Cain v. Horne

SUPREME COURT OF ARIZONA
En Banc

VIRGEL CAIN, SANDY BAHR, SCOTT ) Arizona Supreme Court
HOLCOMB, ARIZONA ASSOCIATION OF ) No. CV-08-0189-PR
SCHOOL BUSINESS OFFICIALS, )
ARIZONA EDUCATION ASSOCIATION, ) Court of Appeals
ARIZONA FEDERATION OF TEACHER ) Division Two
UNIONS, ARIZONA PARENT TEACHER ) No. 2 CA-CV 07-0143
ASSOCIATION, ARIZONA RURAL )
SCHOOLS ASSOCIATION, ARIZONA ) Maricopa County
SCHOOL ADMINISTRATORS, INC., ) Superior Court
ARIZONA SCHOOL BOARDS ) No. CV2007-002986
ASSOCIATION, AMERICAN CIVIL )
LIBERTIES UNION OF ARIZONA, and )
PEOPLE FOR THE AMERICAN WAY, )
) O P I N I O N
Plaintiffs/Appellants, )
)
v. )
)
TOM HORNE, in his capacity as )
Superintendent of Public )
Instruction, )
)
Defendant/Appellee, )
)
and )
)
JESSICA GEROUX, ANDREA WECK, )
KRISTINA PETERSON, KIMBERLY )
WUESTENBERG, EDWIN RIVERA, and )
MIKE and SHIRLEY OKAMURA, )
)
Intervenors/Appellees. )
)
_________________________________ )

Appeal from the Superior Court in Maricopa County
The Honorable Bethany G. Hicks, Judge

REVERSED AND REMANDED
________________________________________________________________

Opinion of the Court of Appeals, Division Two
218 Ariz. 301, 183 P.3d 1269 (App. 2008)

VACATED
________________________________________________________________

MILLER, LASOTA & PETERS, P.L.C. Phoenix
By Donald M. Peters
Wendy Lee Kim

And

THOMAS W. PICKRELL, ATTORNEY AT LAW Mesa
By Thomas W. Pickrell

And

ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST Phoenix
By Timothy M. Hogan
Attorneys for Virgel Cain, Sandra Bahr, Scott Holcomb,
Arizona Association of School Business Officials,
Arizona Education Association, Arizona Federation of
Teacher Unions, Arizona Parent Teacher Association,
Arizona Rural Schools Association, Arizona School
Administrators, Inc., Arizona School Boards Association,
American Civil Liberties Union of Arizona, and People
for the American Way

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Paula S. Bickett, Chief Counsel, Civil Appeals
William A. Richards, Assistant Attorney General
Chad B. Sampson, Assistant Attorney General
Attorneys for Thomas C. Horne, Superintendent of Public
Instruction

LAW OFFICES OF THOMAS A. ZLAKET, P.L.L.C. Tucson
By Thomas A. Zlaket

And

INSTITUTE FOR JUSTICE Tempe
By Timothy D. Keller
Jennifer M. Perkins
Attorneys for Jessica Geroux, Andrea Weck, Kristina
Peterson, Kimberly Wuestenberg, Edwin Rivera, Mike
Okamura and Shirley Okamura

2

PACIFIC LEGAL FOUNDATION Sacramento, CA
By James S. Burling
Attorneys for Amici Curiae Pacific Legal Foundation
and Arizona Autism Coalition

ARIZONA CENTER FOR DISABILITY LAW Tucson
By JoAnn Sheperd
Attorneys for Amicus Curiae Arizona Center for
Disability Law

George H. King Chandler
Attorney for Amicus Curiae Chrysalis Academy
Parents Association

CENTER FOR ARIZONA POLICY Phoenix
By Cathi W. Herrod
Peter A. Gentala
Deborah M. Sheasby
Attorneys for Amicus Curiae Center for
Arizona Policy

