CATHY MOSES and PAUL F. WEINBAUM v. HANNA SKANDERA
No. S-1-SC-34974
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Filing Date: December 17, 2015
2015-NMSC-036
Opinion Number: 2015-NMSC-036
Filing Date: December 17, 2015
Docket No. S-1-SC-34974
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.
ORIGINAL PROCEEDING ON CERTIORARI
Sarah M. Singleton, District Judge
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.
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 However, our prior opinion filed on November 12, 2015 is withdrawn and the following is substituted in its place.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.
I. The Instructional Material Law is funded by appropriations
{3} The Instructional Material Law (IML),
{4} The Department is required to publish a “multiple list” of state-approved instructional materials.
{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.”
{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.
{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
{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 summary judgment to Respondent.
{11} Petitioners appealed to the 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. We granted Petitioners’ petition for writ of certiorari to consider the following issues: (1) whether this Court’s decision in Zellers constituted dicta; (2) whether the IML violates
{12} We conclude that the schoolbook loan program violates
III. The IML violates Article XII, Section 3 of the New Mexico Constitution
{13}
The schools, colleges, universities and other educational institutions provided for by this constitution shall forever remain under the exclusive control of the state, and 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.
(Emphasis added.)
{14} Whether the schoolbook loan program violates the New Mexico Constitution is a
{15} “[T]he rules of statutory construction apply equally to constitutional construction.” State v. Boyse, 2013-NMSC-024, ¶ 8, 303 P.3d 830 (internal quotation marks and citation omitted). “[W]e examine the plain language of the statute as well as the context in which it was promulgated, including the history of the statute and the object and purpose the Legislature sought to accomplish.” State v. Nick R., 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868 (internal quotation marks and citation omitted).
{16} The Court of Appeals interpreted
{17} We might agree with the Court of Appeals if the language of
{18} The Establishment Clause provides, in relevant part, that “Congress shall make no law respecting an establishment of religion . . . .”
The schools, colleges, universities and other educational institutions provided for by this constitution shall forever remain under the exclusive control of the state, and 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.
(Emphasis added.) The plain language of
{20} By the middle of the nineteenth century, the Catholic immigrant population rose significantly. Viteritti, supra, at 669. The influx of Catholic immigrants created a demand for Catholic education, and consequently Catholics and other minority religionists challenged the Protestant influence in the common schools. Id. at 667-68; Steven K. Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38, 44 (1992). By the 1870s, Catholic church leaders began to lobby their state legislatures for public funds to develop their own educational system. Viteritti, supra, at 668; Green, supra, at 44. This rise in Catholic influence created an obvious tension between the Protestant majority and the mostly Catholic minority on the issue of education, see Viteritti, supra, at 670-72, because the Protestant-run “common school was designed to function as an instrument for the acculturation of immigrant populations, rendering them good productive citizens in the image of the ruling majority.” Id. at 668.
{21} In response, “[o]pposition to aid to ‘sectarian’ schools acquired prominence in the 1870’s . . . .” Mitchell v. Helms, 530 U.S. 793, 828 (2000). “[I]t was an open secret that ‘sectarian’ was code for ‘Catholic.’ ” Id. Common school leaders successfully lobbied their state legislatures to adopt amendments prohibiting the use of state funds to support sectarian schools by the mid-to-late nineteenth century. See, e.g.,
{22} Congressman James G. Blaine of Maine agreed to sponsor an amendment to the First Amendment that fulfilled President Grant’s request. See id. at 670-71. Congressman Blaine’s proposed constitutional amendment read:
No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects and denominations.
Green, supra, at 38 n.2 (quoting 4 Cong. Rec. 5453 (1876) (quotation marks omitted)). Congressman Blaine believed that his proposed constitutional amendment would correct a “constitutional defect” because at the time, the Establishment Clause had not been interpreted to apply to the states under the Fourteenth Amendment. Viteritti, supra, at 671 n.66 (citing Permoli v. Municipality No. 1 of New Orleans, 44 U.S. (3 How.) 589, 609 (1845) (“The Constitution makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws . . . .”).
