Niehaus v. Huppenthal

• Decision Date: 01 October 2013
• Docket Number: No. 1 CA–CV 12–0242.,1 CA–CV 12–0242.
• Citation: 310 P.3d 983,670 Ariz. Adv. Rep. 24,233 Ariz. 195
• Parties: Sharon NIEHAUS; Arizona School Boards Association; Arizona Education Association; and Arizona Association of School Business Officials, Plaintiffs/Appellants, v. John HUPPENTHAL, in his capacity as Arizona Superintendent of Public Instruction, Defendant/Appellee. Goldwater Institute; Andrea Weck Robertson; Victoria Zicafoose; and Crystal Fox, Intervenors/Appellees.
• Court: Arizona Court of Appeals

233 Ariz. 195

310 P.3d 983

670 Ariz. Adv. Rep. 24

Sharon NIEHAUS; Arizona School Boards Association; Arizona Education Association; and Arizona Association of School Business Officials, Plaintiffs/Appellants,

v. John HUPPENTHAL, in his capacity as Arizona Superintendent of Public Instruction, Defendant/Appellee.Goldwater Institute; Andrea Weck Robertson; Victoria Zicafoose; and Crystal Fox, Intervenors/Appellees.

No. 1 CA–CV 12–0242.

Court of Appeals of Arizona, Division 1, Department D.

Oct. 1, 2013.

LaSota & Peters, PLC by Donald M. Peters, Arizona Center for Law in the Public Interest by Timothy M. Hogan, Phoenix, Attorneys for Appellants.

Thomas C. Horne, Arizona Attorney General, by Kevin D. Ray, Jinju Park, Jordan T. Ellel, Phoenix, Attorneys for Appellee.

Scharf–Norton Center for Constitutional Litigation by Clint Bolick, Carrie Ann Sitren, Taylor C. Earl, Phoenix, Attorneys for Intervenor/Appellee Goldwater Institute.

Institute for Justice by Timothy D. Keller, Paul V. Avelar, Tempe, Attorneys for Parent Intervenors/Appellees.

DeConcini McDonald Yetwin & Lacy, P.C. by Denise M. Bainton, Tucson, National School Boards Association by Francisco M. Negrón, Jr., Virginia, Attorneys for Amicus Curiae.

OPINION

THOMPSON, Judge.

¶ 1 Appellants Sharon Niehaus and other interested organizations (collectively, Niehaus) appeal the trial court's judgment denying their request for injunctive relief and granting judgment to appellee John Huppenthal (Huppenthal), in his capacity as Arizona State Superintendent of Public Instruction. Niehaus challenges the constitutionality of the Arizona Empowerment Scholarship Accounts program (ESA). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 In 2011, the Arizona Legislature passed Senate Bill 1553, establishing the ESA, codified at Arizona Revised Statutes (A.R.S.) sections 15–2401 through –2404, to provide education scholarships to students with disabilities. The purpose of the ESA is “to provide options for the education of students in this state.” A.R.S. § 15–2402(A). To qualify, a student must have a recognized disability, and have either attended a public school in the previous year or been the recipient of a scholarship from either a school tuition organization or the ESA. SeeA.R.S. § 15–2401(5). A qualifying student can receive a scholarship equal to ninety percent of the base support level that otherwise would be provided for state education of the student. A.R.S. § 15–2402(C). The parent of a scholarship student must agree to provide an education for the student in at least “reading, grammar, mathematics, social studies and science,” and agree to “[n]ot enroll the qualified student in a school district or charter school and release the school district from all obligations to educate the qualified student.” A.R.S. § 15–2402(1), (2). The parent may then apply the scholarship funds to one or more of eleven permissible uses:

(a) Tuition or fees at a qualified school.

(b) Textbooks required by a qualified school.

(c) Educational therapies or services for the qualified student from a licensed or accredited practitioner or provider.

(d) Tutoring services provided by a tutor accredited by a state, regional or national accrediting organization.

(e) Curriculum.

(f) Tuition or fees for a nonpublic online learning program.

(g) Fees for a nationally standardized norm-referenced achievement test, advanced placement examinations or any exams related to college or university admission.

(h) Contributions to a qualified tuition program established pursuant to 11 United States Code section 529.

(i) Tuition or fees at an eligible postsecondary institution.

(j) Textbooks required by an eligible postsecondary institution.

(k) Fees for management of the empowerment scholarship account by firms selected by the department.

A.R.S. § 15–2402(B)(4)(a)–(k). A “qualified school” is defined as “a nongovernmental primary or secondary school or a preschool for handicapped students that is located in this state and that does not discriminate on the basis of race, color or national origin.” A.R.S. § 15–2401(4).

