Moses v. Skandera

• Decision Date: 17 December 2015
• Docket Number: No. S–1–SC–34974.,S–1–SC–34974.
• Parties: Cathy MOSES and Paul F. Weinbaum, Plaintiffs–Petitioners, v. Hanna SKANDERA, Designate Secretary of Education, New Mexico Public Education Department, Defendant–Respondent, and Albuquerque Academy, et al., Defendants/Intervenors–Respondents.
• Court: New Mexico Supreme Court

367 P.3d 838

Cathy MOSES and Paul F. Weinbaum, Plaintiffs–Petitioners,

v. Hanna SKANDERA, Designate Secretary of Education, New Mexico Public Education Department, Defendant–Respondent,andAlbuquerque Academy, et al., Defendants/Intervenors–Respondents.

No. S–1–SC–34974.

Supreme Court of New Mexico.

Dec. 17, 2015.

Graeser & McQueen, LLC, Christopher L. Graeser, Santa Fe, NM, Frank Susman, Santa Fe, NM, for Petitioners.

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

Modrall, Sperling, Roehl, Harris & Sisk, P.A., R.E. Thompson, Emil J. Kiehne, Jennifer G. Anderson, Sarah M. Stevenson, Albuquerque, NM, Becket Fund for Religious Liberty, Eric S. Baxter, Washington, DC, for Intervenors–Respondents.

OPINION

CHÁVEZ

, Justice.

{1} Intervenors' motion for rehearing is denied. However, our prior opinion filed on November 12, 2015 is withdrawn and the following is substituted in its place.

{2} Since the adoption of the New Mexico Constitution on January 21, 1911, New Mexico has had a constitutional responsibility to provide a free public education for all children of school age. N.M. Const. art. XII, § 1

. However, "no part of the proceeds arising from the sale or disposal of any lands granted to the state by congress, or any other funds appropriated, levied or collected for educational purposes, shall be used for the support of any sectarian, denominational or private school, college or university." N.M. Const. art. XII, § 3 (emphasis added). The New Mexico Department of Public Education's (Department) Instructional Material Bureau purchases non-religious instructional materials selected by public or private schools, with funds appropriated by the Legislature and earmarked for the schools, and lends these materials to qualified students who attend public or private schools. NMSA 1978, § 22–15–7 (2010) ; see also NMSA 1978, § 22–8–34 (2001). The question we address in this case is whether the provision of books to students who attend private schools violates Article XII, Section 3. We conclude that the New Mexico Constitutional Convention was not willing to navigate the unclear line between secular and sectarian education, or the unclear line between direct and indirect support to other than public schools. Indeed, in 1969 the voters rejected a proposed constitutional amendment that would have required New Mexico to provide free textbooks to all New Mexico school children. See Proposed New Mexico Constitution (as adopted by the Constitutional Convention of 1969 ) 45 (October 20, 1969). We hold that the plain meaning and history of Article XII, Section 3 forbids the provision of books for use by students attending private schools, whether such schools are secular or sectarian.

I. The Instructional Material Law is funded by appropriations

{3} The Instructional Material Law (IML), NMSA 1978, §§ 22–15–1

to –14 (1967, as amended through 2011), grants the Department's Instructional Material Bureau statutory authority to lend approved instructional materials¹ to "[a]ny qualified student ... attending a public school, a state institution or a private school approved by the department in any grade from first through the twelfth grade of instruction...." Section 22–15–7(A)

(emphasis added). "Instructional material shall be distributed to school districts, state institutions and private schools as agents for the benefit of students entitled to the free use of the instructional material." Section 22–15–7(B) (emphasis added). In turn, "[a]ny school district, state institution or private school as agent receiving instructional material pursuant to the Instructional Material Law is responsible for distribution of the instructional material for use by eligible students and for the safekeeping of the instructional material." Section 22–15–7(C) (emphasis added). Students or their parents are "responsible for the loss, damage or destruction of instructional material while the instructional material is in the possession of the student." Section 22–15–10(B).

