Moses v. Skandera

Decision Date27 October 2014
Docket Number33,002.,No. 34,974.,34,974.
Citation346 P.3d 396
PartiesCathy MOSES and Paul F. Weinbaum, Plaintiffs–Appellants, v. Hanna SKANDERA, Acting Secretary of Education and New Mexico Public Education Department, Defendants–Appellees, and Albuquerque Academy, et al., Defendants–Intervenors–Appellees.
CourtCourt of Appeals of New Mexico

Frank Susman, The Graeser Law Firm, LLC, Christopher L. Graeser, Santa Fe, NM, for Appellants.

Albert V. Gonzales, Deputy General Counsel, Public Education Department Santa Fe, NM, Sutin, Thayer & Browne, P.C., Susan M. Hapka, Albuquerque, NM, for Appellees.

Modrall, Sperling, Roehl, Harris & Sisk, P.A., R.E. Thompson, Emil J. Kiehne, Jennifer G. Anderson, Sarah M. Stevenson, Albuquerque, NM, for IntervenorsAppellees.



{1} Under the Instructional Material Law, NMSA 1978, §§ 22–15–1 to –14 (1967, as amended through 2011) (IML), the State of New Mexico Public Education Department (the Department) purchases and distributes instructional material to school districts, state institutions, and private schools as agents for the benefit of eligible students. Section 22–15–5, –7(B). Plaintiffs, Cathy Moses and Paul F. Weinbaum, challenge the constitutionality of the IML with respect to the purchase and distribution of instructional material to private schools. They rely upon the New Mexico Constitution Article IX, Section 14 (prohibiting the state from directly or indirectly lending or pledging “its credit or mak [ing] any donation to or in aid of any person, association or public or private corporation”); Article XII, Section 3 (prohibiting funds from use in support of sectarian, denominational, or private school); Article IV, Section 31 (prohibiting appropriation for educational purposes “to any person, corporation, association, institution or community, not under the absolute control of the state); and Article II, Section 11 (granting the freedom to worship God according to one's own conscience and prohibiting the support of any religious sect or denomination). Plaintiffs further contend that Zellers v. Huff, 1951–NMSC–072, 55 N.M. 501, 236 P.2d 949, is controlling precedent in this case.

{2} The district court rejected Plaintiffs' arguments and granted summary judgment to Defendants Hanna Skandera, Acting Secretary of Education, and New Mexico Public Education Department. We hold that Zellers is not controlling and that the IML does not violate the New Mexico Constitution. We therefore affirm the district court's summary judgment.


{3} Plaintiffs filed a verified complaint seeking a declaratory judgment as to the constitutionality of the IML. After Defendants answered, Plaintiffs filed a motion for summary judgment. At a hearing on the motion for summary judgment, the district court stated that it intended to grant the motion based on Zellers. Intervenors, the Albuquerque Academy, Anica and Maya Benia, the New Mexico Association of Nonpublic Schools, Rehoboth Christian School, St. Francis School, Sunset Mesa School, and Hope Christian School, then filed a motion to intervene. After Plaintiffs withdrew their initial opposition to intervention, the district court granted intervention and ordered additional briefing concerning the applicability of Zellers. The district court held a second hearing on the motion for summary judgment, reversed its prior ruling, and denied Plaintiffs' motion for summary judgment. It entered an order granting summary judgment to Defendants.


{4} The IML emanates from attempts by the New Mexico Legislature over time to provide textbooks and instructional material to New Mexico students. In 1929, the Legislature enacted legislation entitled “Free Text Books” to provide free textbooks in the public schools and appropriated funds to cover purchases for first and second grade students. NMSA 1929, §§ 120–1701, 1702 (1929). In 1931, the Legislature created “a state school building, text book and rural aid fund” under the supervision of the State Board of Education and appropriated the annual balance of the fund under the Mineral Leasing Land Act (MLLA). 1931 N.M. Laws, ch. 138, §§ 1, 2. In 1933, the Legislature expanded the Free Text Book Fund of the Free Text Books statute to include “free text books for all children in the schools in the State of New Mexico, from the first to eighth grades inclusive[.] 1933 N.M. Laws, ch. 112, § 1. The statute was amended and recodified in 1941 and entitled “Text Books.” It provided appropriation from the fund under the MLLA. NMSA 1941, §§ 55–1701 to –20 (1941 Comp.); § 55–1705. This law was amended and recodified in 1967 and entitled “School Textbook Law.” NMSA 1953, § § 77–13–1 to –14 (Vol. 8, 1967 Repl. Pocket Supp.). The School Textbook Law was amended in 1975 and labeled the “Instructional Material Law.” NMSA 1953, §§ 77–13–1 to –14 (Interim Supp.1975). The IML was, in turn, amended and recompiled in 1978. NMSA 1978, §§ 22–15–1 to –14 (2005).

{5} The operation of the IML has historically been connected to the MLLA. Indeed, the principal, if not exclusive, funding source for the instructional material fund is the MLLA. Under the MLLA, one-half of the monies that the federal government receives from the rental of public lands is paid to the state within which the public land is located. 30 U.S.C. § 191 (2012). The New Mexico Legislature makes an annual appropriation from the MLLA to the instructional material fund. NMSA 1978, § 22–8–34(A) (2001).

