Niehaus v. Huppenthal
Just two years after the Arizona Supreme Court struck down as unconstitutional the voucher program in Cain v. Horne, the Arizona legislature did it again: enacted an unconstitutional voucher program supposedly tailored to help disabled children, but really intended to ultimately lead to the defunding of public schools.
In September, the Center along with co-counsel Peters & LaSota, filed an action challenging this unlawful use of public funds. The case, Niehaus v. Huppenthal, asserts that this latest legislation violates Article 9, Section 10, of the Arizona Constitution, which has been referred to by the courts as the Aid Clause. In Cain v. Horne, the Arizona Supreme Court ruled that the earlier voucher statutes violated the Aid Clause because they authorized the indirect transfer of public funds to private schools. Senate Bill 1553 does the same thing. The enactment authorizes scholarships only for pupils who attend private schools. The enactment permits the scholarship funds to be used for some purposes other than paying tuition at the pupil’s private school. Payment of tuition is inevitably what the scholarship funds would primarily be used for. Senate Bill 1553 is therefore invalid in light of the decision in Cain v. Horne.
The lawsuit also asserts that Senate Bill 1553 violates Article 2, Section 12, of the Arizona Constitution. That provision prohibits public money from being appropriated for or applied to any religious instruction. Because the scholarship funds may be used to pay tuition at religious schools and those schools do not need not alter their practices to receive the funds, the money will be both appropriated for and applied to religious instruction in violation of the Arizona Constitution. Plaintiffs have moved for a preliminary injunction, and a hearing on their Motion was held on November 28, 2011 before Judge Maria del Mar Verdin.
On Friday, January 27, 2012, Judge Verdin denied the motion. A copy of the order is below. The plaintiff filed a Special Action with the Arizona Court of Appeals on February 24, 2012;however, on February 28, 2012, the Court refused to accept jurisdiction. The Center filed a Notice of Appeal and the Court of Appeals heard oral argument on February 13, 2013. On October 1, 2013, the Court of Appeals issued its decision (below) affirming the trial court and upholding the program. The plaintiffs are seeking review by the Arizona Supreme Court.