Manchester attorney Ed Mosca, a noted constitutional attorney in NH, has written this analysis of the pending school voucher program case before the NH Supreme Court.  This Wednesday, April 16th, the Supreme Court of New Hampshire (“SCONH”) will hear arguments in Duncan et al. v. State

Ed Mosca, Esq.

Ed Mosca, Esq.

of New Hampshire et al., an appeal involving the constitutionality of an education tax credit program that went into effect in 2013, and was promptly and successfully challenged as unconstitutional in the Superior Court by various liberal-activists. [1] The thing to listen for at Wednesday’s hearing is the term “standing,” which is legal jargon for eligibility to bring a lawsuit. Bill Duncan and his fellow plaintiffs do not have it, and for this reason SCONH should rule that the Superior Court committed legal error in not dismissing the case. If SCONH allows the plaintiffs to argue the merits of the case without addressing standing, or if SCONH only deals with standing in a perfunctory way, that would suggest that SCONH is inclined to let the Superior Court’s clearly erroneous interpretation of the New Hampshire constitution stand or to reach the same or a similar result through its own exercise of judicial activism.

1. Background

The appeal is from a decision of the Superior Court declaring the State’s education tax credit program partially unconstitutional. The program allows businesses to take tax credits for funding scholarships for students attending nonpublic schools, public schools outside their school districts or who are home-schooled. The program went into effect in 2013, and various liberal-activists promptly sued, claiming that the program is unconstitutional because it uses tax-revenues to support parochial schools.

More particularly, business-taxpayers receive a credit against their business taxes of 85 percent of the donations made to “scholarship organizations,” which use these donations to provide scholarships to “eligible students.” The scholarships, which are capped at $2,500.00, are used to help the students pay for tuition at the “qualified school” of their choice. Qualified schools encompass nonpublic schools, including schools where religious instruction is part of the curriculum, public schools outside of the students’ district, and homeschooling.

The plaintiffs raised a number of state constitutional challenges to the Education Tax Credit program directed at the inclusion of “religious schools,” [2] but the trial court based its ruling on only Part II, Article 83, or more particularly an 1877 amendment to this provision, which in relevant part says “no money raised by taxation shall ever be granted or applied for the use of the schools or institutions of any religious sect or denomination.”

The Judge who issued the Superior Court decision was John Lewis, who subsequently retired and was recently reprimanded by the Judicial Conduct Committee for statements that suggested he was biased against female lawyers.

2. Standing.

In order to have standing one must have suffered or be about to suffer a personal injury that the law was designed to protect against. To quote SCONH, a litigant must “demonstrate harm to maintain a legal challenge.”[3] The term “harm” means a “a legal injury against which the law was designed to protect.”[4] The injury must be personal to the litigant.[5]

3. Why Standing Is A Big Deal.

SCONH has said that “[t]he requirement that a party demonstrate harm to maintain a legal challenge rests upon the constitutional principle that the judicial power ordinarily does not include the power to issue advisory opinions.”[6] In other words, standing is a constitutional requirement.

The New Hampshire Constitution does not define the “judicial power,”[7] but in Part I, Article 37 it sets limits on the judicial power by requiring that it be “kept as separate from, and independent of” as possible from the legislative and executive powers, which are defined.[8] In other words, Article 37 prohibits the judicial power from being exercised in a manner that would interfere with the powers of the other branches:

In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity. [9]

An advisory opinion is an opinion involving a theoretical question of law. When a court answers theoretical questions of law it acts in a super-legislative capacity. Instead of settling an actual dispute, the Court is superintending the legislative process. The doctrine of standing prevents the judiciary from interfering with the legislative power by restricting the judiciary to deciding real disputes.

Part II, Article 74 is an exception to Part I, Article 37’s prohibition of advisory opinions. Part II, Article 74 requires that the justices of the SCONH issue advisory opinions upon the request of the other branches:

Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions.

SCONH has said that, “Article 74 does not vest the authority to issue advisory opinions with the supreme court, as an institution, but rather with the individual supreme court justices. When the justices of the supreme court give an advisory opinion pursuant to Part II, Article 74, they do not act as a court, but as constitutional advisors to the legislative or executive branches.”[10]

Separation of powers concerns means that SCONH has “no authority under Part II, Article 74 to issue advisory opinions to either branch of the legislature regarding existing legislation.”[11] Its authority extends only to proposed legislation.[12]

Needless to say, “[i]t has been denied consistently that there is any right to give [advisory] opinions to private litigants.”[13]

In sum, standing is a big deal because it is a constitutional requirement.

3. Bill Duncan And His Fellow Plaintiffs Do Not Have Standing.

The plaintiffs do not claim to have suffered any personal injury that Part I, Article 6 and Part II, Article 83 protect against. More particularly, they do not argue that the State is using their tax dollars to fund parochial schools. Rather, they claim standing under a statute that gives standing to any taxpayer in a taxing district to challenge governmental “conduct [in that district] that is unlawful or unauthorized.”

Defendants that were allowed to intervene in the case argued that the statute relied upon by the plaintiffs violated the separation of powers because it granted standing to the plaintiffs in the absence of personal injury. [14]

Defendants are clearly correct. Granting a plaintiff standing based only upon a public grievance held in common with other citizens would violate Part I, Article 37 because it would put the the judiciary in the position of superintending the legislative process.

