Nick Krieger (@nckrieger):
The Michigan Supreme Court has denied Governor Rick Snyder's request for an advisory opinion on the constitutionality of § 152b of 2016 PA 249, a provision of the 2016-2017 school aid appropriations act that earmarks $2.5 million in state funds for parochial and nonpublic schools.
As I wrote in July, this appropriation of state money for private schools is blatantly unconstitutional. Article 8, § 2 of the Michigan Constitution provides in relevant part:
No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students.
This provision was intended to prohibit all public aid to private schools. The constitutional language is very broad, flatly banning numerous varieties of state assistance for nonpublic schools. Nor does it include an exception for "non-educational" funding, "non-instructional" aid, or de minimus expenditures as some commentators and interest groups have erroneously argued. Simply put, the Michigan Constitution prohibits all state aid for nonpublic schools, irrespective of the source or intended purpose.
Some people have suggested that, given the Supreme Court's order, the Court must have believed that the appropriation of public aid for nonpublic schools in § 152b does not raise a substantial constitutional question. For example, Gary Naeyaert of the Great Lakes Education Project told the Detroit Free Press that "by not issuing an advisory opinion, 'the court is saying this isn't enough of a constitutional issue to earn their attention.'"
Nothing could be further from the truth. The Michigan Supreme Court's decision to decline Governor Snyder's request for an advisory opinion does not mean that the appropriation contained in § 152b is constitutional or that the issue is insubstantial. The Court did not base its decision on the merits of the case. Instead, it denied Snyder's request on the ground that "we are not persuaded that granting the request would be an appropriate exercise of the Court's discretion."
As I have previously written, the Michigan Supreme Court actually lacked jurisdiction to grant the request because Snyder waited until after 2016 PA 249 had already taken immediate effect to ask the justices for their opinion. Under Article 3, § 8 of the Michigan Constitution, the Supreme Court may only issue an advisory opinion on the constitutionality of legislation "after it has been enacted into law but before its effective date."
The Supreme Court's decision to deny Snyder's request was most likely based on its own lack of jurisdiction — not on any underlying finding that the appropriation is legal or that the question is constitutionally insignificant. It would be wholly impermissible to read anything else into the Court's order at this time. Further, the order is in no way precedentially binding or indicative of how the Supreme Court might rule on the merits of the question when and if an actual controversy concerning the § 152b appropriation reaches the justices.
So what's next? Opponents of § 152b can now file suit in a state trial court (most likely the Michigan court of claims) to stop the appropriation. Of course, it will be necessary to find one or more plaintiffs with standing to sue.
The Michigan Court of Appeals has previously held that, in order to sue for an alleged violation of Article 8, § 2, a plaintiff must be able to show a concrete and particularized injury in fact. MEA v Superintendent of Public Instruction, 272 Mich App 1, 12; 724 NW2d 478 (2006). The MEA Court specifically analyzed the issue under the Supreme Court's erstwhile Lee/Cleveland Cliffs standing framework. Because 2016 PA 249 specifies that the $2.5 million appropriation for nonpublic schools is to be made from the state's general fund rather than the school aid fund, it is not clear that Michigan public school districts or other allied plaintiffs would be able to demonstrate a concrete and particularized injury under Lee/Cleveland Cliffs.
However, in LSEA v Lansing Board of Ed, 487 Mich 349; 792 NW2d 686 (2010), a four-justice majority of the Michigan Supreme Court revisited the issue of standing, reversing the Lee/Cleveland Cliffs framework and returning to a less-stringent, prudential doctrine of standing that is more consistent with Michigan law and constitutional history. For instance, the LSEA Court held that "a litigant has standing whenever there is a legal cause of action." MCL 600.2041(3) creates a legal cause of action for certain taxpayers "to prevent the illegal expenditure of state funds or to test the constitutionality of a statute relating thereto," and the former Court of Appeals holding that MCL 600.2041(3) can only confer standing if the Lee/Cleveland Cliffs framework is first satisfied must now be called into serious question in light of LSEA. Moreover, 2016 PA 249 is an appropriations act, and it is therefore self-evident that the expenditure of funds is not merely incidental to its implementation. See Shavers v Attorney General, 402 Mich 554, 587; 267 NW2d 72 (1978).
In sum, although the issue is far from settled, I believe it will be possible to find one or more plaintiffs with standing to challenge the constitutionality of the appropriation set forth in § 152b of 2016 PA 249. It is now up to the supporters of public education and good government to find those plaintiffs and file suit in an attempt to stop this unconstitutional expenditure of state money.