DUNCAN VS. STATE, OFFICE OF THE STATE TREASURER

2016 NV 73

Opinion

132 Nev., Advance Opinion 73 IN THE SUPREME COURT OF THE STATE OF NEVADA

DAN SCHWARTZ, IN HIS OFFICIAL No. 69611 CAPACITY AS TREASURER OF THE STATE OF NEVADA, Appellant, vs.

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HELLEN QUAN LOPEZ, SEP 29 2096 INDIVIDUALLY AND ON BEHALF OF RACIE K. LINDEMAN HER MINOR CHILD, C.Q.; MICHELLE CIANTF. WREIVIf,,C,OUR BY

GORELOW, INDIVIDUALLY AND ON CHIEF D'EnTY CLERK BEHALF OF HER MINOR CHILDREN, A.G. AND H.G.; ELECTRA SKRYZDLEWSKI, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, L.M., JENNIFER CARR, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILDREN, W.C., A.C., AND E.C., LINDA JOHNSON, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, K.J.; AND SARAH SOLOMON AND BRIAN SOLOMON, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN, D.S. AND K.S., Respondents.

RUBY DUNCAN, AN INDIVIDUAL; RABBI MEL HECHT, AN INDIVIDUAL; HOWARD WATTS, III, AN INDIVIDUAL; LEORA OLIVAS, AN INDIVIDUAL; AND ADAM BERGER, AN INDIVIDUAL, Appellants, vs. THE STATE OF NEVADA OFFICE OF THE STATE TREASURER; THE STATE OF NEVADA DEPARTMENT OF EDUCATION; DAN SCHWARTZ, NEVADA STATE TREASURER, IN HIS

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OFFICIAL CAPACITY; STEVE CANAVERO, INTERIM SUPERINTENDENT OF PUBLIC INSTRUCTION, IN HIS OFFICIAL CAPACITY; AIMEE HAIRR; AURORA ESPINOZA; ELIZABETH ROBBINS; LARA ALLEN; JEFFREY SMITH; AND TRINA SMITH, Respondents.

Appeals from a district court order granting a preliminary injunction (Docket No. 69611) and from a district court order dismissing a complaint (Docket No. 70648). First Judicial District Court, Carson City; James E. Wilson, Judge (Docket No. 69611), and Eighth Judicial District Court, Clark County; Eric Johnson, Judge (Docket No. 70648).

Affirmed in part, reversed in part, and remanded (Docket No.

69611); affirmed in part, reversed in part, and remanded (Docket No. 70648). 5M;e:4401,- Gym raj Ke.+0-41 Ihi rLQL, gotkr6ei li)e.4)11 le„1'i-xlcov6iej 7 Adam Paul Laxalt, Attorney General, Lawrence VanDyke, Deputy Solicitor General, and Jordan T. Smith, Assistant Solicitor eneral, Carson City; Bancroft PLLC and Paul D. Clement, Washington, D.C., for Dan Schwartz, Steve Canavero, the Nevada Office of the Treasurer, and the Nevada Department of Education.

Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, and Don Springmeyer, Justin C. Jones, and Bradley S. Schrager, Las Vegas; Munger, Tolles & Olson LLP and Tamerlin J. Godley, Thomas Paul Clancy, and Samuel T. Boyd, Los Angeles, California; Education Law Center and David G. Sciarra and Amanda Morgan, Newark, New Jersey, for Jennifer Carr, Michelle Gorelow, Linda Johnson, Hellen Quan Lopez, Electra Skryzdlewski, Brian Solomon, and Sarah Solomon.

3

American Civil Liberties Union of Nevada and Amy M. Rose, Las Vegas;

Americans United for Separation of Church and State and Rich ard B.

Katskee and Gregory M. Lipper, Washington, D.C.; American Civil

Liberties Union Foundation and Daniel Mach and Heather L.

Weaver,

Washington, D.C.; Covington & Burling LLP and Nitin Subh edar and

Samuel Jacob Edwards, San Francisco, California, for Adam Berger, Ruby Duncan, Mel Hecht, Leora Olivas, and Howard

Watts, III.

Kolesar & Leatham, Chtd., and Matthew T. Dushoff and Lisa J. Zastrow,

Las Vegas; Institute for Justice and Timothy D. Keller and Keith E. Diggs,

Tempe, Arizona, for Lara Allen, Aurora Espinoza, Aimee Hairr, Elizabeth Robb ins, Jeffrey

Smith, and Trina Smith.

Ashcraft & Barr LLP and Jeffrey F. Barr, Las Vegas; Eric C.

Rassbach,

Diana M. Verm, and Lori H. Windham, Washington, D.C., for Amicus Curiae The Becket Fund for Religious Liberty.

Muehlbauer Law Office, Ltd., and Andrew R. Muehlbauer, Las Vegas;

Wisconsin Institute for Law & Liberty and Richard M. Esenberg and CJ

Szafir, Milwaukee, Wisconsin, for Amici Curiae The American Federation for Children, Hisp anics for

School Choice, School Choice Wisconsin, Dr. Patrick J.

Wolf, and

Wisconsin Institute for Law & Liberty.

Sande Law Group and John P. Sande, IV, and Victor Salcido, Las Vegas,

for Amicus Curiae Friedman Foundation for Educational Choice.

Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno, for Amid i Curiae National School Boards Association and Nevada

Association of School Boards.

Leon Greenberg Professional Corporation and Leon M. Gree nberg and

Julie Underwood, Las Vegas, for Amici Curiae Association of Wisconsin School Administrators , Horace

Mann League, Network for Public Education, Wisconsin Allia nce for

Excellent Schools, and Wisconsin Association of Scho ol District

Administrators.

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Dyer, Lawrence, Penrose, Flaherty, Donaldson & Prunty and Francis C. Flaherty and Casey A. Gillham, Carson City; National Education Association and Kristen L. Hollar, Washington, D.C., for Amici Curiae National Educational Association and Nevada State Education Association.

Reisman Sorokac and Joshua H. Reisman and Heidi J. Parry Stern, Las Vegas, for Amici Curiae Baptist Joint Committee for Religious Liberty and Hindu American Foundation.

Marquis Aurbach Coffing and Micah S. Echols, Las Vegas; Wilmer Cutler Pickering Hale and Dorr LLP and Todd Zubler, Daniel Hartman, and Kevin Gallagher, Washington, D.C., for Amicus Curiae Foundation for Excellence in Education.

Woodburn & Wedge and W. Chris Wicker, Reno, for Amici Curiae Mexican-American Legal Defense and Educational Fund, Las Vegas NAACP, and Southern Poverty Law Center.

BEFORE THE COURT EN BANC.

