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Garry Rayno's State House Dome: Far-reaching implications of 'legal standings'

August 30. 2014 8:01PM

BUSINESS TAX CREDITS for private and religious school scholarships were ostensibly the Supreme Court's focus last Thursday, but its ruling reaches into the heart of citizens' challenging their government.

The court never addressed the issue of public money going to religious schools through tax credits. Instead, it ordered the case dismissed because the plaintiff had no "legal standing'' to file a challenge.

What the court did address was a 2012 law that sought to overturn an earlier court opinion saying citizens have to show personal harm before they can sue to challenge a law or other government action.

In making its 2010 decision, Baer vs. NH Board of Education, the court said it saw two conflicting paths in determining legal standing. One allowed taxpayers to challenge decisions and law without showing actual harm; the other required personal injury or impairment of rights.

The court said at that time "that taxpayer status, without an injury or an impairment of rights, is not sufficient to confer standing to bring a declaratory judgment action."

Without personal harm or impairment of rights, the court would essentially be issuing an advisory opinion to an individual, the court said, while the constitution only allows the legislature or governor and executive council to request such advice.

Lawmakers decided in 2012 to allow taxpayers to challenge laws and governmental decisions as they had before 2010 and passed HB 1510.

It allows "taxpayers to establish standing without showing that their personal rights have been impaired or prejudiced," in the words of Chief Justice Linda Dalianis, just before she said in last week's ruling that this was unconstitutional.

The change in law had not been controversial in the 2011-2012 Legislature. It was signed by Gov. John Lynch.

The plaintiffs who challenged the education business tax credit used the 2012 law in filing their suit and Strafford Superior Court Judge John Lewis said OK. He then found the provision allowing the tax credit for religious school scholarships unconstitutional.

On Friday, there was scant mention of the court overturning "legal standing.'' Republican leaders praised the court's decision that essentially threw out the challenge to the tax credits. Democrats denounced it.

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.

New Hampshire Politics Political columns State House Dome

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