WINSTON & STRAWN, L.L.P. Washington, DC
By Steffen N. Johnson
Adéle H. Auxier

And

SCHARF-NORTON CENTER FOR CONSTITUTIONAL LITIGATION Phoenix
By Clint Bolick
Jackson Moll
Attorneys for Amici Curiae Alliance for School Choice,
American Legislative Exchange Council, Black Alliance
for Educational Options, Friedman Foundation for
Educational Choice, and The Hispanic Council for
Reform and Educational Options

DLA PIPER,(US) L.L.P. Phoenix
By Cynthia A. Ricketts
Attorneys for Amicus Curiae Americans United
for Separation of Church and State

ORRICK, HERRINGTON & SUTCLIFFE, L.L.P. San Francisco, CA
By Walter F. Brown, Jr.
Raymond G. Mullady, Jr. Washington, DC
Lindsay E.G. Simmons

And
3

ALLIANCE DEFENSE FUND LAW CENTER Scottsdale
By Benjamin W. Bull
Jeremy David Tedesco
Attorneys for Amicus Curiae Father’s Heart
Christian School

SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Phoenix
By Timothy J. Casey
Attorneys for Amicus Curiae The Becket Fund for
Religious Liberty
________________________________________________________________

R Y A N, Justice

¶1 Article 2, Section 12, of the Arizona Constitution

provides that “[n]o public money . . . shall be appropriated to

any religious worship, exercise, or instruction, or to the

support of any religious establishment.” Article 9, Section 10,

of the Arizona Constitution states that “[n]o tax shall be laid

or appropriation of public money made in aid of any church, or

private or sectarian school, or any public service corporation.”

The issue before us is whether two state-funded programs violate

these provisions of our constitution.

I

A

¶2 In 2006, the Legislature enacted two programs that, in

part, appropriated state monies to allow students to attend a

private school of their choice instead of the public school in

the district in which they live. See 2006 Ariz. Sess. Laws, ch.

340, §§ 1-2 (2d Reg. Sess.) (“Arizona Scholarship for Pupils

4

with Disabilities”); id., ch. 358, §§ 1-4 (2d Reg. Sess.) (“The

Displaced Pupils Grant Program”). The Legislature appropriated

$2.5 million for each program. 2006 Ariz. Sess. Laws, ch. 340,

§ 2 (2d Reg. Sess.); id., ch. 358, § 3 (2d Reg. Sess.).

¶3 The Arizona Scholarships for Pupils with Disabilities

Program, codified at Arizona Revised Statutes (“A.R.S.”) §§ 15-

891 to 15-891.06 (Supp. 2008), offers “pupils with disabilities

. . . the option of attending any public school of the pupil’s

choice or receiving a scholarship to any qualified school of the

pupil’s choice.” A.R.S. § 15-891(A).1 Under this program, a

public-school student with a disability may transfer to a

private primary or secondary school, with the State paying a

scholarship up to the amount of basic state aid the student

would generate for a public school district. Id. §§ 15-891, 15-

891.04. A parent of a disabled student may apply for a

scholarship if the pupil attended a public school during the

prior school year, the parent “is dissatisfied with the pupil’s

progress,” and “[t]he parent has obtained acceptance for

admission of the pupil to a qualified school.” Id. § 15-

891(B)(1) & (2). A “‘[q]ualified school’ means a

nongovernmental primary or secondary school or a preschool for

handicapped students that is located in this state and that does

1
The portion of this statute permitting disabled students
the option of attending a public school of their choice is not
at issue in this case.
5

not discriminate on the basis of race, color, handicap, familial

status or national origin.” Id. § 15-891(F)(2). The program

also requires school districts to notify parents of their

options, including enrolling in another school in the district.

Id. § 15-891.01(A).