OPINION

By the Court, HARDESTY, J.:

In 2015, the Nevada Legislature passed the Education Savings Account (ESA) program, which allows public funds to be transferred from the State Distributive School Account into private education savings accounts maintained for the benefit of school-aged children to pay for private schooling, tutoring, and other non-public educational services and expenses. Two separate complaints were filed challenging the ESA program as violating several provisions of the Education Article in the Nevada Constitution. In one case, the district

5

court rejected all of the constitutional claims and dismissed the complaint.

In the other case, the district court found that one of the constitutional

challenges had merit and granted a preliminary injunction . These appeals

were brought, and because they share common legal ques tions as to the

constitutionality of the ESA program, we resolve them together in this

opinion.

We are asked to decide whether the ESA program is

constitutional under Nevada Constitution Article 11, Secti on 2 (requiring

a uniform system of common schools), Section 6 (obligatin g the Legislature

to appropriate funds to operate the public schools befo re any other

appropriation is enacted for the biennium), and Section 10 (prohibiting the

use of public funds for a sectarian purpose). We must emph asize that the

merit and efficacy of the ESA program is not befo re us, for those considerations involve public policy choices left to the soun d wisdom and

discretion of our state Legislature. But it is the judi ciary's role to

determine the meaning of the Constitution and to upho ld it against contrary legislation. Thus, the scope of our inquiry is whet her the ESA

program complies with these constitutional provisions.

For the reasons set forth in this opinion, we conclude that

Article 11, Section 1 does not limit the Legislature's discretion to

encourage other methods of education. Based on that reaso ning , the ESA

program is not contrary to the Legislature's duty under Artic le 11, Section

2 to provide for a uniform system of common schools. We also conclude

that funds placed in education savings accounts under SB 302 belong to

the parents and are not "public funds" subject to Article 11, Section 10.

The issue remaining relates to the funding of the education savings accounts. Based on the State Treasurer's concessio n that SB 302

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does not operate as an appropriation bill, and that nothing in the legislative measure creating the State Distributive School Account fundin

g

for public education provides an appropriation for education savings accounts, we must conclude that the use of money that the Legislature appropriated for K-12 public education to instead fund education saving

s

accounts undermines the constitutional mandates under Sections 2 and

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to fund public education. Accordingly, we affirm in part and reverse in part the district court orders in both cases, and we remand each case for the entry of a final declaratory judgment and a permanent injunction enjoining the use of any money appropriated for K-12 public education in the State Distributive School Account to instead fund the education savings accounts.

I. A.

The ESA program is contained in Senate Bill (SB) 302, passed by the Nevada Legislature in 2015. It allows grants of public funds to be transferred into private education savings accounts for Nevada schoo l-

aged children to pay for their private schooling, tutoring, and other non- public educational services and expenses. The ESA program provides financial resources for children to pay for an alternative to education in the public school system. SB 302 was passed by the Legislature on May 29, 2015, and signed into law by the governor on June 2, 2015. 2015 Nev. Stat., ch. 332, at 1824. 1

'The provisions governing the ESA program are codified in NRS 353B.700-.930. See 2015 Nev. Stat., ch. 332, §§ 2-15, at 1826-31.

SB 302

became effective on January 1, 2016. 2015 Nev. Stat., ch. 332, § 17(1), at

1848.

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An education savings account is established when a parent

enters into an agreement with the State Treasurer for the creation of the

account. NRS 353B.850(1). To be eligible for an acco unt, a child must

have been enrolled in public school for 100 consecutive days immediately

preceding the account's establishment. Id. The accounts are administered

by the Treasurer and must be maintained with a finan cial management

firm chosen by the Treasurer. NRS 353B.850(1), (2);

NRS 353B.880(1).

Once an account is created, the amount of money depo sited into it by the

Treasurer each year is equal to a percentage of the statewide average

basic support guarantee per pupil: 100 percent for disabled and lowincome

children ($5,710 for the 2015-16 school year) and 90 percent for all

other children ($5,139 for the 2015-16 school year).

NRS 353B.860(2);

2015 Nev. Stat., ch. 537, § 1, at 3736. The money is depo sited in quarterly

installments and may be carried forward from year to year if the

agreement is renewed for that student. NRS 353B.860 (5), (6). An ESA

agreement is valid for one school year but may be term inated early. NRS

353B.850(4). If the child's parent terminates the ESA agreement, or if the

child graduates from high school or moves out of state after an account is

created, unused funds revert to the State Gen eral Fund. NRS

353B.850(5); NRS 353B.860(6)(b). The statutory provision s governing the

ESA program contain no limit on the number of educ ation savings

accounts that can be created and no maximum sum of money that can be

utilized to fund the accounts for the biennium. NRS 353B .700-.930.

The ESA program requires participating students to receive

instruction from one or more "participating entities,"

which include

private schools, a university, a program of distance educ ation, tutors, and

parents. NRS 353B.850(1)(a); NRS 353B.900. For a priv ate school to qualify as a participating entity, it must be licensed or exempt from such

licensing pursuant to NRS 394.211; "[e]lementa ry and secondary

educational institutions operated by churches, religious organizations and

faith-based ministries" are exempt from licensing unde r NRS 394.211 and

thus may qualify as a participating entity. NRS 353B .900(1)(a); NRS

394.211(1)(d). The ESA funds may only be spen t on authorized

educational expenses, which include tuition and fees, textbooks, tutoring

or teaching services, testing and assessment fees, disab ility services, and

transportation to and from the participating entities.

NRS 353B.870(1).

An account may be frozen or dissolved if the Treasure r determines that

there has been a substantial misuse of funds. NRS 353B .880(3).

B.

On June 1, 2015, three days after passing SB 302, the Nevada

Legislature passed SB 515, an appropriations bill to fund K-12 public

education for the 2015-17 biennium. SB 515 was approved by the

governor on June 11, 2015. 2015 Nev. Stat., ch. 537, at 3736. In SB 515,

the Legislature applied a formula-based statutory fram ework known as

the Nevada Plan to establish the basic support guarante e for each school

district, which is the amount of money each district is guaranteed to fund

the operation of its schools. Educ. Initiative PAC v. Com m. to Protect Nev.

Jobs, 129 Nev. 35, 49 n.8, 293 P.3d 874, 883 n.8 (2013); Rogers v. Heller, 117 Nev. 169, 174, 18 P.3d 1034, 1037 (2001) (describi ng the Nevada

Plan). The basic support guarantee is established as a per-pupil amount

for each school district, and the amount varies between districts based on

the historical cost of educating a child in that district.

NRS 387.122(1).

The per-pupil basic support guarantee is then multiplie d by the district's

enrollment. NRS 387.1223(2). Once the total amount of the basic support

guarantee is established for each district, the State dete SUPREME COURT rmines how much OF NEVADA

JO, 1947- 8

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each school district can contribute from locally collected revenue, and the

State makes up the disparity by paying to each district the difference

between the basic support guarantee and the local fund ing. See NRS

387.121(1).

