statutes in harmony with the constitution if it is possible to reasonably do so." Martin v. Reinstein, 195 Ariz. 293, ¶ 16, 987 P.2d 779, 788 (App.1999). But, in interpreting a constitutional provision, we "do not go outside the plain language of the provision unless the language is unclear," Phelps Dodge Corp. v. Ariz. Elec. Power Coop., Inc., 207 Ariz. 95, ¶ 42, 83 P.3d 573, 587 (App. 2004); we "give words their natural, obvious and ordinary meaning unless defined otherwise in the constitution," Ariz. Minority Coal. for Fair Redist'g v. Ariz. Indep. Redist'g Comm'n, 211 Ariz. 337, ¶ 52, 121 P.3d 843, 858 (App.2005); and we "give meaning to each word, phrase, clause, and sentence of the provision so that no part will be void, inert, redundant, or trivial," In re Cameron T., 190 Ariz. 456, 460, 949 P.2d 545, 549 (App.1997).

¶ 6 Here, Cain argues the school voucher statutes violate two distinct provisions of the Arizona Constitution. First, he contends the statutes violate article II, § 12 of the Arizona Constitution (the "Religion Clause"), which provides: "No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment." Second, he maintains the statutes are unconstitutional pursuant to the prohibitions in article IX, § 10 of the Arizona Constitution (the "Aid Clause"), read either alone or in conjunction with other constitutional provisions establishing a system of public education. The Aid Clause provides: "No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation." We note that although there may be some overlap between these clauses, the Religion Clause — Arizona's analog to the federal Establishment Clause — was intended to ensure the separation of church and state, whereas the Aid Clause — which has no equivalent in the United States Constitution — was aimed at placing restrictions on the disbursement of public funds to specified institutions, both religious and secular. See Almond v. Day, 197 Va. 419, 89 S.E.2d 851, 855, 858 (1955) (considering similar clauses in Virginia Constitution); see also Kotterman v. Killian, 193 Ariz. 273, ¶ 127, 972 P.2d 606, 638 (1999) (Feldman, J., dissenting) (noting article IX, § 10 based on "Arizona's strong policy of refusing to fund private or sectarian education"). And, while we analyze Cain's Religion Clause challenge according to Arizona precedent and in the light of federal Establishment Clause jurisprudence, the question of whether or when a program that directs state funds to private schools violates the Aid Clause is an issue of first impression.² See generally Kotterman, 193 Ariz. 273, 972 P.2d 606 (analyzing tax credit program under Religion Clause; not reaching issue of whether program constituted aid under Aid Clause).

Religion Clause

¶ 7 In support of his argument that the school voucher statutes violate the Religion Clause, Cain relies primarily on Witters v. State Commission for the Blind, 112 Wash.2d 363, 771 P.2d 1119 (1989). There, the Washington Supreme Court held that an identical phrase in Washington's Constitution prohibited the state from providing financial assistance "to pay for a religious course of study at a religious school." Id. at 1121. Cain correctly points out that our supreme court has, for historical reasons, given substantial weight to the Washington Supreme Court's interpretations of sections of that state's constitution that are identical or very similar to our own. See Faires v. Frohmiller, 49 Ariz. 366, 372, 67 P.2d 470, 472 (1937), superseded by statute as stated in Ward v. Stevens, 86 Ariz. 222, 230, 344 P.2d 491, 496 (1959); Schultz v. City of Phoenix, 18 Ariz. 35, 42, 156 P. 75, 77 (1916).

¶ 8 However, our supreme court has specifically distanced itself from the Washington court's decisions as they apply to this particular shared provision in our constitutions. Kotterman, 193 Ariz. 273, ¶¶ 68-71, 972 P.2d at 624-25. Furthermore, the court's analysis of Arizona's constitution in Kotterman, id. at ¶ 46, and Community Council v. Jordan, 102 Ariz. 448, 451-52, 432 P.2d 460, 463-64 (1967),³ suggests a position virtually indistinguishable from the United States Supreme Court's interpretation of the federal Establishment Clause. Applying that interpretation to an Establishment Clause challenge to the very educational funding at issue in Witter...