¶4 The Arizona Displaced Pupils Choice Grant Program,

codified at A.R.S. §§ 15-817 to 15-817.07 (Supp. 2008) and 43-

1032 (Supp. 2008), allows the State to pay $5,000 or the cost of

tuition and fees, whichever is less, for children in foster care

to attend the private primary or secondary school of their

choice.2 Id. §§ 15-817.02, 15-817.04. The program is limited to

500 pupils. Id. § 15-817.02(C). A grant school is “a

nongovernmental primary school or secondary school or a

preschool . . . that does not discriminate on the basis of race,

color, handicap, familial status or national origin, that

maintains one or more grade levels from kindergarten through

grade twelve . . . .” Id. § 15-817(3).

¶5 Sectarian and nonsectarian schools may participate in

both programs; schools are not required to alter their “creed,

practices or curriculum” in order to receive funding. Id. §§

2
A “grant school is not required to accept the grant as full
payment for the educational and related services that [it]
provides to that qualifying pupil and may charge the . . . pupil
an additional amount representing the balance of the tuition and
fees that remains payable after crediting the . . . pupil with
the amount of the grant.” A.R.S. § 15-817.03(B).
6

15-817.07(B), 15-891.02, 15-891.05(B). Under both programs,

(collectively “the voucher programs”) parents or legal guardians

select the private or sectarian school their child will attend.

Id. §§ 15-817.01(D), 15-891(B). The State then disburses a

check or warrant to the parent or guardian, who must

“restrictively endorse” the instrument for payment to the

selected school. Id. §§ 15-817.05, 15-891.03(F).

B

¶6 Virgel Cain and others (“Cain”) filed a complaint in

Maricopa County Superior Court seeking to enjoin implementation

of the voucher programs. Cain named Tom Horne, the

superintendant of schools, as the defendant. Cain alleged that

the voucher programs were facially unconstitutional under

Article 2, Section 12, and Article 9, Section 10 of the Arizona

Constitution. Horne and various intervenors moved for judgment

on the pleadings, which the superior court granted, dismissing

the complaint with prejudice.

¶7 On appeal, the court of appeals held that the voucher

programs did not violate Article 2, Section 12. Cain v. Horne,

218 Ariz. 301, 306, ¶ 11, 183 P.3d 1269, 1274 (App. 2008). The

court concluded, however, that the voucher programs violated

Article 9, Section 10. Id. at 310, ¶ 23, 183 P.3d at 1278.

¶8 Horne and the intervenors petitioned for review,

contending that the court of appeals erred in concluding that
7

the voucher programs violated Article 9, Section 10. Cain

cross-petitioned for review, arguing that the court erred in

holding that the voucher programs did not violate Article 2,

Section 12.

¶9 We granted review of both petitions because this is a

matter of first impression and of statewide importance. We

exercise jurisdiction under Article 6, Section 5.3 of the

Arizona Constitution and A.R.S. § 12-120.24 (2003).

II

A

¶10 In interpreting a constitutional provision, “[o]ur

primary purpose is to effectuate the intent of those who framed

the provision.” Jett v. City of Tucson, 180 Ariz. 115, 119, 882

P.2d 426, 430 (1994). In doing so, “we first examine the plain

language of the provision.” Id. (citation omitted). We do not

depart from the language unless the framers’ intent is unclear.

Fairfield v. Foster, 25 Ariz. 146, 151, 214 P. 319, 321 (1923).

“Each word, phrase, clause, and sentence must be given meaning

so that no part will be void, inert, redundant, or trivial.”

City of Phoenix v. Yates, 69 Ariz. 68, 72, 208 P.2d 1147, 1149

(1949). When a provision is not clear, we can consider “the

history behind the provision, the purpose sought to be

accomplished by its enactment, and the evil sought to be

remedied.” McElhaney Cattle Co. v. Smith, 132 Ariz. 286, 290,
8

645 P.2d 801, 805 (1982) (citation omitted). “The provisions of

[our] constitution are mandatory, unless by express words they

are declared to be otherwise.” Ariz. Const. art. 2, § 32.

B

¶11 The court of appeals referred to Article 2, Section 12

as the “Religion Clause.” Cain, 218 Ariz. at 305, ¶ 6, 183 P.3d

at 1273. The court reasoned that our decisions in Kotterman v.