¶ 3 Niehaus filed a complaint in Maricopa County Superior Court challenging the constitutionality of the ESA and seeking to enjoin Huppenthal from implementing its provisions. She argued the ESA violated Article 9, Section 10 of the Arizona Constitution (the Aid Clause), and Article 2, Section 12 of the Arizona Constitution (the Religion Clause), and that the ESA is invalid because it conditions the availability of a public benefit on a waiver of constitutional rights. She also filed an application for a preliminary injunction. After the trial court allowed the Goldwater Institute and other interested individuals (collectively, Intervenors) to intervene, they successfully moved to dismiss Niehaus's claim that the ESA places an unconstitutional condition on receipt of a government benefit. The trial court subsequently heard oral argument on the merits, denied Niehaus's request for injunctive relief, and granted judgment in favor of Huppenthal and Intervenors on Niehaus's complaint, finding the ESA did not violate the provisions of the Arizona Constitution cited by Niehaus. The court found the ESA did not violate the Aid Clause because of the “parental choice among education options,” explaining that the “monies are earmarked for a student's educational needs as a parent may deem fit—not endorsed directly to a private institution in an all or nothing fashion.” It also found the Religion Clause was not violated because the state “is not directing where monies are to go,” so there “is no purpose by the State to directly benefit any religious school.”

¶ 4 Niehaus timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. § 12–2101(A)(1) and (5)(b) (Supp.2012).

STANDARD OF REVIEW

¶ 5 Niehaus argues on appeal that the ESA violates the Aid and Religion Clauses of the Arizona Constitution, and that it unconstitutionally conditions a benefit on the waiver of a constitutional right. We review questions of statutory interpretation and constitutional law de novo. State ex rel. Thomas v. Klein, 214 Ariz. 205, 207, ¶ 5, 150 P.3d 778, 780 (App.2007). We presume that a statute is constitutional. Planned Parenthood Ariz., Inc. v. Am. Ass'n of Pro–Life Obstetricians & Gynecologists, 227 Ariz. 262, 268, ¶ 9, 257 P.3d 181, 187 (App.2011). We resolve any doubts in favor of constitutionality. Klein, 214 Ariz. at 207, ¶ 5, 150 P.3d at 780. The party challenging the validity of the statute bears the burden of proving beyond a reasonable doubt that the legislation is unconstitutional. Chevron Chem. Co. v. Superior Court, 131 Ariz. 431, 438, 641 P.2d 1275, 1282 (1982) (courts “will not declare an act of the legislature unconstitutional unless we are satisfied beyond a reasonable doubt that the act is in conflict with the federal or state constitutions”); State v. Kaiser, 204 Ariz. 514, 517, ¶ 8, 65 P.3d 463, 466 (App.2003).

DISCUSSION

Religion Clause

¶ 6 In Cain v. Home (Cain I ), 218 Ariz. 301, 305–06, ¶ 8, 183 P.3d 1269, 1273–74 (App.2008), vacated by Cain v. Home ( Cain II ), 220 Ariz. 77, 202 P.3d 1178 (2009), this court distinguished Arizona's case law from a Washington case relied on by Cain, Witters v. State Commission for the Blind, 112 Wash.2d 363, 771 P.2d 1119 (1989), and held that the Arizona Supreme Court's interpretation of the Religion Clause was “virtually indistinguishable from the United States Supreme Court's interpretation of the federal Establishment Clause.” To support this holding, we cited Kotterman v. Killian, 193 Ariz. 273, 287, ¶ 46, 972 P.2d 606, 620 (1999), and Community Council v. Jordan, 102 Ariz. 448, 451–52, 432 P.2d 460, 463–64 (1967). In Cain II, the Arizona Supreme Court noted our analysis of the Religion Clause, but did not indicate whether our conclusion was correct. 220 Ariz. at 80–81, 84 n. 4, ¶¶ 11–12, 29, 202 P.3d at 1181–82, 1185 n. 4. Instead, the supreme court focused on distinguishing the Religion and Aid Clauses. Id. at 81–82, ¶¶ 15–19, 202 P.3d at 1182–83. Then, when deciding the voucher program in that case violated the Aid Clause, the supreme court did not address the Religion Clause argument. Id. at 84 n. 4, ¶ 29, 202 P.3d at 1185 n. 4. Thus, we re-examine the case law interpreting the Religion Clause of the Arizona Constitution.

¶ 7 Article 2, Section 12, of the Arizona Constitution provides that “[n]o public money ... shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.” Niehaus relies on Witters to show that a statute may be upheld under the Establishment Clause while being invalidated under a stricter state constitution, pointing out that Washington's Religion Clause is virtually identical to Arizona's. While we acknowledge this point, we do not find Witters particularly helpful to our analysis here. Witters applied for vocational rehabilitation funds from a state commission for the blind. 771 P.2d at 1120. He planned to use the funds in undergraduate work for religious instruction to pursue a career as a pastor. Id. His curriculum included Old and New Testament studies and church administration. Id. The Washington Supreme Court found that Witters was “asking the State to pay for a religious course of study at a religious school, with a religious career as his goal. This falls precisely within the clear language of the state constitutional prohibition against applying public moneys to any religious instruction.” Id. at 1121.

¶ 8 The ESA does not bear any similarity to the circumstances in Witters. The parents of a qualified student under the ESA must provide an education in reading, grammar, mathematics, social studies, and science. Whether that is done at a private secular or sectarian school is a matter of parental choice. The ESA students are pursuing a basic secondary education consistent with...