To fund the basic support guarantee, state revenue is

deposited into the State Distributive School Account (DSA ), which is

located in the State General Fund. NRS 387.030. Mon ey placed in the

DSA must "be apportioned among the several school distr icts and charter

schools of this State at the times and in the manner prov ided by law."

NRS 387.030(2). Additional funds may be advanced if the DSA is

insufficient to pay the basic support guarantee. 2015 Nev.

Stat., ch. 537,

§ 9, at 3741. Because student enrollment may fluctuate from year to year,

a "hold-harmless" provision allows a district's DSA funding to be based on

enrollment from the prior year if enrollment in that parti cular district

decreases by five percent or more from one year to the next. NRS

387.1223(3).

SB 515 sets forth the specific amounts of the per-pupil basic support guarantee for each district. 2015 Nev. Stat., ch.

537, §§ 1-2, at

3736-37. Although the amounts vary from district to distr ict, the average

basic support guarantee per pupil is $5,710 for FY2015-16 and $5,774 for

FY2016-17. Id. §§ 1-2(1), at 3736. To fund the basic supp ort guarantee for

K-12 public schools, SB 515 appropriated a total of just over $2 billion

from the State General Fund to the DSA for the 2015-17 biennium. Id.

§ 7, at 3740.

C.

When an education savings account is created, the amou nt of

money deposited by the Treasurer into an account for a child within a

particular school district is deducted from that scho ol district's

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apportionment of legislatively appropriated fund s in the DSA.

Specifically, Section 16 of SB 302 amended NRS 387.124(1 ) to provide that

the apportionment of funds from the DSA to the school distri cts, computed

on a yearly basis, equals the difference between the basic support

guarantee and the local funds available 2 minus "all the funds deposited in

education savings accounts established on behalf of children who reside in

the county pursuant to NRS 353B.700 to NRS 353B.930.

" See 2015 Nev.

Stat., ch. 332, § 16, at 1839-40. According to the Treasurer 's estimate,

over 7,000 students have applied for an education savings account so far.

A.

The plaintiffs/respondents in Schwartz v. Lopez, Docket No.

69611, are seven Nevada citizens and parents of child ren enrolled in

Nevada public schools who filed a complaint seeking a judic ial declaration

that SB 302 is unconstitutional and an injunction enjoining its

implementation. The complaint named as the defendant State Treasurer

Dan Schwartz, who is charged with enforcement and admi nistration of the

ESA program. The complaint alleged that SB 302 violates the

requirement for a uniform school system under Article 11, Section 2;

diverts public school funds contrary to Article 11, Section 2 and Section 6;

2 To illustrate how the basic supp ort guarantee operates by district, according to information provided in the record, Clark Coun ty had a basic

support guarantee of $5,393 per pupil for FY 2014, and of that amount,

$2,213 constituted the state's portion of the funding and the remaining

$3,180 was paid from local funds. For the same period in Washoe County,

the basic support guarantee was $5,433 per pupil, whic h consisted of

$2,452 from state funding and $2,981 from the local funds.

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and seeks a permanent injunction enjoining the State Treasurer from

implementing the ESA program.'

The Lopez plaintiffs moved for a preliminary injunction,

arguing that they were likely to prevail on the mer its because SB 302 was

clearly unconstitutional and that Nevada's pub lic school children will

suffer irreparable harm because the education savi ngs accounts will divert

substantial funds from public schools. After a hearing, the district court granted a preliminary injunction, concluding that SB 302 violated Section

6 and thus the Lopez plaintiffs were likely to succeed on their constitutional claim, and that the balance of potential hardship to the Lopez plaintiffs' children outweighed the inte rests of the State Treasurer and others. The district court rejected the constitu tional challenge under

Section 2. The Treasurer now appeals.

B.

The plaintiffs/appellants in Duncan v. Nevada State Treasurer, Docket No. 70648, are five Nevada citizens who filed a complaint for injunctive and declaratory relief, asserting a constitutional challenge to SB 302 and alleging that it diverts pub lic funds to private schools, many of which are religious, in violatio n of Article 11, Section 10 (prohibiting public funds from being used for sectarian purpose) and

Article 11, Section 2 (requiring the Legislature to provide for a "uniform

'The Lopez plaintiffs also asserted a challen ge under Article 11,

Section 3 (requiring that certain property and proceeds pledged for

educational purposes not be used for other purp oses), which the district court rejected. Because the parties' appellate briefs do not develop an

argument as to the Section 3 challenge, we do not address it in this opinion.

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system of common schools"). The complaint named as defendants the

Office of the State Treasurer of Nevada, the Nevada Department of

Education, State Treasurer Dan Schwartz in his official capacity, and

Interim Superintendent of Public Instruction Steve Can avero in his

official capacity. Six parents who wish to register their child ren in the

ESA program were permitted to intervene as defendants.

The State Treasurer, joined by the intervenor-parents, filed

a

motion to dismiss for failure to state a claim and for lack of jurisdiction.

The State Treasurer argued that the Duncan plaintiffs lacke d standing to

challenge SB 302 and that the constitutional challenges were without

merit. In granting the State Treasurer's motion to dism iss, the district

court found that the Duncan plaintiffs had standing to bring facial

challenges to the ESA program but that the facial chal lenges under

Sections 2 and 10 were without merit. The Duncan plaintiffs appealed.

As a threshold argument, the State Treasurer contends that

the plaintiffs lack standing to challenge SB 302 because they cannot show

that they will suffer any special injury. The question of stand ing concerns

whether the party seeking relief has a sufficient interest in the litigation.

See Szilagyi v. Testa, 99 Nev. 834, 838, 673 P.2d 495, 498 (1983) (citing

Harman v. City & Cty. of San Francisco, 496 P.2d 1248, 1254 (Cal. 1972)

("The fundamental aspect of standing is that it focuses on the party

seeking to get his complaint before a. . . court)). The prim ary purpose of

this standing inquiry is to ensure the litigant will vigorously and

effectively present his or her case against an adverse party . See Harman,

496 P.2d at 1254.

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Generally, a party must show a personal injury and not merely a general interest that is common to all members of the public.

See, e.g., Doe v. Bryan, 102 Nev. 523, 525-26, 728 P.2d 443, 444-45 (1986)

(requiring plaintiffs, who sought to have criminal statu te declared

unconstitutional, to first demonstrate a personal injury, i.e., that they

were arrested or threatened with prosecution under the statu te); Blanding

v. City of Las Vegas, 52 Nev. 52, 69, 280 P. 644, 648 (1929)

(requiring

property owner to show that he would suffer a special or pecu liar injury

different from that sustained by the general public in orde r to maintain

complaint for injunctive relief).

