U.S. Supreme Court Invalidates Minnesota Tax Foreclosure Scheme

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Ruling could impact Worcester homeowner’s suit against city and private tax lien buyer

BOSTON – The United States Supreme Court today struck down Minnesota’s tax foreclosure scheme, ruling that a Minnesota homeowner who lost her home to a tax foreclosure was entitled to the surplus from the home’s sale.

In Tyler v. Hennepin County, Geraldine Tyler lost her home valued at $40,000 because she had not paid $15,000 in property taxes.

“The Court sent a clear message today, ruling unanimously that any surplus beyond the tax debt should be returned to the homeowner,” said Pioneer Public Interest Law Center President Frank Bailey.

The Supreme Court’s ruling could affect a Massachusetts case filed in U.S. Bankruptcy Court earlier this month.  There, homeowner Carmen Rodriguez sued the City of Worcester and a tax lien buyer, Tallage Davis, LLC, seeking to invalidate a state statute that allows municipalities to confiscate people’s homes — including all the equity built up over many years — when they fall behind on their real estate taxes.  Ms. Rodriguez is represented by the Pioneer Public Interest Law Center, Morgan, Lewis & Bockius LLP and Greater Boston Legal Services.

Ms. Rodriguez has owned her Worcester home for decades. She raised her family there and paid the mortgage in full.  When she became ill and had to leave her job at the TJ Maxx warehouse where she worked for 37 years, she fell behind in her city real estate taxes, but she was not terribly worried because she owed only about $2,600 and her house was worth $200,000 to $300,000.

Worcester, however, quickly moved ahead with a little-known practice of selling its right to foreclose on Ms. Rodriguez’s home to Tallage Davis, LLC, a Boston-based tax title buyer.  Tallage soon took title to the house and commenced eviction proceedings against Carmen and her son, seeking to remove her from the house during the 2022 holidays.

Ms. Rodriguez continued to make payments to Worcester even after Tallage filed a tax foreclosure, as she was unaware that the company was trying to foreclose on her home.

Ms. Rodriguez is not alone in her efforts to invalidate what many have called the “equity theft process.”  Approximately 13 states have laws that allow equity theft.

In the U.S. Supreme Court case, Geraldine Tyler, an elderly Minnesota woman, lost her home under that state’s statute, which tracks the Massachusetts law.  Like Ms. Rodriguez, Tyler argued that statutes such as these violate state and federal constitutional provisions that prohibit the taking of property without just compensation and the charging of unreasonable fines.  Today’s decision found that Minnesota violated the U.S. Constitution when it took the entire value of her home for the taxes.

“I appreciate that the U.S. Supreme Court ruled that homeowner’s have rights and they should not lose the entire value of their home for a small amount of taxes owed,” Rodriguez said.  “I am fortunate to have great team of lawyers in my corner to show how unjust this is.  Hopefully it will never happen to another homeowner in Massachusetts.”

Carmen Rodriguez was preparing to move out of her home prior to accessing legal assistance.

“The process used by Worcester does not even benefit the city’s citizens, because while Worcester received less than $4,000, Tallage took the deed to Carmen’s home worth about $300,000,” said Todd Kaplan of Greater Boston Legal Services.  “This process makes no economic sense for Massachusetts communities; it only enriches people like those who own Tallage.”

Massachusetts High Court Strikes Down Town’s Civility Code as Unconstitutional

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Read slip opinion Barron vs. Kolenda Read PioneerLegal’s amicus brief

BOSTON, March 7, 2023 — In an opinion that reinforces political speech rights at public meetings throughout the Commonwealth, the Supreme Judicial Court of Massachusetts has declared that Southborough’s civility code governing participation at public meetings violates Article 19 of the Massachusetts Constitution.

Article 19 protects core political speech rights—the right to assemble “in an orderly and peaceable manner. . . to consult upon the common good; give instructions to [the people’s] representatives,” and to request of the government “by way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.”