Killian, 193 Ariz. 273, 287, ¶ 46, 972 P.2d 606, 620 (1999), and

Community Council v. Jordan, 102 Ariz. 448, 451-52, 432 P.2d

460, 463-64 (1967), suggest that Arizona’s Religion Clause is

“virtually indistinguishable from the United States Supreme

Court’s interpretation of the federal Establishment Clause.”

Cain, 218 Ariz. at 306, ¶ 8, 183 P.3d at 1274.

¶12 The Supreme Court’s Establishment Clause jurisprudence

has upheld programs that permit state funds to flow to religious

institutions as a result of the genuinely independent and

private choice of aid recipients. See, e.g., Zelman v. Simmons-

Harris, 536 U.S. 639, 649 (2002) (distinguishing between aid to

religious schools and “programs of true private choice, in which

government aid reaches religious schools only as a result of the

genuine and independent choices of private individuals”);

Witters v. Wash. Dep’t of Servs. for Blind, 474 U.S. 481, 487

(1986). Given its conclusion that the Religion Clause is

coextensive with the federal Establishment Clause, the court of
9

appeals rejected Cain’s Religion Clause arguments, noting that

the voucher programs neither favor “one religion over another

nor religion over nonreligion[,]” because “[the] parents . . .

make an independent . . . choice to direct the funds to a

particular school.” Cain, 218 Ariz. at 306-07, ¶ 11, 183 P.3d

at 1274-75.

¶13 The court of appeals described Article 9, Section 10,

as the “Aid Clause.” Id. at 305, ¶ 6, 183 P.3d at 1273. It

noted that

although there may be some overlap between these
clauses, the Religion Clause – Arizona’s analog to the
federal Establishment Clause – was intended to ensure
the separation of church and state, whereas the Aid
Clause – which has no equivalent in the United States
Constitution – was aimed at placing restrictions on
the disbursement of public funds to specified
institutions, both religious and secular.

Id. The court thus concluded that the “plain text” of the Aid

Clause required it to find the school voucher programs violated

that clause. Id. at 310, ¶ 23, 183 P.3d at 1278. It reached

this conclusion in part because schools, whether sectarian or

nonsectarian, are “aided by tuition payments.” Id. at 308, ¶

18, 183 P.3d at 1276.

C

¶14 Horne and the intervenors argue that the Aid Clause

should be interpreted just as the United States Supreme Court

has interpreted the Establishment Clause of the United States

10

Constitution, and that the parental choice involved in signing

the state checks over to a private or sectarian school saves the

voucher programs from unconstitutionality.

¶15 Horne first argues that the Aid and Religion Clauses

must be interpreted similarly because our previous case law has

considered them together. See Kotterman, 193 Ariz. at 287-88,

¶¶ 46-50, 972 P.2d at 620-21; Jordan, 102 Ariz. at 451, 432 P.2d

at 463. But see Pratt v. Ariz. Bd. of Regents, 110 Ariz. 466,

468-69, 520 P.2d 514, 516-17 (1974) (considering Article 2,

Section 12 in isolation).

¶16 Our only two cases addressing these clauses, however,

did not correlate the two clauses as explicitly as Horne

contends. For example, Kotterman held only that tax credits for

contributions to school tuition organizations were not

appropriations of public money and therefore did not violate

either clause. 193 Ariz. at 287-88, ¶¶ 44-50, 972 P.2d at 620-

21. Thus, the Court did not address any difference between the

Religion Clause and the Aid Clause. Similarly, although Jordan

referred to both clauses, it focused on whether the state could

contract with religious organizations to provide entirely non-

denominational services to Arizona residents. 102 Ariz. at 451,

432 P.2d at 463 (stating that the issue before the Court was

“whether the state . . . can choose to do business with and

discharge part of its duties through denominational or sectarian
11

institutions without contravening constitutional prohibitions”).

