HELENA — All 150 Montana lawmakers will be asked in a rarely conducted poll of the Legislature to vote on whether the state Department of Revenue undermined a school-choice law by excluding religious schools from the new tax-credit program.
The poll will be mailed on Tuesday to decide whether the revenue department’s proposed rule guiding the new law goes against the intent of the bill that passed in April, Sen. Fred Thomas, R-Stevensville, said Friday.
The poll’s results will be published with the department’s final rule for the law, which goes into effect Jan. 1. If a majority of lawmakers in both the House and Senate vote that the rule doesn’t follow the Legislature’s intentions, the results can be used as evidence in a lawsuit challenging the final rule.
“It does not have a legal effect on the rule, but it has the effect that this could be used in court to say the rule is contrary to legislative intent,” Thomas said.
The new law allows tax credits for donations of up to $150 to private school scholarships or to innovative educational programs in public schools, up to $3 million in the first year. The revenue department’s proposed rules exclude religious schools on the grounds that the Montana Constitution bars appropriations to sectarian schools, organizations or affiliated groups.
The last time a poll of the Legislature was conducted was in 2005. State law requires a poll if 20 or more lawmakers object to a proposed rule while the Legislature is out of session.
Thomas, who is the chairman of the Revenue and Transportation Interim Committee, said 52 lawmakers had sent written objections to him as of Thursday.
The letters appeared to be identical, effectively saying the aim of the bill was to give educational opportunities to all children, not only those who attend secular schools.
A counter-campaign to vote to uphold the revenue department’s rule has already begun. Forty-one Democratic lawmakers sent their colleagues a letter this week that said the Legislature knew about the constitutional questions but did not take a position.
The Legislature deliberately left the matter to the revenue department to decide, the Democratic lawmakers argued.
“If the legislature intended for the Department to interpret the constitution in a particular way, it should have said so,” the letter said.
Department officials held a public hearing Thursday in which attorneys for and representatives of religious organizations criticized them for unilaterally deciding whether the law is constitutional, rather than leaving it to the courts. They also argued that the tax credits are not appropriations that are barred under the Montana Constitution.
Public-school advocates pointed out that the bill itself says the law must be administered in compliance with the provisions of the constitution that prohibit making appropriations to religious schools.
Department officials originally planned to submit their final rule to the Secretary of State’s Office on Nov. 30, but agreed to delay the submission until Dec. 14 to allow the legislative poll to be completed, Deputy Revenue Director Gene Walborn said.