Exercising her Article 19 rights is just what appellant Louise Barron was attempting to do during the public comment portion of a Southborough town meeting when she was abruptly silenced and threatened with expulsion by town officials who claimed that her criticism of their repeated violations of the Open Meeting Law violated Southborough’s civility code.

“We are delighted that the court has made it absolutely clear that our democratic form of government was founded upon, and still depends upon, our right to freely and peaceably criticize our leaders, and to seek redress of our grievances, without fear of retribution or governmental restraints,” said PioneerLegal staff attorney Selena Fitanides.

The town’s code requires that “[a]ll remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks,” and it warns that [i]nappropriate language . . . will not be tolerated.”

PioneerLegal filed a non-party amicus brief in the case last fall urging the court to rule that civility codes like Southborough’s constitute viewpoint discrimination and, therefore, violate the sacrosanct right to free political expression enshrined in the Massachusetts Constitution.

In a 29-page scholarly opinion, Justice Kafker agreed, writing that “[a]lthough civility can and should be encouraged in political discourse, it cannot be required.” According to our Constitution, “political speech must remain ‘uninhibited, robust, and wide-open.”

PioneerLegal President Frank J. Bailey reacted to the opinion as follows:

“We are convinced that the Barron decision, which marks a high-water mark in free speech rights in the Commonwealth, will have a nationwide impact on the rights of citizens to be heard by their elected officials. We also hope the United States Supreme Court will recognize those same rights in the federal Constitution when given an opportunity.”

PioneerLegal Files Amicus Briefs in Cases That Challenge State Tax Foreclosure Laws

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Urges Supreme Court to hear cases that allow state, private actors, to realize windfall at expense of property owners

BOSTON – PioneerLegal, LLC has filed amicus briefs urging the U.S. Supreme Court to hear two related cases that test the constitutionality of Nebraska and Minnesota laws that permit the state, or a private debt collector as assignee, to take a private home, sell it, and keep the entire proceeds, even if the property sells for much more than the taxes, interest, and costs of collection due for unpaid taxes.

“We’re interested in this question because municipalities in Massachusetts have the very same right to deprive a homeowner of his or her equity in property sold at a tax foreclosure,” said PioneerLegal President Frank Bailey. Bailey added that “these cases most often fall on low income, elderly, and medically challenged homeowners.”

In Kevin Fair v. Continental Resources, the plaintiff lost his home after quitting his job to care for his wife, who had been diagnosed with multiple sclerosis.  Kevin lost the home that was a wedding gift from his late mother.

Scotts Bluff, the Nebraska county in which the Fairs lived sold a tax lien for the Fairs’ unpaid 2014 taxes to a private investor, Continental Resources, for the amount owed — $588.

Continental quietly paid the Fairs’ 2015 and 2016 taxes, all the while tacking a 14 percent interest rate onto the growing tax debt.  Because the county was getting the money it was owed, it stopped sending tax bills to the Fairs and gave them no warning that they were in danger of losing their home.

In April 2018, Continental notified the Fairs that it intended to apply for a tax deed, which would give the company full ownership of the home and leave the Fairs with nothing. The only way to keep their home, said the investor, was to pay $5,268—the total value of unpaid taxes, fees, and interest—within three months’ time.

The Fairs applied for loans to redeem their property, but no lender approved them. The county issued a deed to the investor for the home—including the Fairs’ equity in it—worth around $60,000. The Nebraska law at issue allows private tax collectors to keep such windfalls at the expense of property owners.

In most states, property is sold, the debts are paid, and the remaining proceeds are returned to the former owner. But Nebraska claims that it can ignore the value of the homes it seizes when collecting property tax debts.  Scotts Bluff took the Fairs’ $60,000 home as payment for $5,200.

“Scotts Bluff County owes Kevin Fair just compensation for the additional $55,000 in home equity,” Bailey added.  “That’s far more than the $5,268 tax debt.”

The Fairs lost their case at the state trial court.  In March 2022, the Nebraska Supreme Court denied their due process, takings, and excessive fines claims.  More importantly, Kevin’s wife Terry lost her battle with MS that month.