We held there that “[t]he ‘aid’ prohibited in the constitution

of this state is . . . assistance in any form whatsoever which

would encourage . . . the preference of one religion over

another, or religion per se over no religion.” Id. at 454, 432

P.2d at 466; see also id. at 456, 432 P.2d at 468 (stating that

if the beneficiaries could not obtain aid without attending

“chapel services,” it “would render unconstitutional the

payments . . . to the Salvation Army”).

¶17 Contrary to Horne’s assertion, Kotterman and Jordan do

not compel us to interpret the Aid Clause as a mirror image of

the Religion Clause or to interpret the Aid Clause as no broader

than the federal Establishment Clause. More importantly, both

the text and purpose of the Aid Clause support the conclusion

that the clause requires a construction independent from that of

the Religion Clause.

¶18 First, the text of the Aid Clause encompasses more

than does the Religion Clause. The Aid Clause prohibits the use

of public funds not only to aid private or sectarian schools,

but to aid public corporations as well. Ariz. Const. art. 9, §

10. Thus, under the Aid Clause, a statute granting funds to aid

a public service corporation engaged exclusively in secular

activities might be prohibited; such a statute would pose no

difficulties under the Religion Clause, nor could it be readily
12

analyzed under the Supreme Court’s Establishment Clause

jurisprudence. Likewise, the Religion Clause would prohibit an

appropriation to pay for religious instruction in a public

school, but the Aid Clause says nothing about such an

appropriation, as public schools are not among the forbidden

recipients of appropriations under the Aid Clause.

¶19 Second, although the two clauses overlap to some

extent, they serve different purposes. The Religion Clause

appears in Article 2, entitled “Declaration of Rights,” and

reinforces other provisions in the constitution “dealing with

the separation of church and state.” John D. Leshy, The Arizona

State Constitution: A Reference Guide 52 (1993). The Aid Clause

is found in Article 9, entitled “Public Debt, Revenue, and

Taxation,” and “[u]nlike [Article 2, Section 12] . . . prohibits

public aid to private nonsectarian schools and to public service

corporations.” Id. at 216. The Aid Clause is thus primarily

designed to protect the public fisc and to protect public

schools.

¶20 The floor debates at the 1910 constitutional

convention involved little discussion about these clauses. The

Records of the Arizona Constitutional Convention of 1910 660,

894, 940 (John S. Goff ed., 1991) (hereafter “Records”).

Nevertheless, those debates make clear that our framers

considered public education of prime importance. Records,
13

supra, at 523-38, 945, 960 (discussing requirements for public

education in Arizona); John D. Leshy, The Making of the Arizona

Constitution, 20 Ariz. St. L.J. 1, 96 (1988). Indeed, the

framers created a separate constitutional article on the

subject. See Ariz. Const. art. 11, §§ 1-10.

¶21 The framers plainly intended that Arizona have a

strong public school system to provide mandatory education. The

Aid Clause furthers this goal by prohibiting appropriation of

funds from the public treasury to private schools.

[B]y prohibiting state financial support for
any private school, whether or not it is
religious in nature, article IX, section 10,
seems designed . . . to help insure that the
Arizona state legislature adequately meets
its affirmative constitutional obligation
under article XI, section 1 – an obligation
found nowhere in the United States
Constitution – to “provide for the
establishment and maintenance of a general
and uniform public school system.”

Paul Bender et al., The Supreme Court of Arizona: Its 1998-99

Decisions, 32 Ariz. St. L.J. 1, 18 (2000).

D

¶22 Both the Aid and Religion Clauses prohibit certain

appropriations of public money. In Kotterman, this Court

addressed whether tax credits for contributions to organizations

providing scholarships to students attending non-governmental

schools violated the two clauses. 193 Ariz. at 276-77, ¶ 1, 972

P.2d at 609-10. We held that neither provision precluded the
14

Legislature from granting a tuition tax credit, because the tax

credit was not an appropriation. “An appropriation earmarks

funds from the general revenue of the state for an identified

purpose or destination.” Id. at 287, ¶ 45, 972 P.2d at 620

(internal quotations omitted); see also League of Ariz. Cities &

Towns v. Martin, ___ Ariz. ___, ___, ¶ 15, 201 P.3d 517, 521

(2009) (defining appropriation). Because the funds in Kotterman

were credits against tax liability, not withdrawals from the

state treasury, the funds were never in the state’s treasury;

therefore, the credits did not constitute an appropriation.

