Court ruling does a disservice

[rug]

Tuesday, September 2, 2014

Editorial
Telegraph of Nashua

The New Hampshire Supreme Court did the state no favors this past week with a ruling that allows businesses to claim a tax credit for scholarships that go to private schools, including religious ones.

In its decision, the court sidestepped the question of whether the law itself is constitutional, and whether it is permissible for the state to give tax credits for scholarships that involve religious schools.

Instead, the court used the case to do a little housekeeping. The justices merely said that the petitioners had no standing to bring such a challenge because the groups that filed suit were not personally harmed by the law’s impact.

The opinion, written by Chief Justice Linda Dalianis, of Nashua, noted that the court had been operating under conflicting case law. In one, a prior court had found that any taxpayer could bring a suit against public officials who had acted illegally.

http://www.fosters.com/apps/pbcs.dll/article?AID=/20140902/GJOPINION_01/140909971/-1/fosnews

The decision:

http://www.courts.state.nh.us/supreme/opinions/2014/2014074duncan.pdf

[cbayer]

1. Wow, that seems like a pretty lame ruling.

[merrily]

2. The standard is not whether someone is harmed by a law or not, but whether

someone is harmed in a way that is different from every other citizen. This is something that the SCOTUS came up with.

I think, but am not sure, that this was a standard that the SCOTUS created when deciding what the "case or controversy" language of the US constitution means.

The SCOTUS takes the position that it has no jurisdiction not given it by the Constitution. Ergo, if a proceeding is not a case or a controversy, as the Constitution states, the SCOTUS has no jurisdiction mucking around in it. So, for example, the SCOTUS refuses to give what are called advisory opinions.

I don't know the language of the New Hampshire Constitution or why the New Hampshire Supremes feel obligated to apply that standard in their state. For example, the proper officials can ask the The Massachusetts Supreme Judicial Court for an advisory opinion if they are not sure what the law permits/requires and the Supreme Judicial Court will tell them.

Does application of rules like standing create awful results? Yes. Did that happen in this case? I don't know enough to say.

[Jim__]

3. When I read the court ruling, I have no idea whether or not it is correct.

It declares that the law the suit was brought under is unconstitutional because it allows the court to render advisory opinions to private individuals. When I read the law, I don't see how it does that - but, I recognize the judge's expertise. Is the judge's reading of the law clearly correct, or is it just one possible interpretation?

[rug]

4. It looks like the Court reversed itself.

It had two precedents: one allowing standing to taxpayers as taxpayers; the other requiring some specific harm to the plaintiff. The statute was in response to the first precedent. By this decision, the Court reversed that precedent, and with it, the statute.

[Jim__]

5. Do you agree with the current decision?

Or, does it require some expertise in New Hampshire law to have any legitimate opinion?

[rug]

6. It's a very narrow decision dealing more with procedure than substance.

Standing is a very important concept and without knowing more of New Hampshire Law, I have to say I'm persuaded to agree with its reasoning on this narrow point.

[Jim__]

7. OK. Thanks.