In the second case, Tyler v. Hennepin County (Minnesota), Geraldine Tyler, a 92-year old widow, lost her home to foreclosure when she could no longer afford the property taxes.  When the taxes mounted to $15,000 the county seized her home and sold it for $40,000.  Rather than paying itself the taxes and fees due and refunding the $25,000 to Ms. Tyler, the county kept the full sale proceeds, thus wiping out the equity that Ms. Tyler had accumulated in her lifetime.

Minnesota law permitted this outcome. From 2014 to 2020, some 1,200 Minnesotans lost their homes and all their equity for tax debts that averaged 8 percent of the home’s value. When Ms. Tyler challenged the law in federal court, the judge dismissed her case saying the state law was constitutional. After the federal Court of Appeals affirmed, Ms. Tyler sought certiorari in the Supreme Court.

PioneerLegal’s amicus brief urges the Court to hear the cases.  It points out that the states’ conduct upends standard commercial law principles that provide for the debtor to enjoy a return of the equity after the state is fully paid, argues that the Nebraska and Minnesota statutes violate the rights of other creditors by allowing the state a windfall while other creditors may get nothing, and that Nebraska and Minnesota tax law runs counter to state and federal law that requires a debtor, such as Mr. Fair and Ms. Tyler, to receive “reasonably equivalent value” upon transfer of property, including in a foreclosure.

The PioneerLegal amicus brief was prepared by Morgan, Lewis & Bockius attorneys Julia Frost-Davies, Stephanie Schuster, Matthew C. Ziegler, and Matthew K. Stiles, together with the assistance of PioneerLegal attorneys Frank J. Bailey and John C. LaLiberte.  PioneerLegal thanks Morgan Lewis for preparing a brief that adds a strong commercial law basis in support of certiorari.

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Public Interest Law Firm Sues to Allow Virtual School Students to Participate in High School Sports

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MIAA rule change prohibits public virtual school students from playing for teams in their home districts

BOSTON – PioneerLegal, a non-profit public interest law firm, has filed suit against the Massachusetts Interscholastic Athletic Association (MIAA) in Norfolk County Superior Court for prohibiting students at a public virtual school from playing on high school sports teams in the students’ home district.

The plaintiff is a Massachusetts high school parent whose child, a student at a statewide virtual high school, has been denied participation in interscholastic athletics. To protect the privacy of the clients, the case was filed under pseudonyms (“Sally and Jimmy Jones”).

TEC Connections Academy Commonwealth Virtual School (TECCA) is an online public school that enrolls 3,000 students from across Massachusetts, 1,650 of whom are in high school. TECCA students had long played on their home district sports teams until the MIAA “reinterpreted” its eligibility rules as of July 1 of this year. The new rule bans students at statewide public virtual schools from playing on sports teams in their home district and even prohibits them from applying for a waiver from the rule.

“Other non-traditional schools – including homeschoolers and even district-based virtual schools – can apply for a waiver and be granted permission to participate,” said PioneerLegal President Frank Bailey. “But TECCA students cannot.”

The student plaintiff played lacrosse for his local high school team in 2021 as a TECCA student, having received an MIAA waiver. Without injunctive relief, he will have to watch this year from the sidelines, or make a painful choice about where to enroll at school.

Virtual schools attract a diverse student body. Some students have found learning in a traditional classroom to be very challenging because of bullying or emotional challenges. Others are highly advanced academically and want the ability to move more quickly. Still others seek the flexibility to train for sports activities or develop a special skill or talent such as acting.

Participating in athletics can be the only way for virtual school students to interact with their peers. For many years they have been eligible to play on teams in their home districts, where their parents often pay taxes.

The MIAA is a private association that creates rules for high school sports in Massachusetts. The fact that most public-school districts are members; its dues are mostly paid with tax dollars; and its board is made up of public employees such as school board members, teachers, superintendents and athletic directors caused the Massachusetts Supreme Judicial Court to rule that it is a “state actor.” That means the MIAA is, for all intents and purposes, acting as the government.