{23} Despite the fact that Congressman Blaine’s proposed amendment failed to pass in the United States Senate, several states amended their constitutions to include a ban on funding of sectarian education. Viteritti, supra, at 672. “By century’s end [congressional] leaders had come to understand that federal aid could be used as a wedge for manipulating public policy. . . . Particularly vulnerable to the Republican agenda were those new territories seeking statehood.” Id. at 672-73. “As a matter of course, [new territories seeking statehood] would be required to incorporate Blaine-like provisions into their new constitutions in order to receive congressional approval.” Id. at 673.
{24} Congress granted New Mexico statehood on the explicit condition that it adopt a similar “Blaine” provision in the New Mexico Constitution. See Enabling Act for New Mexico of June 20, 1910, 36 Stat. 557, ch. 310, § 8 (Enabling Act).2 In the Enabling Act, “Congress set forth the terms by which New Mexico would be admitted as a state.” Forest Guardians v. Powell, 2001-NMCA-028, ¶ 6, 130 N.M. 368, 24 P.3d 803. In an election held
[t]he schools, colleges and universities provided for in this act shall forever remain under the exclusive control of the said state, and no part of the proceeds arising from the sale or disposal of any lands granted herein for educational purposes shall be used for the support of any sectarian or denominational school, college or university.
{25} Sections 6 through 9 of the Enabling Act pertain to specified public lands that were granted to New Mexico to be held in trust “for the support of common schools.” Enabling Act § 6. To the extent that lands “are mineral, or have been sold, reserved or otherwise appropriated or reserved by or under the authority of any act of congress,” they are to be treated as all other public lands specified under Sections 6 through 9 of the Enabling Act. Enabling Act § 6.
Congress contemplated that any change . . . to the use of the proceeds of the lands granted to the state should be effectuated by amendment to the Constitution, and . . . any change in the use and application of the proceeds of these land grants may . . . be done by way of a constitutional amendment.
Lyons, 2011-NMSC-004, ¶ 4 (first and third omissions in original) (internal quotation marks and citation omitted).
{26} Grants of land were made to New Mexico specifically for, among other things, “university purposes, . . . schools and asylums for the deaf, dumb and the blind, . . . normal schools, . . . agricultural and mechanical colleges, . . . school of mines, [and] military institutes.” Enabling Act § 7. Lands granted to New Mexico and any proceeds derived from them are to be held in trust. Enabling Act § 10, ¶ 1. If the lands or money so derived are used for something other than the named purposes, it is a breach of the Enabling Act. Enabling Act § 10, ¶ 2. The Enabling Act “is binding and enforceable and the legislature is without power to divert the fund for another purpose than that expressed.” State ex rel. Interstate Stream Comm’n v. Reynolds, 1963-NMSC-023, ¶ 22, 71 N.M. 389, 378 P.2d 622.
{27} Specifically relevant to our inquiry is Section 8 of the Enabling Act, which may be characterized as a Blaine provision because of the time of its adoption and because it precludes the use of public funds for the support of sectarian or denominational schools.
[T]he schools, colleges, and universities provided for in this act shall forever remain under the exclusive control of the said state, and no part of the proceeds arising from the sale or disposal of any lands granted herein for educational purposes shall be used for the support of any sectarian or denominational school, college or university.
Id. This language is nearly identical to that of
{28} The MLLA appropriates funds to New Mexico “to be used by such State and its subdivisions, as the legislature of the State may direct . . . , for (i) planning, (ii) construction and maintenance of public facilities, and (iii) provision of public service.”
{29} Intervenors contend that the MLLA preempts any state constitutional restriction on the Legislature’s discretion with respect to MLLA funds as long as the Legislature appropriates the funds consistent with the broad purposes of the MLLA. In support of their argument, Intervenors cite to State ex rel. Sego v. Kirkpatrick, 1974-NMSC-059, 86 N.M. 359, 524 P.2d 975 and Lawrence County v. Lead-Deadwood School District No. 40-1, 469 U.S. 256 (1985). These cases are inapposite. The Sego Court held that the Legislature does
{30} The Court of Appeals held that the direct recipients of the IML financial program are the parents of the children, and therefore the benefit to private schools is not direct enough to violate
{31} Instead, the Constitutional Convention proposed a constitutional amendment that would address the crux of the question: may public funds be used to provide free textbooks to all students, including those who attend private schools? See id. at 45. The constitutional amendment submitted to the voters for adoption read: “The legislature shall provide for a
{32} The history of Congressman Blaine’s attempt to amend the United States Constitution coupled with the New Mexico Enabling Act demonstrates why
Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever . . . .
