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N.H. Supreme Court lets tax credit dollars flow to religious schools

The state Supreme Court yesterday allowed a controversial education tax credit to remain in place, despite a lower court’s decision that it unlawfully diverts public money to religious schools.

The court did not rule on the merits of the program, as many had anticipated, but said instead that the plaintiffs contesting it lacked legal standing to bring their claims in the first place.

“Our decision in this case does not mean that a taxpayer can never have standing to challenge governmental actions,” Chief Justice Linda Dalianis wrote for the court. “When a taxpayer has a sufficiently personal and concrete interest to confer standing, the taxpayer may seek judicial relief.”

The plaintiffs, including former Executive Council candidate Bill Duncan, claimed that they did have a direct interest, as the program would reduce state revenue and drain money from public schools, where some of them teach or have children.

Legislators passed a law in 2012 that made it easier for taxpayers to challenge government action, regardless of their personal ties. But the justices yesterday found that unconstitutional because, they reasoned, it forces them to act as legislative advisers in certain cases.

Alex Luchenitser, the plaintiffs’ lead attorney, said that decision will have broad and lasting implications.

“It basically slams the door on New Hampshire taxpayers and citizens who want to challenge unconstitutional conduct by the state or local bodies,” he said.

The tax credit program has been divisive from the beginning. Enacted in 2012 over a veto by then-Gov. John Lynch, it encourages businesses to donate tax dollars to scholarship organizations that help students attend private schools, including those with religious backing. Critics argue it strips public institutions of funding and inappropriately supports religious education. Supporters counter that it strengthens public schools through competition and provides opportunities for low-income families, and that the money never passes through government hands.

Last June, a Strafford County Superior Court judge ruled that the program had in fact violated the state Constitution, and he said religious schools could no longer participate. Yesterday’s ruling effectively reinstates the program in its entirety.

Gov. Maggie Hassan has previously opposed the tax credits, and she urged legislators yesterday to repeal it.

“I continue to believe that the voucher tax credit is unconstitutional and am disappointed that the Supreme Court did not rule on the underlying issue,” she said in a statement. “The voucher tax credit is bad public policy for public education in New Hampshire and our taxpayers, diverting millions of dollars in taxpayer money with no accountability or oversight to religious and private schools at the expense of public schools and property taxpayers across the state.”

Others, however, lauded the court’s decision.

“This is a great day for parental liberty in New Hampshire,” Dick Komer, an attorney for the Network for Educational Opportunity, which has received money through the program, said in a statement. “We are delighted that the Supreme Court recognized that the trial court erred in allowing this case to proceed.”

Under the law, businesses that donate to a scholarship organization can receive up to 85 percent of it back in tax credits. The money funds tuition costs at private, religious and home schools.

The program requires 70 percent of the scholarships to be used on students at public schools – a point often targeted by opponents. In April, when the case was argued before the court, Luchenitser said public schools lose about $3,700 every time a student leaves for another school.

The program allowed for up to $5.1 million in scholarships this year, and it provides for additional increases in tax credits in future years.

The plaintiffs in the case were represented by Americans United for Separation of Church and State, the New Hampshire Civil Liberties Union and the American Civil Liberties Union.

Luchenitser said the groups cannot appeal the decision, but can bring a new legal challenge if they find plaintiffs who are directly impacted by the program, such as a school or school district.

(Jeremy Blackman can be reached at 369-3319, or on Twitter @JBlackmanCM.)


Weighing in on the New Hampshire Supreme Court’s tax credit decision

Thursday, August 28, 2014

Several interested parties and policy groups weighed in yesterday on the state Supreme Court’s education tax credit ruling. Here’s a sampling of their statements. New Hampshire Republican Party Chairwoman Jennifer Horn: “We are pleased that the court’s decision will allow this worthy program to continue to benefit New Hampshire children. Education choice is about parents being able to find the …

Legacy Comments4

When will the LIDV's realize we give them sage advice . We are proven correct ....AGAIN

According to The A.C.L.U. Press Report at: " This ruling closes the courthouse door on taxpayers who are having* to subsidize religious education " . But that is a lie! A blatant lie! And from a Reverend, or man-of-the-cloth at that! See also: " A tax credit is a sum deducted from the total amount a taxpayer owes** to the state. * of that definition a presumption that the one being taxed AGREES or does "consent" that such 100% is owed** as due as in having given his RSA Ch. 80:60 "implied consent" of having "committed" his property to be taxed for such, and so gets an 85% reduction IF he donates to such a fund for that of a "Free to Choose" option for the parents of a child or children to be able to choose a private school if they wish. There is no FORCE involved! There is deceit involved in the very set-up of RSA Ch. 80:60 though in that in actuality a tax is but a charge for serves rendered; it is NOT a debt due as owed**. "These people" who claim that THEY are thus subsidizing a religion are in fact hypocrites themselves as it is THEY who try to force those not in-the-know of how to opt out of the RSA 80:60 implied consent in having it even worse in that of a Reverse Robin Hood System of the poor subsidizing the rich! as to the parents of those children working and living above the poverty line, that be against the law! of Article 38 that requires the government to operate in a "frugal" manner of what is "need"ed by some as too poor to choose rather than WANT-ed by all the rest. Read also 55NH503@505,par.2(1875) for the Brentwood School District No. 2 case on this as adopted by Rose & Milton Friedman in their "Free to Choose" Plan in Chapter 5 of their 1980 best-selling book. Of it about time this 1/.3rd century later to finally read AND understand what they wrote about of now to DO it! [ Not only in this business tax but applicable to the property taxes too! ] Especially our public servants who are supposed to be bound by their RSA Ch. 42:1 + 92:2 oaths to Article 84 of the N.H. Constitution! The time of this implied consent of to pay into subsidizing this religion of Secular Humanism in the government schools has got to end! That is what all gov't teachers are: Ministers of this religion, according to their NEA bylaws as members thereof. Plus don't forget about No taxation without representation. That even though you may not have a child in the school district, of the word district of territorial of applied in the in personam rather than in rem, unless you do the 80:60 implied consent, then by your religion, of MY religion being a Protest-ant! (;-) of I protest that I be FORCED to pay for such! as the Bible reads of NOT to be FORCED to GIVE to the poor, BUT that of to LEND to the poor at zero interest expecting nothing in return, but that the system that needs to be set up. This is my and YOUR right as supposed to be a guarantee by Article 5 of our N.H. Bill of Rights! So to extend this option from the business to the property taxes also? Yes and no, of not needing a new statute, but for YOU to KNOW what to do with the existing laws, of including Article 5 in Part 2 of the N.H. Constitution for not only the unlawful state-wide school tax per the Claremont case, but that for ALL taxes.

Joe, like I inferred yesterday, who's going to bother reading all that? We're not lawyers. Why don't you be more concise?

In other words the business tax is cut down to 15% and so gives the businessman the FREE TO CHOOSE where he/she/or they can spend by "donation" of $whatever wherever within that sphere of for private schools. Sort of like the business buying into a private school lottery to offset what the State does in gathering $money for the gov't schools and giving $kickbacks in $prize money to the participants. (;-) The prize in the private sector being more like us hoping that some student wins the Nobel Prize in Science, etc. for like finding the cure to this or that disease upon mankind in general.

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