The organization has done little to clarify the reason for its policy change, other than to claim that a virtual school is “no different” than a private school. TECCA is a public school under Massachusetts law.

Bailey added that “the MIAA’s decision requires students to choose between dropping participation in a sport they love or enrolling in a district school, a choice that usually is not in their personal or academic interest.”

One statement from MIAA Executive Director Bob Baldwin may offer insight into the policy change. He said “principals, athletic directors, and guidance personnel should counsel students regarding athletic eligibility prior to committing to non-traditional educational pursuits.”

PioneerLegal is being assisted in this case on a pro bono basis by the law firm of Sullivan & Worcester. The plaintiffs plan to seek an injunction to prevent TECCA students from being prohibited from participating in high school sports during the Fall semester.

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MA Court Misses Opportunity To Reaffirm A Core Pillar Of Democracy

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By not requiring that the Attorney General present an accurate, impartial summary of the tax hike amendment the MA SJC discounts the ideal of an informed voter

BOSTON – Today the Massachusetts Supreme Judicial Court missed an opportunity to reaffirm a basic tenet of American government: An informed electorate is necessary for a healthy democracy. The SJC’s decision will prevent Massachusetts voters from having an accurate description of the tax hike amendment to the state Constitution when they cast their ballots in November.

PioneerLegal filed an amicus brief in support of the lawsuit challenging the Attorney General’s summary language and “yes”/”no” statements that describe the amendment.

The proposed amendment to the state Constitution would add a 4 percent surtax on all annual income over $1 million, including capital gains (sales of homes and other assets) and most small business pass-through income. The proposed summary language put forward by the Attorney General and the Secretary of State reads that revenue from the tax would be dedicated to fund public education and transportation.

“While revenue from the tax would be deposited in transportation and education accounts,” said Frank J. Bailey, President of PioneerLegal, “there is nothing to prohibit lawmakers from diverting money previously dedicated to transportation and education to different purposes, as has occurred in other states.”

Speaking about the need for transparency in the constitutional amendment process, Bailey noted that: “a ballot initiative that seeks to amend the Massachusetts Constitution must be fairly described to voters. Absent an accurate summary of the effect of this vote, homeowners, small business owners, and retirees may well be surprised by the implications of a vote in favor of the amendment. Voters should never be surprised.”

Among the key points in the PioneerLegal brief authored by Daniel P. Ryan, Caroline A. Kupiec, and Jillian Friedmann of Sullivan & Worcester, are:

  • The Attorney General’s own brief on an identical proposal in 2018 conceded that surtax revenues are fungible and may not result in any increase in appropriations for education and transportation. In the argument of the case before the Supreme Judicial Court, the Attorney General’s counsel also conceded this point and Chief Justice Gants made the same point.
  • The Legislature made their intentions crystal clear by rejecting two amendments (by votes of 154-39 and 156-40) requiring new revenues to be invested in addition to existing expenditures.
  • Finally, the brief provides a close analysis of the experience in California, where revenues derived from a similarly “dedicated education” tax largely substituted existing appropriations, which were then diverted to other purposes.

PioneerLegal Applauds Today’s U.S. Supreme Court Decision in Carson v. Makin

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BOSTON – PioneerLegal applauds today’s U.S. Supreme Court decision in Carson v. Makin striking down a Maine law that allows districts without their own public schools to contract with or reimburse the families of students who attend private or public schools located elsewhere, but which explicitly excludes religious schools.

Two years ago, in the 2020 decision, Espinoza v. Montana Department of Revenue, Chief Justice John Roberts wrote in his majority opinion that, “A state need not subsidize private education.  But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

“While the Maine law allowed parents to access the public or private education that best suits their children,” said PioneerLegal President Frank J. Bailey, “its exclusion of religious schools clearly could not pass constitutional muster after Espinoza.”