We now recognize an exception to this injury requirement in

certain cases involving issues of significant public importanc e. Under this

public-importance exception, we may grant standing to a Neva da citizen to

raise constitutional challenges to legislative expe nditures or

appropriations without a showing of a special or personal injury. We

stress, as have other jurisdictions recognizing a similar exce ption to the

general standing requirements, that this public-importance exception is

narrow and available only if the following criteria are met. First, the case

must involve an issue of significant public importance. See, e.g., Trs. for Alaska v. State, 736 P.2d 324, 329 (Alaska 1987). Second, the case must

involve a challenge to a legislative expenditure or appropriat ion on the

basis that it violates a specific provision of the Nevada Cons titution. See

Dep't of Admin. v. Horne, 269 So. 2d 659, 662-63 (Fla. 1972).

And third,

the plaintiff must be an "appropriate" party, meaning that there is no one

else in a better position who will likely bring an action and that the

plaintiff is capable of fully advocating his or her position in court. See

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Utah Chapter of Sierra Club v. Utah Air Quality Bd., 148 P.3d 960, 972-7

3

(Utah 2006); Trs. for Alaska, 736 P.2d at 329-30.

The plaintiffs here are citizens and taxpayers of Nevada, and most are also parents of children who attend public schools. 4 They allege

that SB 302 allows millions of dollars of public funds to be diver ted from

public school districts to private schools, in clear violation of specific

provisions in the Nevada Constitution, which will result in irrep arable

harm to the public school system. These cases, which raise conce rns about

the public funding of education, are of significant statewide impo rtance.

Public education is a priority to the citizens of this state, so much so that

our Constitution was amended just ten years ago to requ ire the

Legislature to sufficiently fund public education before making any other

appropriation. See Nev. Const. art. 11, § 6(1). The plaintiffs allege that

SB 302 specifically contravenes this constitutional mandate and also

violates other constitutional provisions regarding the support of public

schools and the use of public funds. The plaintiffs are appropriate parties

to litigate these claims. There is no one else in a better posit ion to

challenge SB 302, given that the financial officer of this state charg ed with

implementing SB 302 has indicated his clear intent to comply with the

legislation and defend it against constitutional challenge. Furth er, the

plaintiffs have demonstrated an ability to competently and vigor ously

advocate their interests in court and fully litigate their claim s. We

conclude that, under the particular facts involved here, the plain tiffs in

4A11 of the Lopez plaintiffs have children in the Nevada public school system, and one of the Duncan plaintiffs has a child in public school and is

also a teacher at a public school in Nevada.

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these cases have demonstrated standing under the publ ic-importance

exception test. 5

Iv.

We now turn to the plaintiffs' constitutional claims. Initia lly,

we note that these cases come before us in different procedur al contexts—

one from an order granting a preliminary injunction and the other from an

order dismissing a complaint for failure to state a claim . Consequently,

these proceedings would ordinarily be governed by diffe rent standards.

Compare NRS 33.010 (injunction), with NRCP 12(b)(5) (mot ion to dismiss

for failure to state a claim upon which relief can be granted).

In each case,

however, the district court rendered a decision as to the constitutionality

of SB 302, which is purely a legal question reviewed de novo by this court.

See Hernandez v. Bennett-Haron, 128 Nev. 580, 586, 287 P.3d 305, 310

(2012) ("[T]his court reviews de novo determinations of whet her a statute

is constitutional."). Thus, our review in these cases is de novo, and we

apply the standards governing facial challenges to a statute's

constitutionality.

In considering a constitutional challenge to a statute, we must

start with the presumption in favor of constitutionality, and therefore we

"will interfere only when the Constitution is clearly viola ted." List v.

Whisler, 99 Nev. 133, 137, 660 P.2d 104, 106 (1983). "Wh en making a

facial challenge to a statute, the challenger generally bear s the burden of

demonstrating that there is no set of circumstances unde r which the

5Because we conclude the plaintiffs have standing under the public-

importance exception, we decline to consider the parti es' arguments

regarding whether the plaintiffs have taxpayer standing.

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statute would be valid." Deja Vu Showgirls of Las Vegas, LLC v. Nev.

Dep't of Taxation, 130 Nev., Adv. Op. 73, 334 P.3d 392, 398 (2014). The

rules of statutory construction apply when interpreting a constitutional

provision. Lorton v. Jones, 130 Nev., Adv. Op. 8, 322 P.3d 1051, 1054 (2014). This court will look to the plain language of the provision if it is

unambiguous. See City of Sparks v. Sparks Mun. Court, 129 Nev. 348, 359, 302 P.3d 1118, 1126 (2013). If, however, the provision is subject to

more than one reasonable interpretation, the provision is ambiguous, and

this court will look beyond the plain language and consider the provision's

history, public policy, and reason in order to ascertain the intent of the

drafters. Id. Our interpretation of an ambiguous provision also must take

into consideration the spirit of the provision and avoid absurd results.

J.E. Dunn Nw., Inc. v. Corus Constr. Venture, LLC, 127 Nev.

72, 79, 249

P.3d 501, 505 (2011).

V.

The plaintiffs first argue that the ESA program viola tes

Section 2 of Article 11 in the Nevada Constitution, whic h requires the

Legislature to provide for "a uniform system of common schools." The

plaintiffs contend that SB 302 violates Section 2 by using public funds to

subsidize an alternative system of education that includes non-common,

non-uniform private schools and home-based schooling , which are not

subject to curriculum requirements and performance stand ards and which

can discriminate in their admission practices. For support, the plaintiffs

cite the maxim expressio unius est exclusio alterius, to argu e that the

expression in Section 2 requiring the Legislature to main tain a uniform

system of common schools necessarily forbids the Legi slature from

simultaneously using public funding to pay for private educ ation that is

wholly outside of the public school system. See Galloway v. True SUPREME COURT sdell, 83 OF NEVADA

(0) 1947A

17

Nev. 13, 26, 422 P.2d 237, 246 (1967) ("The affirmation of a distinct policy

upon any specific point in a state constitution implies the negation of any

power in the legislature to establish a different policy."

(quoting State v.

Hallock, 14 Nev. 202, 205-06 (1879))).

The State Treasurer, on the other hand, argues that the

"uniform" requirement in Section 2 is concerned with maintaining

uniformity within the public school system, by avoi ding differences

between public schools across the state, and the Legislatu re has fulfilled

its duty by maintaining public schools that are uniform , free of charge,

and open to all. The State Treasurer also asserts that Section 2 must be

read in conjunction with the broader mandate of Sect ion 1 of Article 11,

requiring the Legislature to encourage education "by all suitable means,"

and that nothing prohibits the Legislature from prom oting education

outside of public schools.

A.

We begin our analysis with the text of Section 2 of Artic le 11,

which states:

The legislature shall provide for a uniform system of common schools, by which a school shall be established and maintained in each school district at least six months in every year, and any school district which shall allow instruction of a sectarian character therein may be deprived of its proportion of the interest of the public school fund during such neglect or infraction, and the legislature may pass such laws as will tend to secure a general attendance of the children in each school district upon said public schools.