{6} As currently enacted, the IML establishes the instructional material fund, a non-reverting fund administered by the Department, to be used to purchase “instructional material,” defined under the IML as “school textbooks and other educational media that are used as the basis for instruction[.] Section 22–15–2(C); –5. Free use of instructional material is provided to students attending early childhood programs and any grade through grade twelve in a public school, a state institution, or a private school approved by the Department. Section 22–15–7(A). Under the IML, schools obtain instructional material as agents for their students. Section 22–15–7(B). The process differs for private schools. While the Department distributes funds to public schools and state institutions to acquire instructional material, it makes payment directly to an in-state depository for the instructional material for private schools. Section 22–15–9(D), (E). The school district or school is then responsible to distribute the instructional material for the students' use and to keep it safe. Section 22–15–7(B), (C).

{7} The school districts or schools, as agents for their students, select particular instructional material from a multiple list adopted by the Department. Section 22–15–8(A), (B). Local school boards must solicit parental involvement in the process. Section 22–15–8(B). School districts may apply for a waiver to use a maximum of fifty percent of their annual allocations for instructional material not on the multiple list, and private schools may expend “up to fifty percent of their instructional material funds for items that are not on the multiple list; provided that no funds shall be expended for religious, sectarian or nonsecular materials[.] Section 22–15–9(C).

Standard of Review

{8} Plaintiffs' constitutional arguments assert that the IML conflicts with four provisions of the New Mexico Constitution. In addressing these provisions, we review questions concerning constitutional interpretation as matters of law under de novo review. Tri–State Generation & Transmission Ass'n, Inc. v. D'Antonio, 2012–NMSC–039, ¶ 11, 289 P.3d 1232. We must presume that statutes are valid and uphold them against constitutional challenge “unless we are satisfied beyond all reasonable doubt that the Legislature exceeded its constitutional authority. State ex rel. Udall v. Pub. Emps. Ret. Bd., 1995–NMSC–078, ¶ 7, 120 N.M. 786, 907 P.2d 190.

Article XII, Section 3 of the New Mexico Constitution

{9} As pertinent to this case, Article XII, Section 3 provides that no “funds appropriated, levied or collected for educational purposes, shall be used for the support of any sectarian, denominational or private school [.] Our Supreme Court has stated that the purpose of this provision “is to insure exclusive control by the state over our public educational system, and to insure that none of the state's public schools ever become sectarian or denominational.” Prince v. Bd. of Educ. of Cent. Consol. Indep. Sch. Dist. No. 22, 1975–NMSC–068, ¶ 20, 88 N.M. 548, 543 P.2d 1176. By “control,” it meant “control over all of the affairs of the school[,] including curriculum, discipline, finances, and administration. Id. ¶ 21.

{10} Plaintiffs do not assert that the distribution of instructional material to private schools as agents for their students interferes with the state's control over the public educational system. Indeed, under the IML, the Department controls the distribution and content of instructional material used by all students, including those in private schools. Sections 22–15–7(B), –8(A)(C). Plaintiffs also do not assert that the instructional material itself is sectarian or denominational because the IML specifically prohibits the use of funds for such material. Section 22–15–9(C).

{11} Plaintiffs do argue, more generally, that the furnishing of free instructional material to private schools conflicts with Article XII, Section 3. In addition to relying upon Zellers, Plaintiffs rely upon cases from other states in which courts have held unconstitutional provisions that Plaintiffs state are similar to Article XII, Section 3, preventing the state's distribution of free textbooks to students in private schools. Rather than accepting the rationale of these cases, the district court determined that cases from other states that upheld free textbook distribution were more persuasive because the constitutional provisions of those states more closely...

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4 cases
  • Moses v. Ruszkowski
    • United States
    • New Mexico Supreme Court
    • December 13, 2018
    ...and granted summary judgment in favor of the Department. The Court of Appeals affirmed. Moses v. Skandera (Moses I ), 2015-NMCA-036, ¶ 2, 346 P.3d 396, rev'd , 2015-NMSC-036, ¶¶ 12, 41, 367 P.3d 838.{6} Petitioners sought review by this Court, raising five issues:(1) whether this Court's de......
  • Moses v. Skandera
    • United States
    • New Mexico Supreme Court
    • December 17, 2015
    ...Court of Appeals, which affirmed the district court's grant of summary judgment to Respondent. Moses v. Skandera, 2015–NMCA–036, ¶¶ 3, 54, 346 P.3d 396, cert. granted, 2015–NMCERT–001, 350 P.3d 91. We granted Petitioners' petition for writ of certiorari to consider the following issues: (1)......
  • State v. Archuleta
    • United States
    • Court of Appeals of New Mexico
    • October 27, 2014
  • State v. Jahi Child D.
    • United States
    • Court of Appeals of New Mexico
    • June 23, 2015
    ...the discussion of the more restrictive standard was dictum that has no controlling force. See Moses v. Skandera, 2015-NMCA-036, ¶ 19, 346 P.3d 396 (describing dictum as a statement that is unnecessary to the outcome of the case, even if the statement is emphatically or deliberately phrased)......

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