NH Supreme Court Upholds NH Education Tax Credit -Kids Win, Maggie Hassan And Democrats Lose

schooL_choiceThe NH State  Supreme Court Upholds NH Education Tax Credit.  The ACLU, Bill Duncan, Maggie Hassan, Barry Lynn and others…lose.

Kids and parents who want their kids to have a shot at attending the better schools or just having more choices – Win!

Court (Lewis, J.) ruling in favor of the petitioners, eight individual New Hampshire residents and taxpayers and LRS Technology Services, LLC (LRS), on their petition for a declaratory judgment that the Education Tax Credit program (the program), see RSA ch. 77-G (Supp. 2013), violates Part II, Article 83 of the State Constitution. Defending the program are the State and the intervenors. The intervenors are three New Hampshire citizens, who wish their children to receive scholarship funds under the program, and the Network for Educational Opportunity, a non-profit organization involved with the program. The trial court ruled that the petitioners had standing under RSA 491:22, I (Supp. 2013). We do not reach the merits of the petitioners’ declaratory judgment petition because we conclude that: (1) the 2012 amendment to RSA 491:22, I, which allows taxpayers to establish standing without showing that their personal rights have been impaired or prejudiced, is unconstitutional; and (2) absent that amendment, the petitioners have no standing to bring their constitutional claim. Accordingly, we vacate and remand with instructions to dismiss the petition.


The personal injuries alleged by the petitioners in this case, like those alleged in Cuno and Watson, are insufficient to establish standing. The petitioners’ claim that the program will result in “net fiscal losses” to local governments does not articulate a personal injury. It “is the same, indistinguishable, generalized wrong allegedly suffered by the public at large.” Id. Although some of the petitioners have school-aged children or are public school teachers, at best, this establishes that those petitioners have a special interest in education. Such a special interest, alone, does not constitute a “definite and concrete” injury sufficient to confer standing. Avery, 162 N.H. at 608 (quotation omitted); see Kadish, 490 U.S. at 616. Moreover, the purported injury asserted here — the loss of money to local school districts — is necessarily speculative. See Cuno, 547 U.S. at 344. Even if the tax credits result in a decrease in the number of students attending local public schools, it is unclear whether, as the petitioners allege, local governments will experience “net fiscal losses.” The prospect that this will occur requires speculation about whether a decrease in students will reduce public school costs and about how the legislature will respond to the decrease in students attending public schools, assuming that occurs. See Kadish, 490 U.S. at 614-15.

To the extent that the petitioners argue that LRS has standing because it “has paid and continues to pay business enterprise taxes or business profits taxes,” this, too, is insufficient to show that LRS has suffered a personal injury as a result of the program. There is no evidence that by granting tax credits to other businesses, the program alters the amount of taxes LRS is or will be required to pay.

Because the petitioners fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, they have failed to establish that they have standing to bring their constitutional claim. “It is evident that the [petitioners] are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant’s interest or the fervor of his advocacy.” Valley Forge, 454 U.S. at 486. “That concrete adverseness which sharpens the presentation of issues is the anticipated consequence of proceedings commenced by one who has been injured in fact; it is not a permissible substitute for the showing of injury itself.” Id. (quotation, citation, and brackets omitted).

There is a good deal more in there of interest, and most of the decisions covers why they find 2012 amendment to RSA 491:22, I, unconstitutional.  But the Education tax credit survived its legal challenge, and the arguments against it, all supported by our good buddy Judge John ‘Lefty’ Lewis, the entire Democrat noise machine, were vacated.

I don’t know if the left will give up on this, but this is a serious blow to the arguments they used to support their case.  No harm, and the tax and budget arguments were deemed speculative, something I explored with some amusement here.


Court Opinion.

Link to the ACLU remarks on the case and the result of Judge Lewis decisions since vacated.

Governor Margret Hassan – Amicus brief in support of repealing the education tax credit

I’d pen this as another major failure for Hassan, by the way.  NH Democrats got the ACLU and outside interests to file suit.  Hassan put a lot of stock in the lefts argument, and in defense of repeal by the courts, and they knew they would get a thumbs up by now retired judge John Lefty Lewis.   But the state supreme court, which is loaded with Democrat appointees, did what it so often does with Lewis’ opinions.  They vacated it.