CONCORD — A six-year-old state law that allows businesses to claim a tax deduction for donations to a private school scholarship fund could face another court challenge, now that voters have overwhelmingly approved an amendment to the state constitution.
“On the 2012 voucher bill, I think there’s a good deal of energy out there to challenge it again and getting the court to decide it on the merits,” said former state Board of Education member Bill Duncan on Wednesday. “But it’s hard to tell if the same marshaling of resources can happen again anytime soon.”
The amendment, Question 1 on Tuesday’s ballot, was approved 83-17 percent, well within the margin needed to take effect. It grants taxpayers legal standing to challenge a governmental action in court without having to prove they were personally injured.
Duncan, founder of a group called Advancing New Hampshire Public Education, was the lead plaintiff in the lawsuit against the state in 2014 over the tax credit program.
That lawsuit challenged the program as a diversion of taxpayer funds to private religious schools in violation of the state constitution. It was filed on behalf of eight plaintiffs, including clergy, public education advocates and parents of public school children.
In what has since become known as the “Duncan ruling,” the state Supreme Court ruled those plaintiffs did not have standing and dismissed the case. The passage of Question 1 on Tuesday enshrines that standing in the state constitution.
Duncan said interest in reviving the lawsuit has grown, now that the legislature in the last session expanded the tax credit program beyond business taxes to include the tax on interest and dividends, which opens the program to a much larger pool of potential donors.
“If the interest and dividend tax inclusion in the program leads to big new use of the program, and a bigger loss of revenue to state government, then I would think the chances of a challenge go up, but it takes assembling a lot of resources to do that kind of challenge,” he said.
In the last go-round, Duncan and his group of plaintiffs had the support of Americans for Separation of Church and State and the ACLU-NH.
Both are “very much interested” in revisiting the case, but “that’s just at the conversational level at this point,” said Duncan.
The passage of Question 1 could also come into play if the Supreme Court takes up an appeal by former Nashua alderman Fred Teeboom.
Earlier this year, a Hillsborough County Superior Court judge cited the Duncan case in ruling that Nashua taxpayers didn’t have standing to challenge a city action they claimed violated the Nashua spending cap.
“I’m just now reviewing the draft brief that’s going to be sent to the Supreme Court on Nov. 15,” said Teeboom on Wednesday, the day after Question 1 was passed.
The ACLU-NH applauded the outcome of Tuesday’s vote.
“Government accountability goes to the heart of our democracy, and taxpayer standing is a key mechanism for citizens to challenge unconstitutional government action in courts,” said Gilles Bissonnette, ACLU-NH legal director.
The civil liberties union also applauded the passage of a second constitutional amendment, Question 2, also by a large margin, 81-19 percent.
This amendment would require the government to show a compelling state interest in obtaining access to personal and private information before a court could issue a warrant.
The amendment simply states that “An individual’s right to live free from governmental intrusion in private or personal information is natural, essential and inherent.”
Jeanne Hruska, ACLU-NH policy director, applauded the addition of an explicit right to privacy in the state constitution.
“Our state’s founders could not have fathomed DNA harvesting, facial recognition or iris scans,” she said. “In this daunting era of increasingly invasive technology, we need our right to privacy for personal information to be just as robust as our tech. New Hampshire has demonstrated again why it is a national leader on privacy.”