{4} The Department is required to publish a "multiple list" of state-approved instructional materials. Section 22–15–8(A), (B)

; § 22–15–2(D) (" ‘[M]ultiple list’ means a written list of those instructional materials approved by the department."). Using the multiple list of state-approved instructional materials, "each school district, state institution or private school as agent may select instructional material for the use of its students...." Section 22–15–8(B). "At least ten percent of instructional material on the multiple list concerning language arts and social studies shall contain material that is relevant to the cultures, languages, history and experiences of multi-ethnic students." Section 22–15–8(A). Moreover, "[t]he Department shall ensure that parents and other community members are involved in the adoption process at the state level." Id.

{5} The IML is funded through a non-reverting "instructional material fund" established by the State Treasurer "consist[ing] of appropriations, gifts, grants, donations and any other money credited to the fund." Section 22–15–5(A)

. In 1931, the Legislature enacted the State School Building, Text Book and Rural Aid Fund to purchase instructional materials with unappropriated federal funds obtained through the Mineral Lands Leasing Act (MLLA), 30 U.S.C. §§ 181 to 287 (1920, as amended through 2012). N.M. Laws 1931, ch. 138, § 2 ("There is hereby appropriated for the purposes of this fund, annually, all of the balance, not otherwise appropriated, in the [MLLA] Fund...."). Today the Department's Instructional Material Bureau continues to purchase instructional materials for New Mexico students using federal MLLA funds. See § 22–8–34(A) ("Except for an annual appropriation to the instructional material fund and to the bureau of geology and mineral resources of the New Mexico institute of mining and technology ... all other money received by the state pursuant to the provisions of the federal [MLLA], shall be distributed to the public school fund." (citation omitted)).

{6} Each public and private school is allocated a percentage of money available in the IML fund based on the number of students enrolled in their school. Section 22–15–9(A)

. "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) (emphasis added). Such instructional material purchases must be identified and purchased through the Department's in-state depository. Section 22–15–9(C), (E) ; see also § 22–15–4(D). "Any balance remaining in an instructional material account of a private school at the end of the fiscal year shall remain available for reimbursement by the department for instructional material purchases in subsequent years." Section 22–15–9(F). The Department's Instructional Material Bureau has the authority to "withdraw or withhold the privilege of participating in the free use of instructional material in case of any violation of or noncompliance with the provisions of the Instructional Material Law or any rules adopted pursuant to that law." Section 22–15–4(C)

.

{7} In summary, the Legislature appropriates instructional materials funds and private schools are allocated a percentage of the funds based on the number of students enrolled in their schools. Private schools select instructional materials from a multiple list, but they may spend up to 50 percent of their instructional materials funds on items that are not on the multiple list, as long as the material is not religious in content. Any money remaining in the private schools instructional material fund may be carried over to subsequent years. Once the materials are purchased, the materials are loaned to the students. Hereafter in this opinion we will refer to this process as a "schoolbook loan program" for ease of reference.

II. Procedural history

{8} Plaintiffs–Petitioners Cathy Moses and Paul F. Weinbaum (Petitioners) are New Mexico residents and have been taxpayers for at least the past five years. Petitioners currently have one or more children enrolled in elementary and/or secondary public schools in New Mexico. As New Mexico residents and taxpayers, Petitioners assert that the IML violates their constitutional rights because it supposedly forces them to "support[ ] and aid[ ] the religious dictates of others with whom they disagree"; appropriates or donates public funds to private parties; and supports "sectarian, denominational or private school [s]."

{9} Petitioners filed a verified complaint for declaratory judgment in the district court against Defendant–Respondent Hanna Skandera (Respondent), Secretary of the Department, seeking a declaration that the State issuing instructional materials to students attending private schools is unconstitutional because doing so supports sectarian, denominational, or private schools in violation of New Mexico Constitution Article XII, Section 3

; forces them as taxpayers to support the religious dictates of others in violation of New Mexico Constitution Article II, Section 11 ; and appropriates or donates public funds to private parties in violation of New Mexico Constitution Article IX, Section 14. Petitioners also relied on Zellers v. Huff, 1951–NMSC–072, 55 N.M. 501, 236 P.2d 949 to support their allegation that the schoolbook loan program is unconstitutional.

{10} Petitioners filed a motion for summary judgment, and Respondent and Albuquerque Academy, et al. (Intervenors) each filed a memorandum in opposition. The district court ruled that Zellers did not control and the provisions of the IML challenged by Petitioners did not violate the New Mexico Constitution. The district court then entered its order denying Petitioners' motion for summary judgment and granted...