Kotterman, 193 Ariz. at 287, ¶ 45, 972 P.2d at 620.

¶23 Unlike the funds in Kotterman, the funds at issue here

are withdrawn from the public treasury and earmarked for an

identified purpose. See Black & White Taxicab Co. v. Standard

Oil Co., 25 Ariz. 381, 399, 218 P. 139, 145 (1923). Horne and

the intervenors do not dispute that the vouchers therefore

constitute appropriations of public funds. But, citing Jordan,

they argue that the funds do not aid the schools; rather they

characterize the funds as aid to students under a “true

beneficiary” theory.

E

¶24 Under the true beneficiary theory, individuals

benefitted by a government program, rather than the institution

receiving the public funds, are characterized as the true
15

beneficiaries of the aid. For example, in Jordan, we held that

using state funds to partially reimburse the Salvation Army’s

expenses in providing emergency aid to those in need did not

violate the Aid Clause. 102 Ariz. at 454, 432 P.2d at 466

(“‘Aid’ in the form of partially matching reimbursement for only

the direct, actual costs of materials given entirely to third

parties of any or no faith or denomination and not to the church

itself is not the type of aid prohibited by our constitution.”).

Jordan thus stands for the proposition that an entity covered by

the Aid Clause may contract with the State to provide non-

religious services to members of the public when such an entity

“merely [acts as] a conduit and receives no financial aid or

support therefrom.” Id. at 456, 432 P.2d at 468.

¶25 The voucher programs, however, vary significantly from

the program at issue in Jordan. In contrast to the program in

Jordan, the voucher programs do not provide reimbursement for

contracted services. See id. at 450, 432 P.2d at 462 (observing

that payments by the State to the Salvation Army represented

“relief expenditures made by the Salvation Army”). In fact,

they are designed in such a way that the State does not purchase

anything; rather it is the parent or the guardian who exercises

sole discretion to contract with the qualified school. See

A.R.S. §§ 15-817.01(A), 15-817.05, 15-891.03(F), 15-891.04(F).

Moreover, as Jordan noted, when “the state is paying less than
16

the actual cost of food, lodging, clothing, transportation, cash

assistance, laundry and cleaning given to the destitute in

emergency situations and paying nothing for administration,

there is not an unconstitutional aiding of the conduit through

which such things are made available.” 102 Ariz. at 456, 432

P.2d at 468 (emphasis added). The voucher programs do not have

comparable limitations.

F

¶26 The Aid Clause flatly prohibits “appropriation of

public money . . . in aid of any . . . private or sectarian

school.” Ariz. Const. art. 9, § 10. No one doubts that the

clause prohibits a direct appropriation of public funds to such

recipients. For all intents and purposes, the voucher programs

do precisely what the Aid Clause prohibits. These programs

transfer state funds directly from the state treasury to private

schools. That the checks or warrants first pass through the

hands of parents is immaterial; once a pupil has been accepted

into a qualified school under either program, the parents or

guardians have no choice; they must endorse the check or warrant

to the qualified school. See A.R.S. §§ 15-817.05, 15-891.04(F).

