The legal defense of House Bill 93 is taking shape after a series of court orders last week decided who can participate in a lawsuit challenging Idaho’s new private education tax credit.
The Idaho Legislature will defend the tax credit alongside the State Tax Commission. House Speaker Mike Moyle and Senate President Pro Tem Kelly Anthon hired private attorneys from Givens Pursley, a Boise law firm, to represent the Legislature. Attorney General Raúl Labrador’s office is representing the Tax Commission.
On Thursday, the Idaho Supreme Court granted the Legislature’s request to join the lawsuit and defend the program it enacted earlier this year. But the court denied a similar motion to intervene from two national groups that advocate for private school choice and represent Idaho families hoping to qualify for the tax credits. Moyle, a Republican from Star, said Monday that the Legislature intervened because legislative leaders want to ensure “all the information gets out there,” and the attorney general’s office sometimes “misses stuff.” Anthon, R-Rupert, did not immediately respond to a request for comment.
“We want to be involved, since we passed it,” Moyle said. “I wish we didn't have to go through a lawsuit on this, but hopefully we can get it resolved soon and move on.”
The lawsuit seeks to block a $50 million tax credit program that’s scheduled to take effect Jan. 15. The first of its kind in Idaho, the program offers nonpublic school students up to $5,000—or $7,500 if they have special needs—in tax credits covering private school tuition and other education expenses.
The GOP-dominated Legislature narrowly passed HB 93 in February, and Republican Gov. Brad Little signed it into law in March.
Last month, a coalition that includes the Idaho Education Association and Moscow School District asked the Idaho Supreme Court to declare the program unconstitutional. Spending taxpayer funds on private education violates the state constitution’s requirement that the Legislature “establish and maintain a general, uniform and thorough system of public free common schools,” the coalition argues.
The coalition hired Hawley Troxell, a Boise-based law firm, to argue its case. Legal fees will be divided among the petitioners, except the Moscow School District, which is not contributing financially.
It’s unclear how the Legislature plans to pay its attorneys. Legislative leaders in recent years have tapped the state’s “Constitutional Defense Fund” to cover legal fees when a new law faces a court challenge. But there may be other funds available to pay for this lawsuit, Moyle said.
“As of right now, I’m not sure where it’ll come from yet,” he said.
The Idaho Supreme Court issued two other notable orders Thursday:
The court denied a request from the Partnership for Educational Choice — a joint effort between the Institute for Justice and EdChoice — to intervene in the lawsuit. The partnership hoped to defend HB 93 on behalf of three Idaho families that plan to apply for the tax credit.
An order signed by Chief Justice G. Richard Bevan said the families could file a brief in support of the program, but their attorneys will not be allowed to participate if the court asks for oral arguments. Thomas Fisher, executive vice president and director of litigation at EdChoice Legal Advocates, plans to file an amicus brief, an EdChoice spokesperson said Monday.
“We’re grateful for the opportunity to stand with Idaho families and make sure their voices are heard," Fisher said through the spokesperson. "This program represents real opportunity for parents and students across the state, and we remain deeply committed to defending their right to choose the education that works best for them.”
The Supreme Court also approved a request from the attorney general’s office to extend a filing deadline. Justices had directed state attorneys to respond by Oct. 10. After Labrador’s office said the deadline was “not practicable,” the court last week agreed to push it back by a month.
Originally published by Idaho Ed News.