Taxpayer Standing Gutted in New Hampshire

     (CN) - Letting taxpayers challenge the unlawful use of tax money that does not affect them personally is unconstitutional, New Hampshire's highest court ruled.
     New Hampshire's Education Tax Credit program gives an 85 percent tax credit to businesses that financially support approved scholarship organizations aiding students who are homeschooled or who attend private school or public school in another district.
     Considering the complaint brought by eight state residents and taxpayers, a judge in Strafford found that the program violates the New Hampshire Constitution, which provides that "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 New Hampshire Supreme Court reversed the decision Thursday, however, based on the unconstitutionality of a different law.
     A 2012 amendment to New Hampshire law grants taxpayers standing to challenge the use of tax monies, even if they are not personally impacted by the challenged use.
     The amendment states: "The taxpayers of a taxing district in this state shall be deemed to have an equitable right and interest in the preservation of an orderly and lawful government within such district; therefore any taxpayer in the jurisdiction of the taxing district shall have standing to petition for relief under this section when it is alleged that the taxing district or any agency or authority thereof has engaged, or proposes to engage, in conduct that is unlawful or unauthorized, and in such a case the taxpayer shall not have to demonstrate that his or her personal rights were impaired or prejudiced."
     This amendment was passed in direct response to the New Hampshire Supreme Court's ruling in Baer v. New Hampshire Department of Education, holding that a taxpayer must show that "some right of his is impaired or prejudiced" by the challenged conduct.
     The New Hampshire Supreme Court found Thursday that this expansion of standing impermissibly authorizes the court to give private individuals advisory opinions.
     "The standing required by our constitution is not satisfied by the abstract interest in ensuring that the State Constitution is observed," Chief Justice Linda Dalianis wrote for the unanimous court.
     By removing the personal injury requirement for standing, the amendment effectively grants courts authority over the legislative branch, upsetting the balance of government, the court said.
     "When the concrete, personal injury requirement is eliminated, courts 'assume a position of authority over the governmental acts of another and co-equal department,'" Dalianis wrote. "The text of the state constitution nowhere suggests that the framers intended the judiciary to exercise a role of general superintendence over the whole of the state's government - to function, in effect, as a body akin to the council of revision proposed at the Federal Convention of 1787."
     The amendment also steps on the duties of the executive branch, as the governor is charged with "the faithful execution of the laws," the 15-page opinion states.
     "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," Dalianis concluded.
     Gilles Bissonnette, staff attorney for the New Hampshire Civil Liberties Union, railed against the "significant impact" that Thursday's decision will have on government accountability.
     "In striking down New Hampshire's taxpayer standing statute, the New Hampshire Supreme 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," Bissonnette said in a statement.