Nev. Const. art. 11, § 2. Looking to the plain language of Section 2, it is

clearly directed at maintaining uniformity within the public school

system. See State v. Tilford, 1 Nev. 240, 245 (1865) (upholding under

SUPREME COURT OF NEVADA

(0) I 947A

18

Section 2 the Legislature's abolition of Storey County's Board of

Education, which was different from any other coun ty). Section 2 requires

that a school be maintained in each school district at least six months each

year, provides that funding may be withheld from any school district that

allows sectarian instruction, and permits the Legislature to set

parameters on attendance "in each school dist rict upon said public

schools." (Emphasis added.)

The plaintiffs do not dispute that Nevada's pub lic school

system is uniform, free of charge, and open to all stud ents. SB 302 does not alter the existence or structure of the public scho ol system. Nor does

SB 302 transform private schools or its other part icipating entities into

public schools. Indeed, NRS 353B.930 stat es that nothing in the

provisions governing education savings accounts "sha ll be deemed to limit

the independence or autonomy of a participatin g entity or to make the

actions of a participating entity the actions of the State Government."

Thus, SB 302 is not contrary to Section 2's man date to provide for a

uniform system of common schools.

B.

We find additional support for this conclusion in Section 1 of

Article 11, which requires the Legislature to enco urage education "by all

suitable means." Section 1 of Article 11 states:

The legislature shall encourage by all suitable means the promotion of intellectual, literary, scientific, mining, mechanical, agricultural, and moral improvements, and also provide for a superintendent of public instruction and by law prescribe the manner of appointment, term of office and the duties thereof.

Nev. Const. art. 11, § 1. Use of the phrase "by all suitable means" refle cts the framers' intent to confer broad discretion on the Legislature in

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fulfilling its duty to promote intellectual, literary, scientific, and other

such improvements, and to encourage other methods in addit ion to the

public school system.

The plaintiffs argue that Section 1 cannot be read in isolation to permit the Legislature to take any action as long as it tends to

encourage education, and that the mandate in the second clause requiring

a superintendent of public instruction, as well as the debates surro unding

the adoption of Article 11, show that Section 1 was meant to apply only to

public education. Yet, use of the phrase "and also" to sepa rate the

superintendent clause from the suitable means clause signi fies two

separate legislative duties: the first to encourage the promotion of intellectual, literary, scientific, mining, mechanical, agricultur al, and

moral improvements; and the second to provide for a superintendent of

public instruction. See Meredith v. Pence, 984 N.E.2d 1213, 1221 (Ind.

C5( 2013) (interpreting use of the word "and" in the Indiana s.pns titution's

education clause as setting forth two separate and distinct dutie s). While

both clauses pertain to education, they operate independently, and the

second duty is not a limitation on the first. And although the debates

surrounding the enactment of Article 11 reveal that the deleg ates

discussed the establishment of a system of public education and its

funding, they also noted the importance of parental freedom over the

education of their children, rejected the notion of making publi c school

attendance compulsory, and acknowledged the need to vest the

Legislature with discretion over education into the future. See Deba tes &

Proceedings of the Nevada State Constitutional Convention of 1864, at

565-77 (Andrew J. Marsh off. rep., 1866); see also Thomas W. Stew art

& Brittany Walker, Nevada's Education Savings Accounts: A

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Constitutional Analysis (2016) (Nevada Supreme Cou rt Summaries),

http://scholars.law.unlv.edu/nvscs/950, at 12-15 (discussing the history of

Nevada Constitution Article 11, Section 2). If, as the plain tiffs argue, the

framers had intended Section 2's requirement for a uniform school system

to be the only means by which the Legislature could promote educational

advancements under Section 1, they could have expressly stated that, but

instead they placed these directives in two separate sections of Article 11,

neither of which references the other. To accept the narro w reading urged

by the plaintiffs would mean that the public school syste m is the only

means by which the Legislature could encourage education in Nevada. We

decline to adopt such a limited interpretation. See State v. West erfield, 23

Nev. 468, 474, 49 P. 119, 121 (1897) (authorizing expenditu re of general

fund money to pay a teacher's salary at a non-public school).

Our holding is consistent with the Indiana Supreme Cour t's

decision in Meredith v. Pence, which upheld an educ ation choice program

against a challenge brought under the Indiana „constitu tion's school

uniformity clause similar to Nevada's. 984 N.E.2d at 1223. That case

involved the state's statutory school voucher program, which permits

eligible students to use public funds to attend private inste ad of public

schools. Id. at 1223. The education clause at issue stated:

[I]t shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide, by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.

Id. at 1217 n.1 (quoting Ind. Const. art. 8, § 1). Focu sing in part on the

use of the conjunction "and," the court interpreted this prov ision as plainly

setting forth two separate and distinct duties—the first to enco SUPREME COURT urage, by OF NEVADA

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all suitable means, moral, intellectual, scientific, and agricultural

improvement, and the second to provide for a general and unifo rm system

of common schools—and concluded that the second duty cann ot be read as

a restriction on the first. Id. at 1221, 1224. Because the public school system remained in place and available to all school child ren and the

voucher program did not alter its structure or components, the court held

that the voucher program did not conflict with the legislatur e's imperative

to provide for a general and uniform system of common schools. Id. at

1223. The Indiana court instead concluded that the prog ram fell within

the legislature's independent and broader duty to enco urage moral,

intellectual, scientific, and agricultural improvement. Id. at 1224-25. The

court also interpreted the phrase "by all suitable means" as demonstrating

an intent to confer broad legislative discretion, and was not persuaded by

the plaintiffs' argument in that case to apply the expressio unius canon in

part because it would limit, contrary to the framers' inten t, this broad

delegation of legislative authority. Id. at 1222 & 1224 n.17.

6

6 The Supreme Courts of North Carolina and Wisconsin have likewise upheld educational choice programs against chall enges under

their state's uniform-school provisions. See Hart v. State, 774 S.E.2d 281,

289-90 (N.C. 2015) (holding that the uniformity clause appli ed exclusively

to the public school system, mandating public scho ols of like kind

throughout the state, and did not prevent the legislatur e from funding

educational initiatives outside that system); Davis v. Grov er, 480 N.W.2d

460, 473-74 (Wis. 1992) (holding that the uniformity claus e requires the

legislature to provide the state's school children with the opportunity to

receive a free uniform basic education, and the school choice program

"merely reflects a legislative desire to do more than that which is

constitutionally mandated").

22

The plaintiffs' reliance on Bush v. Holmes, wherein the Flori da

Supreme Court held unconstitutional the state's Opportuni ty Scholarship

Program (OSP) that permitted expenditure of public funds to allow

students to attend private schools, is inapposite. 919 So. 2d 392, 407 (Fla.

2006). Florida's constitutional uniformity provision is different than

Nevada's, providing:

The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education. . . .

