In the world of public policy, battles can be long, drawn out and last for years, but eventually we do get a resolution, and in this case, a resounding victory.
I’m talking about the case of Espinoza v. Montana Department of Revenue, a two-year old court case resulting from the Bullock administration’s attempts to block a school choice bill that was passed by the 2015 legislature. As you may recall, Senate Bill 410 was a bill to allow tax credits for donations to organizations that provide scholarships for students to attend private schools, including private religious schools. No state dollars are involved. It’s simply a tax credit. After the bill was passed, the Department of Revenue stepped in and declared private religious schools to be ineligible. This is patent viewpoint discrimination, and our side threatened to sue. Attorney General Tim Fox told the Department of Revenue that their petition was indefensible, and if they were sued, then they were on their own. Not only were they sued, but they were sued in both State and Federal court.
The Federal case was put on hold until the complaint at the State level was resolved. Our team included lawyers from the Institute for Justice and John Mercer, former U.S. Attorney for the District of Montana. We moved to enjoin the Department of Revenue’s actions because similar cases in other states had already settled this issue in our favor, including a case that went all the way to the U.S. Supreme Court. In what turned out to be a serious waste of taxpayer dollars, the Department of Revenue refused to back down, and the case proceeded to trial.
The Department of Revenue was destined to lose, and their first clue should have been a strongly-worded decision by District Judge Ortley that laid out a series of reasons why the department’s actions were unconstitutional. The next step was a motion to permanently enjoin the department from enforcing its rules. The only problem was Judge Ortley was retiring.
The department and others filed a series of delay motions hoping to get a more sympathetic judge. It backfired. The case was assigned to Judge Heidi Ulbricht who granted our motion for permanent injunction. In her decision, she wrote that non-refundable tax credits simply do not involve the expenditure of money that the state has in its treasury. They concern money that is NOT in the treasury and NOT subject to expenditure. In short, she said the Department of Revenue incorrectly interpreted the Constitution, which is exactly the argument that we’ve been making in the legislature for the past nine years.
The lesson here is diligence. Forty-three other states had school choice. Montana becomes the 44th. This program now puts parents and students squarely in the driver’s seat. Over 1500 students drop out of Montana schools each year, and this bill will allow them to find a school that works for them. The decision also re-establishes the fact that government cannot discriminate against people based on their religious beliefs.
It was a solid victory for our side. Now we need to take advantage of the program. Please go to Big Sky Scholarships today and make a donation. This is a 100% tax credit. That’s Big Sky Scholarships.org.
