This article was originally published in Nebraska Examiner.
LINCOLN — The Nebraska Supreme Court on Friday left voters with the choice about the future of the latest remake of a scholarship or voucher program to help families offset the costs of private K-12 education.
The court unanimously decided, 7-0, that the ballot measure seeking to repeal Legislative Bill 1402 was not an appropriation and therefore is subject to the referendum process under the Nebraska Constitution.
“We see no language in Section 1 of LB 1402 making an appropriation at all,” the court wrote in a joint or per curiam opinion. “It is settled law in Nebraska that there can be no implied appropriation…. Appropriations must be expressly stated or directly necessary for the implementation of a statutory provision.”
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Attorneys for the mother of a Douglas County student receiving funds under a scholarship program had argued the measure was regular spending by the Legislature and shouldn’t be subject to a vote of the people.
Tom Venzor, an attorney known for his work with the Nebraska Catholic Conference, argued on Tuesday that Article III, Section 3 of the Nebraska Constitution reserves that right for the Legislature.
He argued that the bill and its related appropriations bill were intertwined.
Reasoning telegraphed at hearing
Justices on Tuesday telegraphed the majority’s reasoning, that the ballot measure pushed by Support Our Schools sought only to repeal LB 1402 and not its related-but-separate appropriations bill, LB 1402A.
Local school choice advocates, including LB 1402’s sponsor, State Sen. Lou Ann Linehan of Omaha, and others who voted for it, including State Sen. Justin Wayne of Omaha, had argued it was an appropriation.
“We applaud Ms. Collar’s bravery in bringing the case forward and representing the thousands of Nebraska parents like her who now have hope for their child’s education thanks to scholarships,” said Jeremy Ekeler of Opportunity Scholarships of Nebraska. “We are confident voters will stand with kids and families this fall.”
Daniel Gutman, an attorney for the public school advocates, argued that the $10 million appropriation in LB 1402A would still exist if voters reject LB 1402, and would eventually revert to the general fund.
He argued that LB 1402, by benefiting private schools, unconstitutionally directed state funds to private institutions, something prohibited by Article VII, Section 11.
The court sidestepped that question, ruling instead on the narrower question of whether a law without its associated appropriations bill could be repealed by public referendum, ruling that it can.
Tim Royers of Support Our Schools, the new president of the Nebraska State Education Association, said his group is “thrilled that the Supreme Court protected one of our most important rights as Nebraskans, and we look forward to repealing LB 1402 in the upcoming election.”
His predecessor at NSEA, Jenni Benson, said people seeking public funds for private schooling have fought letting the voters decide “at every turn.”
“These voucher proponents want to impose their costly private school voucher scheme on Nebraska taxpayers,” she said in a statement. “But public school supporters from all across our state joined together to protect our public schools with two successful petition drives and a winning defense of the petition process in the Nebraska Supreme Court.”
Venzor issued a statement Friday from the Catholic Conference saying the decision “hurts the children and families who need support the most—those facing hardships such as bullying, disabilities, or the unique challenges of military life.”
Nebraska Secretary of State Bob Evnen, the target of the lawsuit, complicated the lawsuit by filing a pledge to force another lawsuit if the court sidestepped the key legal question and instead ruled on a technicality.
The court did not seem pleased with his change in position. Chief Justice Mike Heavican argued that Evnen had already “made a determination that the referendum was valid and sufficient.”
“Once done, I am aware of no process by which the Secretary can change his mind and ‘rescind his legal sufficiency determination and not place the referendum on the ballot,’” Heavican wrote in a concurring opinion, criticizing Evnen’s attempt to reverse his certification decision.
Evnen’s office had no immediate comment on the decision.
Will appropriators gain power?
Linehan said she felt badly for the 2,500 students now attending a private school of their choice whose families will now worry about whether the money that helps them attend will be there.
But she said she is more worried about what the decision’s interpretation might mean for future Legislatures because it seems to increase the power of senators on the Appropriations Committee.
She said it will make Lincoln more like Washington, D.C., where she served as chief of staff for former U.S. Sen. Chuck Hagel, R-Neb. She said people who want anything done will go through appropriators.
“It’s horrible,” Linehan said. “Not to do with school choice. The real problem is that decision says if it’s not in the budget, if the appropriators don’t like it, everybody else in the Legislature is neutered.”
State Sen. Justin Wayne of Omaha said the decision could impact even judicial salaries because their funding bills come through the Judiciary Committee.
Voters, if they got upset, could cut the salaries, he argued.
“A bills (appropriations bills) were created as a way for the Legislature to keep track of stuff,” he said.
Linehan said any bill with spending that is not ongoing and in the budget will be at risk of being rejected by the voters. She partly blamed the tight timeline the court had to decide the case.
“I think the time crunch probably didn’t give the court enough time to think through thoroughly what they were doing here,” Linehan said. “The governor and the appropriators will now run the place.”
Nebraska Examiner is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Nebraska Examiner maintains editorial independence. Contact Editor Cate Folsom for questions: info@nebraskaexaminer.com . Follow Nebraska Examiner on Facebook and X .
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