Fla. Const. art. 9, § 1(a) (West 2010). The Florida cour t stated that the

second sentence imposed a "paramount duty" on the state to make

"adequate provision" for the education of all children with in the state, but

the third sentence contains a restriction on the execution of that duty by

requiring "a uniform, efficient, safe, secure, and high qual ity system of

free public schools" that allows students to obtain a high quality

education. Bush, 919 So. 2d at 406-07. The court held that the OSP violated this section by "devoting the state's resources to the educ ation of

children within [Florida} through means other than a syste m of free public

schools." Id. at 407. The Meredith court distinguish ed the Bush decision

because the Indiana Constitution contained no "adequate prov ision" clause

and no restriction on the mandate to provide a free public school system,

and instead contained two distinct duties—"to encourag e. . . moral,

intellectual, scientific, and agricultural improvemen t," and "to

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23

provide. . . for a general and uniform system of Com mon Schools."

Meredith, 984 N.E.2d at 1224.

Similarly here, the Nevada Constitution contains two distin ct

duties set forth in two separate sections of Article 11—one to encourage

education through all suitable means (Section 1) and the other to provide

for a uniform system of common schools (Section 2). We conclude that as

long as the Legislature maintains a uniform public scho ol system, open

and available to all students, the constitutional mandate of Section 2 is

satisfied, and the Legislature may encourage other suita ble educational

measures under Section 1. The legislative duty to main tain a uniform

public school system is "not a ceiling but a floor upon whic h the legislature

can build additional opportunities for school children." Jackson v. Benson,

578 N.W.2d 602, 628 (Wis. 1998). For these reasons, we conc lude that the

plaintiffs have not established that the creation of an ESA program

violates Section 2. 7

VI.

The Duncan plaintiffs argue that the ESA program violates

Section 10 of Article 11 in the Nevada Constitution by allowing public

funds to be used for tuition at religious schools. Article 11, Section 10 of

the Nevada Constitution states: "No public funds of any kind or character

whatever, State, County or Municipal, shall be used for sectarian

purpose." Nev. Const. art. 11, § 10.

7As for the plaintiffs' argument that SB 302's diversion of public

school funding undermines the public school system in viola tion of Section

2, we address that issue under Section VII of this opinion.

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A.

As detailed above, the ESA program established by SB 302

allows for public funds to be deposited by the State Trea surer into an

account set up by a parent on behalf of a child so that the parents may use

the funds to pay for the child's educational expenses. It is undisputed that

the ESA program has a secular purpose—that of education —and that the

public funds which the State Treasurer deposits into the educ ation savings

accounts are intended to be used for educational, or non-sectarian,

purposes. Thus, in depositing public funds into an educ ation savings

account, the State is not using the funds for a "sectarian purpose." The

plaintiffs do not disagree on this point. Instead, they poin t to the fact that

the ESA program permits parents to use the funds at relig ious schools,

and they argue that this would constitute a use of publ ic funds for a

sectarian purpose, in violation of Section 10. We disag ree. Once the

public funds are deposited into an education savings acco unt, the funds

are no longer "public funds" but are instead the private funds of the

individual parent who established the account. The paren t decides where

to spend that money for the child's education and may choose from a

variety of participating entities, including religious and non-religious

schools. Any decision by the parent to use the funds in his or her account

to pay tuition at a religious school does not involve the use of "public

funds" and thus does not implicate Section 10.

The plaintiffs contend that the mere placement of public fund

s

into an account held in the name of a private individual does not alter the

public nature of the funds. As support, the plaintiffs poin t to regulatory

aspects of the ESA program that they claim demonstrate that the funds in

the education savings accounts remain public funds unde r State control.

For example, the accounts must be established thro ugh a financial

25

management firm chosen by the State Treasurer, the State Treasurer may

audit the accounts and freeze or dissolve them if any funds are misused,

and the funds revert back to the State if the child no longer participates in

the ESA program or graduates from high school. NRS 353B.850(2); NRS

353B.860(6)(b); NRS 353B.880(2), (3). We recogniz e the ESA program

imposes conditions on the parents' use of the fund s in their account and

also provides State oversight of the education savings accounts to ensure

those conditions are met. But, as we explained earli er, the Legislature

may use suitable means to encourage and promote education, see Nev.

Const. art. 11, § 1, and all of the conditions imposed on the ESA funds are

consistent with the Legislature's non-sectarian purp ose of promoting

education. 8 That the funds may be used by the pare nts only for authorized

educational expenses does not alter the fact that the funds belong to the

parents. And, though the funds may revert back to the State under

certain circumstances, we nonetheless conclude that, during the time the

funds are in the education savings accounts, they belong to the parents

and are not "public funds" subject to Article 11, Section 10.

B.

The plaintiffs contend that State v. Hallock, 16 Nev.

373

(1882)—the only case in which this court has addr essed the meaning of

8 For example, parents are restricted to using funds only on authorized educational expenses, such as tuiti on, fees, textbooks,

curriculum, and tutoring. NRS 353B.870(1). And they must use those

funds to receive instruction from "participating entit ies," which include

private schools, public universities or community colleges, distance

education providers, accredited tutoring providers, and parents that have

applied for such status and met all of the requirem ents set forth in NRS

353B.900. NRS 353B.750; NRS 353B.850(1)(a).

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Section 10—prohibits any public funds from endi ng up in the coffers of a religious institution or school. We disagree with the plaintiffs' reading of Hallock. The Hallock decision concerned an appr opriation of public funds from the State treasury directly to a sectarian insti tution and held that

such a payment was prohibited by Section 10.

The ESA program,

however, provides for public funds to be deposited dire ctly into an account

belonging to a private individual, not to a sectaria n insti tution. No public funds are paid directly to a sectarian school or insti tution under the ESA

program. Rather, public funds are deposited into an account established

by a parent, who may then choose to spend the mon ey at a religious school

or one of the other participating entities. Those fund s, once deposited into

the account, are no longer public funds, and this ends the inquiry for

Section 10 purposes. Our holding in Hallock does not require a different

conclusion. 9 Accordingly, we conclude that the ESA program does not

9 1n support of their contention that Section 10 prohibits ESA funds from being paid to religious schools, the plaintiff s rely on a statement in

Hallock that "public funds should not be used , directly or indirectly, for the building up of any sect." 16 Nev. at 387 (em phasis added). The

plaintiffs read this as prohibiting any public fund s from going to religious schools, whether paid directly by the State or indi rectly by way of the

parents. The more likely meaning of this stat ement was to address

concern that, while public funds given to a "sectaria n institution" such as

the one in Hallock—a Catholic-run orphanage and school—may be used by that institution only to pay for the physical need s of the orphans, those

funds nevertheless have the indirect effect of "bui lding up a sect" through

the instruction and indoctrination of those children in a particular sect.