¶27 Thus, given the composition of these voucher programs,

applying the true beneficiary theory exception would nullify the

Aid Clause’s clear prohibition against the use of public funds

to aid private or sectarian education. See Cal. Teachers Ass’n
17

v. Riles, 632 P.2d 953, 960 (Cal. 1981) (finding that the true

beneficiary doctrine would justify any type of aid to sectarian

schools because “practically every proper expenditure for school

purposes aids the child”) (internal citation omitted); Gaffney

v. State Dep’t of Educ., 220 N.W.2d 550, 556 (Neb. 1974)

(examining a similarly worded “aid” clause and holding that

application of the true beneficiary theory “would lead to total

circumvention of the principles of our [state] Constitution”);

cf. Hartness v. Patterson, 179 S.E.2d 907, 909 (S.C. 1971)

(rejecting argument that tuition grants “do not constitute aid

to the participating schools” and noting that “[although]

tuition grant[s] aid[] the student, [they are] also of material

aid to the institution to which it is paid”).

¶28 In sum, the language and purpose of the Aid Clause do

not permit the appropriations these voucher programs provide; to

rule otherwise would allow appropriations that would amount to

“aid of . . . private or sectarian school[s],” Ariz. Const. art.

9, § 10, and render the clause a nullity.3

3
With respect to the Displaced Pupils Choice Grants Program,
the Legislature stated that “[a] grant . . . constitutes a grant
of aid to a qualifying pupil through the pupil’s respective
custodian and not to the grant school.” A.R.S. § 15-817.01(B).
We are not bound by such statements; it is our obligation to
decide if legislation violates the constitution. See Chevron
Chem. Co. v. Superior Court, 131 Ariz. 431, 440, 641 P.2d 1275,
1284 (1982) (citing Ogden v. Blackedge, 6 U.S. (2 Cranch) 272,
277 (1804)). The Legislature made no such statement as to the
Arizona Scholarships for Pupils with Disabilities Program.
18

G

¶29 The voucher programs appear to be a well-intentioned

effort to assist two distinct student populations with special

needs. But we are bound by our constitution. There may well be

ways of providing aid to these student populations without

violating the constitution. But, absent a constitutional

amendment, because the Aid Clause does not permit appropriations

of public money to private and sectarian schools, the voucher

programs violate Article 9, Section 10 of the Arizona

Constitution.4

III

¶30 Cain requests attorneys’ fees under A.R.S. § 35-213

(2000). Under this statute, taxpayers are entitled to bring an

action on behalf of the state if (1) they request that the

Attorney General bring the action on the citizens’ behalf and

wait sixty days to determine whether the Attorney General will

heed the request, (2) they are taxpayers in the State of

Arizona, and (3) they execute a bond payable to the defendant in

the action and prosecute the action with “diligence and

finality.” Id. If the taxpayer prevails in the action “the

court shall allow him costs and reasonable attorney’s fees, not

4
Because we conclude that these programs violate the Aid
Clause, we need not address Cain’s cross-petition for review
challenging the court of appeals’ conclusion that these programs
did not violate Article 2, Section 12.
19

to exceed forty per cent of the amount recovered or saved to the

state, as the case may be.” Id. § 35-213(C).

¶31 In this case, Cain and the other plaintiffs satisfied

all statutory requisites. Once this matter is final, they must

be reimbursed for their expenses and reasonable attorneys’ fees

not to exceed forty per cent of the amount saved by the State by

way of this action. See id.

IV

¶32 For the foregoing reasons, we reverse the judgment of

the superior court and vacate the court of appeals’ opinion. We

remand to the superior court for further proceedings consistent

with this opinion.5

_______________________________________
Michael D. Ryan, Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Andrew D. Hurwitz, Justice

5
On June 27, 2008, we granted the intervenors’ “Motion for
Order Preserving Status Quo” to permit the Superintendent of
Public Instruction to continue to fund the voucher programs as
to children who participated in the programs during the 2007-
2008 school year and who applied to participate in the programs
for 2008-2009. This opinion does not affect that order.
20

_______________________________________
W. Scott Bales, Justice

_______________________________________
Ann A. Scott Timmer, Chief Judge*

*Chief Justice Ruth V. McGregor has recused herself from this
case. Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable Ann A. Scott Timmer, Chief Judge of
the Arizona Court of Appeals, Division One, was designated to
sit in this matter.

21