Again writing for the majority, Chief Justice Roberts found that the “unremarkable” principles in Espinoza suffice to resolve this case and that for the Court to “accept Maine’s argument, our decision in Espinoza would be rendered meaningless.”  Bailey also noted that “a law, such as the one at issue in Carson, that targets religious education will rarely satisfy strict scrutiny analysis.”

For over a century, until the early 1980s, religiously affiliated schools were included in the Maine school choice program.  The Maine Legislature re-codified the program in 1982 to prohibit parents and students from using the law to access religious schools, as was the intention when it was passed in 1873.

“We are thrilled that the law will once again reflect the intent of those who enacted it, as it did for over a century,” said Jamie Gass, Pioneer Institute’s director of school reform.  “This ruling will restore educational opportunity to families across rural Maine.”

PioneerLegal submitted an amicus brief in Carson, and Pioneer Institute submitted an amicus brief in Espinoza, which was cited in Justice Samuel Alito’s concurrence.

For well over a decade Pioneer Institute has highlighted this important legal and educational topic through research, events, op-eds, media appearances, podcast episodes, and a documentary film.

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PioneerLegal Amicus Brief Supports Court Challenge to Attorney General’s Misleading Wording of the Proposed Tax Hike Amendment

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Summary language fails to clarify a critical matter for voters—an overall increase in education and transportation funding is not mandatory since other revenue is entirely fungible

BOSTON – To ensure that Massachusetts voters will have an accurate description of the tax hike amendment to the state Constitution when they cast their ballots in November, PioneerLegal has filed an amicus brief in support of the lawsuit challenging the Attorney General’s summary language and “yes”/”no” statements that describe the amendment. The suit will be heard by the Commonwealth’s Supreme Judicial Court.

The amendment to the state Constitution would add a 4 percent surtax on all annual income over $1 million, including capital gains (sales of homes and other assets) and most small business income. The proposed summary language put forward by the Attorney General and the Secretary of State reads that the revenue from the tax will be dedicated to fund public education and transportation.

“While revenue from the tax would be deposited in transportation and education accounts,” said Brackett Denniston, chairman of PioneerLegal, “there is nothing to prohibit lawmakers from diverting money previously dedicated to transportation and education to different purposes, as has occurred in other states.”

Authored by Daniel P. Ryan, Caroline A. Kupiec, and Jillian Friedmann of Sullivan & Worcester at the request of PioneerLegal, the brief establishes four key points:

  • The Legislature is granted constitutional authority in the budgeting process, which allows it to allocate funding among various budget categories. The brief outlines how the Attorney General’s own brief on an identical proposal in 2018 concedes that surtax revenues are fungible and may not result in any increase in appropriations for education and transportation. In the argument of the case before the Supreme Judicial Court, the Attorney General’s counsel also conceded this point and Chief Justice Gants made the same point (cf. linked video, minute 52:00).
  • The Legislature could have required that surtax revenues be additive to current education and transportation spending but explicitly rejected legislative attempts to do so. During their debates on the proposed ballot measure, legislators made their intentions crystal clear by rejecting two amendments (by votes of 154-39 and 156-40) requiring new revenues to be invested in addition to existing expenditures.
  • A close analysis of the annual budget for education and transportation, which together exceed $18 billion, as well as their component parts — line-item expenditures, dedicated funds, and special obligation bonds — demonstrate this fungibility, based on the Massachusetts Constitution and well established legislative practice.
  • Finally, the brief provides a close analysis of the experience in California, where revenues derived from a similarly “dedicated education” tax largely substituted existing appropriations, which were then diverted to other purposes.

“It is of utmost importance that any ballot initiative that seeks to amend the Massachusetts Constitution is accurately described to voters,” said Denniston. “Absent an accurate summary of the effect of a vote, citizens of the Commonwealth are, in fact, robbed of their voice in the governance of Massachusetts.”

About PioneerLegal

PioneerLegal, LLC is a nonprofit, nonpartisan legal research and litigation entity that defends and promotes educational options, accountable government, and economic opportunity across the Northeast and around the country. Through legal action and public education, PioneerLegal works to preserve and enhance liberties grounded in the constitutions and civil rights laws of the United States and the individual New England states.