Regardless, the issue in Hallock concerned only the direct payment of

public funds to a sectarian institution, and thus any statement about an

indirect payment of public funds would be dictum.

27

result in any public funds being used for sectarian purpose and thus does

not violate Article 11, Section 10 of the Nevada Constitution.

VII.

Both the Lopez and Duncan plaintiffs contend that SB 302

violates Section 2 of Article 11 of the Nevada Constitution, and the Lopez

plaintiffs assert that SB 302 violates Section 6 of Article 11 of the Nevada

Constitution, which requires the Legislature to appropria te money in an

amount the Legislature deems sufficient to pay for the operation of the

public schools before the Legislature enacts any other appr opriation for

the biennium. Nev. Const. art. 11, §§ 2, 6. The plaintiffs argue that SB

302 undermines the funding of the public school system by diverting funds

appropriated for public schools to the education savin gs accounts for

private expenditures in violation of these constitutional provisions. The

State Treasurer argues that Article 11, Section 2 and Sect ion 6 impose

only three requirements on the Legislature: (1) fund the public schools

from the general fund; (2) appropriate funds for the public schools before

any other appropriation; and (3) appropriate funds it deems to be

sufficient for public schools. According to the State Treasurer, the

Legislature satisfied these requirements when it passed the appropriation

in SB 515 that funded the DSA, and SB 302's movement of funds from the

DSA into the education savings accounts does not contraven e any of these

requirements.

A.

Nevada Constitution Article 4, Section 19 states that "[n]o money shall be drawn from the treasury but in cons equence of

appropriations made by law." An "appropriation" is "the setti ng aside

from the public revenue of a certain sum of money for a speci fied object, in

such manner that the executive officers of the governme SUPREME COURT nt are authorized

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to use that money, and no more, for that object, and no other." Rogers v.

Heller, 117 Nev. 169, 173 n.8, 18 P.3d 1034, 1036 n.8 (2001) (quoting Hunt

v. Callaghan, 257 P. 648, 649 (Ariz. 1927)). Gen eral legislation may

contain an appropriation to fund its operation. See State v. Eggers, 29 Nev. 469, 475, 91 P. 819, 820 (1907). No technica l words are necessary to

constitute an appropriation if there is a clear legis lative intent authorizing the expenditure and a maximum amount set asid e for the payment of

claims or at least a formula by which the amount can be determined. See id. at 475, 484-85, 91 P. at 820, 824; Norcross v.

Cole, 44 Nev. 88, 93, 189 P. 877, 878 (1920). While this court has not requ ired any particular

wording to find an appropriation, there must be language manifesting a

clear intent to appropriate. See State v. Eggers, 35 Nev . 250, 258, 128 P.

986, 988 (1913) (interpreting an appropriatio n act by its terms and

declining to infer an expenditure when the language did not manifest such

an intent).

Applying these principles, one could argue that SB 302

impliedly appropriates funds for education savings accounts because it

authorizes the Treasurer to issue a grant of mon ey for each education

savings account in an amount based on a percenta ge of the statewide

average basic support per pupi1. 1° There are two prob lems with that argument.

loThis court may raise sua sponte a constitutional issue not asserted

in the district court. See, e.g., Desert Chrysler-Pl ymouth, Inc. v. Chrysler

Corp., 95 Nev. 640, 644, 600 P.2d 1189, 1191 (197 9) ("[S]ince the statutes were assailed on constitutional grounds, it would be paradoxical for us to

uphold the statutes on the grounds raised by the part ies, yet ignore a clear

violation of the separation of powers doctrine.").

Although the plaintiffs continued on next page . . .

29

First, SB 302 contains no limit on the number of education savings accounts that can be created or the maximum sum of mon ey that can be utilized to fund the accounts for the biennium. Thes e omissions

suggest that SB 302 does not contain an appropriation.

Because of the

"hold-harmless" provision under NRS 387.1223(3), which allows a school

district's DSA funding to be based on enrollment from the prior year if

enrollment in that particular district decreases by five perc ent or more

from one year to the next, if all students left the public scho ol system, the

State must still fund both the school districts' per pupil amou nt based on

95 percent of the prior year's enrollment and the educ ation savings

accounts for all students, an amount potentially double the $2 billion

appropriated in SB 515 for just the public schools. Give n that scenario,

surely the Legislature would have specified the number of education

savings accounts or set a maximum sum of money to fund those accounts

if the Legislature had intended SB 302 to include an appropria tion.

Second, the Legislature passed SB 302 on May 29, 2015, but it

did not enact SB 515, appropriating the money to fund the public schools,

until June 1, 2015. Section 6(2) of Article 11 of the Neva da Constitution

• . . continued did not challenge the ESA program under Article 4, Sect ion 19, they did

challenge the constitutionality of SB 302's diversion to the education

savings accounts of funds appropriated for the public scho ols in SB 515.

Like in Desert Chrysler-Plymouth, it would be paradoxica l for us to decide

whether SB 302 diverts funds from the public school appr opriation in SB

515, without addressing whether the education savings account funds

were, in fact, appropriated in either SB 302 or SB 515.

Furthermore,

based on the State Treasurer's concession that SB 302 is not an

appropriation, we find no need for further briefing on this issue.

30

directs that, "before any other appropriation is enac ted to fund a portion of

the state budget. . . the Legislature sha ll enact one or more

appropriations to provide the money the Leg islature deems to be

sufficient. . . to fund the operation of the public schools in the State for

kindergarten through grade 12," while section 6(5) provides, "[a]ny

appropriation of money enacted in violation of [sec tion 6(2)1 is void." If SB 302 contained an appropriation to fund the edu cation savings accounts, it would violate Nevada Constitution Article 11, Sect ion 6(2), requiring that

before any other appropriation is enacted the Legislature shall

appropriate the money to fund the operation of the public schools. Such

an appropriation would be void. See Nev. Const.

art. 11, § 6(5). For these two reasons, we necessarily conclude that SB 302 does not contain an

appropriation to fund its operation. See Nev. Con st. art. 4, § 19.

B.