{33} In California Teachers Ass’n, the California Supreme Court was critical of the “child benefit theory” in light of its state constitutional provision because the “doctrine may be used to justify any type of aid to sectarian schools[;] . . . practically every proper expenditure for school purposes aids the child.” 632 P.2d at 957, 960 (internal quotation marks and citation omitted). The California Supreme Court reasoned that “the application of the ‘child benefit’ theory in this circumstance ‘ignores substance for form, reality for rhetoric, and would lead to total circumvention of the principles of our Constitution.’ ” Id. at 963 (emphasis added) (citation omitted). The California Supreme Court noted that the broad language of Article
{34} In Gaffney v. State Department of Education, 220 N.W.2d 550 (Neb. 1974), the Nebraska Supreme Court addressed the constitutionality of a textbook lending program under
Neither the state Legislature nor any county, city or other public corporation, shall ever make any appropriation from any public fund, or grant any public land in aid of any sectarian or denominational school or college, or any educational institution which is not exclusively owned and controlled by the state or a governmental subdivision thereof.
220 N.W.2d at 553 (quoting
{35} The Supreme Courts of Oregon, Massachusetts, and Missouri interpreted similar Blaine-like state constitutional provisions and determined that even indirect aid to the sectarian, denominational, or private schools violates the constitutional provision. See Dickman v. Sch. Dist. No. 62C, Or. City, of Clackamas Cty., 366 P.2d 533, 543 (Or. 1961) (en banc) (holding that “the aid is extended to the pupil only as a member of the school” the pupil attends, and although the pupil may share in the indirect benefit, “such aid is an asset to” the sectarian or private school); see also Bloom v. Sch. Comm. of Springfield, 379 N.E.2d 578, 580 (Mass. 1978) (same); Paster v. Tussey, 512 S.W.2d 97, 104 (Mo. 1974) (en banc) (same).
{36} South Dakota and Hawaii have reached similar conclusions under their state constitutions. This is important because like New Mexico, these states were required to adopt Blaine-like amendments into their respective state constitutions for their admission into the Union. For example, in In re Certification of a Question of Law from the United States District Court, District of South Dakota, Southern Division, 372 N.W.2d 113 (S.D. 1985), the South Dakota Supreme Court addressed a textbook lending program in which the defendants raised arguments similar to those raised by Respondent and Intervenors in this case. See generally Id.. The South Dakota Supreme Court noted that it was charged
{37} In addition, Hawaii, which was the last state admitted into the Union, has a constitutional provision similar to New Mexico’s.
{38} The Spears Court concluded that it was important to understand that, unlike the Establishment Clause of the United States Constitution, what was then
[(1)] the bus subsidy buil[t] up, strengthen[ed] and ma[d]e successful the nonpublic schools[; (2)] the subsidy induce[d] attendance at nonpublic schools, where the school children are exposed to a curriculum that, in many cases, if not generally, promotes the special interests and biases of the nonpublic group that controls the school[; and (3)] to the extent that the State [paid] out funds to carriers owned by the nonpublic schools or agents thereof, the State [gave] tangible support or benefit to such schools.
Id. (internal quotation marks omitted). The Spears Court ultimately held that the bus subsidy violated
{40} It is clear that private schools in New Mexico have control of what instructional materials will be purchased with their allocation of instructional material funds. The fact that students who attend private schools, just like students who attend public schools, are only loaned these instructional materials is not material to the analysis. Private schools benefit because they do not have to buy instructional materials with money they obtain by tuition or donations and they can divert such money to other uses in their schools. Consistent with the rules of statutory construction and the majority of jurisdictions interpreting similar state constitutional provisions, the IML violates
IV. Conclusion
{41} We reverse the Court of Appeals and the district court and determine that the IML violates
{42} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice, Retired
Sitting by designation
CHARLES W. DANIELS, Justice