New Pioneer Institute Law Center to Focus on Educational Opportunity, Economic Freedom, and Accountable Government

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Retiring U.S. Bankruptcy Court Judge Frank J. Bailey to become first president of PioneerLegal

BOSTON – Pioneer Institute is pleased to announce the formation of PioneerLegal, the first non-profit, public interest law firm of its kind in New England, to defend and promote educational options, accountable government and economic opportunity across the Northeast.

“We aim to create a robust community of professionals committed to leveraging the law to advance equal opportunity and responsive, responsible government,” said Brackett Denniston, PioneerLegal’s chairman. “And we will push back on government entities when they unreasonably limit the right of individuals to grow businesses and jobs in the New England region.”

PioneerLegal’s work will be guided by three principal tenets:

  • Educational opportunity is of cardinal importance in a just and merit-based society.
  • Government power must be transparent, accountable and protective of the rights of citizens.
  • Markets free from unwarranted intrusion and a robust business and jobs market provide the greatest opportunity for the greatest number.

PioneerLegal will achieve its mission through legal research, amicus briefs, and litigation.

PioneerLegal will also offer informational and educational programming relating to litigation, provide research on important legal issues and sponsor educational programs.

Judge Frank J. Bailey, upon his retirement later this year, will become PioneerLegal’s first president. This was made public by the United States Bankruptcy Court for the District of Massachusetts in a press release on February 15, 2022.

“The recruitment of Judge Bailey, together with the reputations of our Board members as fair-minded professionals of high character and expertise, speaks volumes about the quality of work and impact you will see from PioneerLegal,” Denniston said.

PioneerLegal is led by legal professionals of the highest reputation. In addition to Denniston, of Goodwin Procter, its Board of Directors includes:

      • • Jonathan Albano, MorganLewis
        • Former Massachusetts Supreme Judicial Court Justice Robert Cordy, McDermott Will & Emery
        • R. Scott Henderson, Bank of America
        • Frank Jimenez, GE Healthcare
        • Mark Matuschak, WilmerHale
        • Lisa Rickard, U.S, Chamber of Commerce
        • Elke Trilla, Sullivan & Worcester
        • Stan Twardy, Day Pitney

“We are so pleased to have the opportunity to work with such high-caliber legal professionals,” stated Pioneer Institute Executive Director Jim Stergios. “This board will drive an agenda focused on upholding constitutional government, ensuring economic opportunity for all workers and entrepreneurs, and educational opportunity for all children.”

The Institute began incubating a legal initiative in 2015, with notable participation in such cases as Espinoza v. Montana Department of Revenue (U.S. Supreme Court, June 2020), Janus v. American Federation of State, County and Municipal Employees (2019) and Anderson v. Healey (2018). With the establishment of PioneerLegal as a non-partisan organization governed by legal professionals, the Institute will be able to advance strategic litigation to support its mission.

During its history, Pioneer Institute has been instrumental in establishing various social entrepreneurship organizations including the Charter Schools Resource Center, which in 2002 was spun off as Building Excellent Schools, a 501(c)(3) organization focused on training high-quality charter school entrepreneurs across the country and the Partnership for Massachusetts’ Future, a 501(c)(4) advocacy organization.

More information about PioneerLegal can be found at www.pioneerlegal.org.

A video announcement is also available.

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Pioneer Institute is a 501(c)(3) non-profit, non-partisan research institute. Pioneer’s mission is to develop and communicate dynamic ideas that advance prosperity and a vibrant civic life in Massachusetts and beyond. Pioneer’s vision of success is a state and nation where our people can prosper and our society thrive because we enjoy world-class options in education, healthcare, transportation and economic opportunity, and where our government is limited, accountable and transparent. Pioneer values an America where our citizenry is well-educated and willing to test our beliefs based on facts and the free exchange of ideas, and committed to liberty, personal responsibility, and free enterprise.