The State Treasurer therefore concedes, as he must, that SB

302 did not appropriate funds for the education savings accounts. Instead, the State Treasurer asserts that the $2 billion lum p sum appropriation to

the DSA in SB 515 is the total amount the Leg islature deemed sufficient to fund both public schools and the educati on savings accounts. This argument fails, however, because SB 515 doe s not mention, let alone

appropriate, any funds for the education savings accounts. The title of SB 515 states that it is an act "ensuring sufficient funding for K-12 public

education for the 2015-2017 biennium." 2015 Nev . Stat., ch. 537, at 3736 (emphasis added). Consistent with the title's focu s on public education,

and the mandate in Article 11, Section 2 and Sect ion 6, the text of SB 515 sets forth the basic support guarantee for eac h school district and

appropriates just over $2 billion to the DS A for payment of those

expenditures. The text of SB 515 does not add ress the ESA program or

31

appropriate any money to fund it. The legislat ive history of SB 515

contains no discussion of the education savings accounts or their fiscal

impact on the amount appropriated for public scho ols. Moreover, the DSA

Summary for the 2015-17 biennium contains a list of amounts for the basic support guarantee funding and oth er categorical funding

components of public education, but there is no line item for funding the education savings accounts. Thus, the record is devoid of any evidence that the Legislature included an appropriation to fund the education

savings accounts in the amount the Legislature itself deemed sufficient to fund K-12 public education in SB 515. 11 The State Treasurer also argues that we must presume that

the Legislature understood that SB 515 would fund both public education

and the education savings accounts from the $2 billion because SB 302

had already been approved, see City of Boulder City v. Gen. Sales Drivers, 101 Nev. 117, 118-19, 694 P.2d 498, 500 (1985)

(recognizing a presumption that when the Legislature enacts a statute it acts with full knowledge of

11 The State Treasurer argues that the question of whether the Legislature appropriated funds "it deems sufficien t" to fund public schools under Section 6(2) is nonjusticiable because that determination is a policy choice committed to the legislative branch. See N. Lake Tahoe Fire Prot.

Dist. v. Washoe Cty. Bd. of Cty. Comm'rs, 129 Nev ., Adv. Op. 72, 310 P.3d

583, 587 (2013) ("Under the political question doctrine, controversies are precluded from judicial review when they revo lve around policy choices and value determinations constitutionally committ ed for resolution to the

legislative and executive branches." (internal quo tation marks omitted)).

We do not pass judgment on whether the amo unt appropriated is in fact sufficient to fund the public schools. Rather, the issue before us is

whether the amount the Legislature itself deem ed sufficient in SB 515

must be safeguarded for and used by public scho ols and cannot be diverted for other uses under our state constitution.

32

existing statutes on same subject). We will not, however, infer an

appropriation for a specific purpose when the legi slative act does not

expressly authorize the expenditure for that purpose.

See Eggers, 35 Nev.

at 258, 128 P. at 988. SB 515 does not, by its term s, set aside funds for the education savings accounts. Nor could we make such an inference. While

SB 302 passed the Legislature on May 29, 2015, it was not signed into law

by the governor until June 2, 2015, after the Legislat ure passed SB 515 on

June 1, 2015. For these reasons, we reject the Stat e Treasurer's argument

that SB 515 appropriates funds for the education savi ngs accounts created

under SB 302.

C.

Having determined that SB 515 did not appropriate any funds

for the education savings accounts, the use of any money appropriated in

SB 515 for K-12 public education to instead fund the education savings

accounts contravenes the requirements in Article 11, Section 2 and Section

6 and must be permanently enjoined. See 2015 Nev . Stat., ch. 332, § 16, at 1839-41 (amending NRS 387.124(1) to require that all funds deposited in

the education savings accounts be subtracted from the school districts'

quarterly apportionments of the DSA). Additionally, because SB 302 does

not provide an independent basis to appropriate money from the State

General Fund and no other appropriation appears to exist, the education

savings account program is without an appropr iation to support its

operation. See Nev. Const. art. 4, § 19. Given our conclus ion, it is

unnecessary to address any additional constitu tion al arguments under Section 6 of Article 11 of the Nevada Constitution.

VIII.

In Duncan v. Nevada State Treasurer, Docket No.

70648, we

affirm in part and reverse in part the district cour SUPREME COURT t's order dismissing the

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complaint and remand the case to the district court to enter a final

declaratory judgment and permanent injunction enjoining enforcement of

Section 16 of SB 302 absent appropriation ther efor consistent with this opinion. In Schwartz v. Lopez, Docket No. 696 11, we affirm in part and reverse in part the district court's order granting a preliminary injunction, and we remand the case to the district court to enter a final declaratory judgment and permanent injunction enjoining enfo rcement of Section 16 of

SB 302 consistent with this opinion.

J.

Hardesty

Parraguirre

Pickering

SUPREME COURT OF

NEVADA

(0) 1947!

DOUGLAS, J., with whom CHERRY, J., agre es, concurring in part and dissenting in part:

I concur in all but Part VI of the court's opin ion. As to Part

VI I do not believe the court should reach the issue of whether SB 302

violates Article 11, Section 10 of the Nevada Con stitution for two reasons.

First, our holding that the funding of the edu cation savings

accounts must be permanently enjoined as unconstitutional makes it unnecessary for us to consider whether certain portions of SB 302 also

violate Section 10. See Cortes v. State, 127 Nev. 505, 516, 260 P.3d 184, 192 (2011) ("Constitutional questions should not be decided except when absolutely necessary to properly dispose of the particular case." (internal quotation marks omitted)). Second, the Section 10 challenge is not ripe for a decision on the merits. In reaching the merits of the Section 10

challenge, the court ignores that the Duncan com plaint (which raised the

Section 10 challenge) was dismissed by the district court for failure to state a claim under NRCP 12(b)(5). At that stag e of the litigation, the only issue to be considered is whether, accepting all factual allegations as true, the complaint alleged a claim upon which relie f may be granted. See Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 181 P.3d 670 (2008). Because the Duncan plaintiffs stated a lega lly sufficient claim when they alleged that the ESA program violates Article 11, Section 10 by allowing public funds to be used for sectarian purpose, the district court erred in dismissing the complaint as to this claim. The court appears to concede

that the plaintiffs alleged a legally sufficient clai m but nevertheless would

affirm on the basis that no relief is warranted because the funds in the

education savings accounts are not "public " and thus do not implicate Section 10. However, in my opinion, the issu e as to whether the funds in SUPREME COURT OF NEVADA

(0) 1947A the education savings accounts are private or public in nature involves factual determinations that were not made by the district court and should not be made by this court in the first inst ance. And, as the Section 10 claim is a matter of first impression and not as well-defined and easily resolved as my colleagues suggest, see, e.g., Mos es v. Skandera, 367 P.3d

838, 849 (N.M. 2015) (holding that state con stitution prohibits public funds from being used to buy textbooks for stud ents attending private

schools), petition for cert. filed, 84 U.S.L.W. 3657 (U.S. May 16, 2016) (No.

15-1409); Taxpayers for Pub. Educ. v. Douglas Cty. Sch. Dist., 351 P.3d 461, 471 (Colo. 2015) (plurality) (holding that state constitution prohibits public funds from being given to students to use at religious schools), petition for cert. filed, 84 U.S.L.W. 3261 (U.S . Oct. 28, 2015) (No. 15-558), the proper action here, had a majority of this cour t not determined that SB

302's funding is unconstitutional, would be to remand this matter to the district court for further proceedings and factual dev elopment as to this claim. For these reasons, I respectfully dissent as to Part VI of the court's opinion.

•04,1%4C

Douglas

J.

I concur:

Cherry

2

7P4.22167i14,rn.7T