Education savings accounts initiative unconstitutional, judge says

For the second time in a month, a senior judge sitting in Carson City has struck down an initiative that sought to create education savings accounts in Nevada, and for the same reason: an unfunded mandate.

Senior Judge Charles M. McGee ruled Monday that an initiative that would have amended Nevada law to create special “education freedom accounts” administered by the state treasurer, which parents could use for education expenses including private school tuition, textbooks, tutoring and fees, is unconstitutional because it fails to identify funding for the measure.

Nevada’s constitution requires initiatives that call for spending money to identify the source of that money. Although the initiative said that it did not compel the Legislature to fund the program and that accounts depended on lawmakers approving money, the judge ruled the measure still failed to meet the constitutional requirement.

“It (the state constitution) says nothing about the right or latitude to postpone funding to a date out in the future, which will require yet another statute,” the ruling said. “What it does say, is that this bill, any bill, that creates a statute must simultaneously impose a tax, or identify a legal revenue source! The (Education Freedom for Nevada PAC)’s effort to amend (state law) cannot be permitted because there is no contemporaneous identification of a finite revenue source to fund the proposal.”

The ruling further orders the petition’s authors not to circulate the petition to voters. They have the option of appealing to the Nevada Supreme Court.

Erin Phillips, chairwoman of the PAC behind the initiative, didn’t return a call for comment on Tuesday.

The Monday ruling was similar to an April 11 decision by McGee that held a constitutional amendment initiative to create education savings accounts was unconstitutional, in part because it failed to name a funding source.

In 2015, the Republican-controlled Legislature passed an education savings account bill, which would have allowed parents to use public school funds for education expenses. A lawsuit invalided the measure because of problems with how it was funded, and a Democratic Legislature repealed the program in 2019 over Republican objections.

The court also ruled Monday that the initiative’s description of effect was defective, but that it could have been saved. “This court believes that if the Court and counsel would spend a day massaging the language of the (description of effect), there is a very realistic probability that the document could be revised in a manner that is satisfactory to both sides.” Because of the funding defect, however, the initiative as a whole is “incurable,” the judge ruled.

Contact Steve Sebelius at SSebelius@reviewjournal.com. Follow @SteveSebelius on Twitter.

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