PioneerLegal is a non-profit, non-partisan, public policy legal research and litigation entity, organized under Section 501c(3) of the Internal Revenue Code. PioneerLegal is a non-partisan, public interest law firm that defends and promotes educational options, accountable government and economic opportunity across the Northeast. Through legal action, including litigation, and public education, PioneerLegal works to preserve and enhance liberties grounded in the constitutions and civil rights laws of the United States and the individual New England states.

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Pioneer Institute Files Amicus Curiae Brief in U.S. Supreme Court School Choice Case

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Challenges Maine statute that excludes religious schools from school tuitioning law  

BOSTON –  Pioneer Institute has filed an amicus curiae brief in Carson v. Makin urging the Supreme Court of the United States to strike down a provision of Maine law. The Court will hear oral arguments in Carson this morning (December 8) at 10 am. The Maine law being challenged allows districts that don’t have their own schools to contract with a school or pay for students that choose to attend public or private schools, but explicitly excludes religious schools.

The Court’s 2020 ruling in Espinoza v. Montana Department of Revenue, a case in which Pioneer also filed an amicus brief that was cited by Justice Samuel Alito in his concurring opinion, Chief Justice John Roberts wrote in his majority decision that “A state need not subsidize private education.  But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

“Maine law allows parents to access the public or private education that best suits their children – except if the school is religiously affiliated,” said Pioneer Institute Executive Director Jim Stergios. “We believe Espinoza makes it clear that such a provision runs counter to the Constitution.”

For over a century, until the early 1980s, religiously affiliated schools were included in the Maine school tuitioning program, under which communities that don’t have their own schools can either contract with a school or allow parents to use the per-pupil spending allotment to attend the public or private school of their choice.

The Maine state legislature, driven by the Senate chair of the education committee, re-codified the program in 1982 to prohibit parents and students from using the law to access religious schools, as was originally intended in 1873.

The Pioneer brief was co-authored by Michael Gilleran of Fisher Broyles and Ryan McKenna. Gilleran also was the lead attorney in Pioneer’s amicus brief in the landmark Espinoza case.

“We believe the Maine law clearly doesn’t pass constitutional muster under Espinoza, Gilleran said.  “I hope this case will reiterate the Court’s position and open educational opportunity to more students across the country.”

The Court is expected to rule on the case before its current term ends at the end of June 2022.

For well over a decade, Pioneer Institute has used its legal work, research, events, polling, and op-eds to highlight nativist, anti-Catholic educational and legal barriers to school choice in Massachusetts and across the country.  In 2018, Pioneer produced a 30-minute documentary, “Big Sacrifices, Big Dreams: Ending America’s Bigoted Education Laws,” that chronicles the struggles of four families in Massachusetts, Michigan, and Georgia, all states with so-called Blaine amendments that prohibit public money from flowing to religiously affiliated schools, to send their children to parochial schools.

About the Author

Michael C. Gilleran is a litigation attorney in Boston, and a partner in the national law firm of FisherBroyles, LLP, who has been active for many years in the cause of educational choice. He is currently Vice-Chair of the Board of Trustees of Thomas More College in New Hampshire and Rome.  Formerly he was Chair of the Advisory Board of Catholic Charities of Greater Boston.   For many years he has received the SuperLawyer© designation from Boston Magazine as well as the AV rating (preeminent) from the national Martindale-Hubbell attorney rating service.  He is the author of a leading book on Massachusetts law, published by the largest national legal publisher, which is frequently cited by Massachusetts courts including the Massachusetts Supreme Judicial Court.  His many legal articles have appeared in such publications as the American Bar Association Journal.   He is frequently asked to give presentations on important issues of Massachusetts law with leading judges.

About Pioneer

Pioneer’s mission is to develop and communicate dynamic ideas that advance prosperity and a vibrant civic life in Massachusetts and beyond. Pioneer’s vision of success is a state and nation where our people can prosper and our society thrive because we enjoy world-class options in education, healthcare, transportation and economic opportunity, and where our government is limited, accountable and transparent. Pioneer values an America where our citizenry is well-educated and willing to test our beliefs based on facts and the free exchange of ideas, and committed to liberty, personal responsibility, and free enterprise.