Finally, to the extent that the plaintiffs maintain that they have suffered injury because the tax credit forces them to pay higher taxes, I would direct you to a case decided by the United States Supreme Court, DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), which considered and rejected such an argument:

Plaintiffs’ alleged injury is also “conjectural or hypothetical” in that it depends on how legislators respond to a reduction in revenue, if that is the consequence of the credit. Establishing injury requires speculating that elected officials will increase a taxpayer-plaintiff’s tax bill to make up a deficit; establishing redressability requires speculating that abolishing the challenged credit will redound to the benefit of the taxpayer because legislators will pass along the supposed increased revenue in the form of tax reductions. Neither sort of speculation suffices to support standing. See ASARCO Inc. v. Kadish, 490 U. S. 605, 614 (1989) (opinion of Kennedy, J.) (“[I]t is pure speculation whether the lawsuit would result in any actual tax relief for respondents”); Warth, 422 U. S., at 509 (criticizing a taxpayer standing claim for the “conjectural nature of the asserted injury”).

A taxpayer plaintiff has no right to insist that the government dispose of any increased revenue it might experience as a result of his suit by decreasing his tax liability or bolstering programs that benefit him. To the contrary, the decision of how to allocate any such savings is the very epitome of a policy judgment committed to the “broad and legitimate discretion” of lawmakers, which “the courts cannot presume either to control or to predict.” ASARCO, supra, at 615 (opinion of Kennedy, J.). Under such circumstances, we have no assurance that the asserted injury is “imminent”— that it is “certainly impending.” Whitmore v. Arkansas, 495 U. S. 149, 158 (1990) (internal quotation marks omitted); see Defenders of Wildlife, 504 U. S., at 564-565, n. 2.

[1] For example, the first-named plaintiff is Bill Duncan, who is “primarily responsible” for an organization called Advancing New Hampshire Public Education. The organization’s website reflects the liberal orthodoxy on public education; i.e., more spending and more top-down regulation “advances” public education.

[2] In addition to their claims that the program violated two provisions of the New Hampshire constitution, Part I, Article 6 and Part II, Article 83, that the plaintiffs claim prohibit assisting or furthering “religious education,” the plaintiffs also claimed that the program violates provisions of the New Hampshire constitution requiring equal taxation. The Superior Court’s decision was based solely on Part II, Article 83.

[3] Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578, 588 (2000).

[4] Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578, 587 (2000) (quoting Roberts v. General Motors Corp., 138 N.H. 532, 535 (1994)).

[5] Libertarian Party of New Hampshire v. Secretary of State, 158 N.H. 194, 196 (2006).

[6] Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578, 588 (2000) (quoting Town of Orford v. N.H. Air Resources Comm., 128 N.H. 539, 542 (1986)).

[7] N.H. Const. Pt. II, Art. 72-a Merrill v. Sherburne, 1 N.H. 199, 203 (“No particular definition of judicial powers is given in the constitution …”).

[8] N.H. Const. Pt. II, Arts. 4, 5; N.H. Const. Pt. II, Arts. 41, 43, 44, 46.

[9] In the Claremont/Londonderry education funding cases, the Supreme Court has implied that the “chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity” allows it to take on legislative and executive powers. In Claremont School Dist. v. Governor (Motion for Extension of Deadlines), 143 N.H. 154, 160-61 (1998), for example: “The Separation of Powers Clause of the State Constitution, Part I, Article 37, prevents one branch of government from encroaching on the power of another. … Here, however, we emphasize the final part of that provision, which speaks of “that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.’” This is not the meaning given this language by earlier supreme courts. In Merrill v. Sherburne, 1 N.H. 199, 207 (1818): “It has been contended, and we with readiness admit, that from the close of this article, the inference is clear, that our constitution did not intend to make a total separation of the three powers of the government. The executive was to be united with the legislature in the passage of laws; and the former was to depend upon the latter for his salary. A part of the judiciary, too, was united with a part of the legislature in the trial of some impeachments; and all of the judiciary were made dependent on the executive for appointments and on the legislature and executive for the erection of courts, the apportionment of jurisdiction, for compensation and for removal by address. But these connexions and dependencies are not left to implication; they are all created by subsequent express provisions: and the above article was probably clothed in such cautious language that it might not conflict with those provisions …”

[10] Piper v. Meredith, 109 NH 328, 330 (1969).

[11] Opinion of the Justices, 121 N.H. 280, 282 (1981).

[12] Opinion of the Justices, 123 N.H. 510, 511 (1983).

[13] Piper v. Meredith, 109 NH 328, 330 (1969).

[14] The intervener-defendants did, but not the Attorney General. He argued that the individual plaintiffs did not have standing under the declaratory judgment statute (RSA 491:22) based on a strained reading of the statute, but conceded that the business-taxpayer had standing. In his defense, he was in somewhat of a quandary because he is required by statute to defend the constitutionality of all laws. RSA 7:6.

Edward C. Mosca

Mosca Law Office

27 Webster Street, 2nd Floor

Manchester, NH 03104

(603) 628-3695

Original article posted here.   Published with permission.