The New Hampshire Supreme Court ruled unanimously that the plaintiffs did not have the standing to sue, so did not address the underlying constitutional issue of state funding to religious education. Editorial opinion so far does not support the court:
From Gary Rayno in the Union Leader:
But the real impact was not lost on the New Hampshire Civil Liberties Union. Its attorney said it would have far greater effects than whether state money can flow to religious schools via tax credits.
“Today’s decision will have a significant impact on government accountability,” said Atty. Gilles Bissonnette.
“In striking down New Hampshire’s taxpayer standing statute, the (court) has made it far more difficult for the people of this state to constrain the actions of New Hampshire government bodies when those actions violate sacred constitutional rights.”
If personal injury or impairment of rights has to occur, then a law or decision has to be in place before a legal challenge can occur.
Does that mean a landowner cannot challenge a Site Evaluation Committee decision on the Northern Pass project until it is built and the value of his home plummets; or challenge a planning board decision to allow a mall in a field behind his house before it is built?
Likewise, no citizen could challenge a buffer zone around an abortion clinic until it is put in place, or state money going to religious schools, or changes to voter registration or gun permits.
The education business tax credit program has not been widely successful and Judge Lewis’ decision made it even less so.
The Supreme Court did not address the issue at the heart of the challenge and may never have to.
But it does set up what could be a fierce battle between the court and the Legislature and who has the greater reach. In the future, this decision may have as lasting an effect as Claremont.
From the Nashua Telegraph:
The court ruling wronged taxpayers in two regards. First, in an omission that smacks of an abdication of duty, it failed to render a decision on the merits of the scholarship program itself. That’s unfortunate, not least because it puts the program under a cloud.
The second area where the court failed the people of New Hampshire is in selecting the wrong standard to apply in deciding whether someone can sue the state. Thursday’s ruling allows courts to turn away taxpayers who may want to sue based on principle alone, rather than self-interest, and that’s a shame.
“This ruling closes the courthouse door on taxpayers who are having to subsidize religious education and on parents and children whose public schools are losing funding to this program,” said lead plaintiff attorney Alex J. Luchenitser.
The narrowing of the courthouse door is the most troubling aspect of the ruling, though it does appear to meet another kind of self-interest standard: a government entity handing down a ruling that makes it harder for taxpayers to sue their government.