Pioneer Institute Files Amicus Brief Urging Supreme Court to Hear School Choice Case

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Claims amendment to Montana Constitution motivated by anti-Catholic bias

Contact Micaela Dawson, 617-723-2277 ext. 203 or mdawson@pioneerinstitute.org

BOSTON – Pioneer Institute today announced that it has submitted an amicus curiae urging the United States Supreme Court to hear Espinoza v. Montana Department of Revenue, which challenges a state constitutional amendment marked by religious bias.

The amendment in question is a so-called Blaine amendment. It prohibits public resources from flowing to individuals to send their children to religiously affiliated schools, preventing Catholics and immigrants from receiving the kind of education that would enable them to become successful.

In the Espinoza case, Kendra Espinoza, a suddenly-single mom, sought a better education for her daughters. In public school, one daughter was bullied and the other struggled in her classes. Both children would later thrive in the parochial school of her choice.

Ms. Espinoza’s decision to send her daughters to Stillwater Christian School was not easy and caused her family financial difficulties. Her access to a badly needed scholarship was denied after the Montana Supreme Court struck down a legislatively established education tax credit program. The basis for the court’s decision was the state’s 130-year-old Blaine amendment.

While the money for the scholarships the Espinoza family accessed came from private sources, the Montana Innovative Education Program Credit provided the donors with tax credits for their contributions. According to the Montana Supreme Court, the Blaine amendment prevented Ms. Espinoza’s children from gaining access to the scholarships.

“Acts motivated by religious animus violate the first and 14th amendments to the U.S. Constitution,” said Cornelius Chapman, an attorney and the author of “The Know-Nothing Amendments: Barriers to School Choice in Massachusetts.” “Even if they appear neutral on their face, they are impermissible if designed to persecute or oppress a religion or its practices.”

Legislative history and press coverage of efforts to enact a national Blaine amendment in the 1870s show that Catholicism was clearly the target of amendment proponents.

Sadly, anti-Catholic bias still animated a majority of Congress in 1889, when the enabling act authorizing Montana to form a state constitution required that it include a Blaine provision. The clause forced on Montana by an anti-Catholic Congress exists to this day in substantially unaltered form.

“Kendra Espinoza, like so many other parents, sought the education that best suits the needs of her children,” said Pioneer’s Executive Director Jim Stergios. “It is hard to believe that an amendment steeped in anti-Catholic bias still stands in her way 130 years after its passage.”

Massachusetts was the first of 38 states to adopt Blaine amendments. Two amendments to the Massachusetts Constitution are the work of the virulently anti-Catholic Know-Nothing Party, which came to power in the state elections of 1854, after a wave of Catholic immigrants arrived in the Commonwealth during the Irish Potato Famine.

The Pioneer brief was filed April 12, 2019. It was drafted by a team led by Michael Gilleran of Fisher Broyles and Professor Dwight Duncan of the University of Massachusetts School of Law. They were assisted by Harvard Law School students Annika Boone, Benjamin Fleshman, Anastasia Frane, James McGlone and Grant Newman.

The Court is expected to announce whether it will hear the case by early summer.

In 2018, Pioneer produced a 30-minute documentary, “Big Sacrifices, Big Dreams: Ending America’s Bigoted Education Laws,” that chronicles the struggles of four families in Massachusetts, Michigan, and Georgia, all states with Blaine amendments, to send their children to parochial schools. View the film here.

Pioneer Institute is an independent, non-partisan, privately funded research organization that seeks to improve the quality of life in Massachusetts through civic discourse and intellectually rigorous, data-driven public policy solutions based on free market principles, individual liberty and responsibility, and the ideal of effective, limited and accountable government.

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PioneerLegal is a non-partisan, public interest law firm that defends and promotes educational options, accountable government and economic opportunity across the Northeast. PioneerLegal achieves its mission through legal research, amicus briefs, and litigation.

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