Sunshine Week: N.H. AG won’t reveal why it thinks school voucher bill is constitutional

Monitor staff
Published: 3/13/2018 11:47:01 PM

The New Hampshire Attorney General’s Office is required by law to offer legal opinions on “any question of law” submitted by either branch of the Legislature.

Historically, those opinions are public, and even posted on the Attorney General’s website.

Yet in the case of the attorney general’s surprise reversal that a bill to give families public money to send children to private schools – including religious ones – is constitutional, the state’s top public lawyers want to keep their legal reasoning private.

The Monitor filed a right-to-know request in February seeking all documents relating to the AG’s analysis of the legislation, Senate Bill 193. In response, attorneys for the agency released a small batch of emails. Some were routine correspondence, and some dealt with a tussle between the American Civil Liberties Union of New Hampshire and the department about releasing a related document. But none dealt directly with the agency’s legal analysis of the bill.

Senior Assistant Attorney General Lisa English wrote in an email that the department had withheld certain documents as confidential, and exempt from disclosure as “attorney-client privileged communications or attorney work product, under RSA 91-A:5, IV, and as preliminary drafts, notes, and memoranda, under RSA 91-A:5, IX.”

That doesn’t fly, attorneys who specialize in public record disputes say.

“If they were defending the executive branch, that’s one thing. But when they’re sending something to the Legislature, I think the public has a right to know and have access to the materials that the Attorney General’s Office is relying upon to formulate a particular opinion,” said Greg Sullivan, general counsel for the Union Leader. “The Legislature has their own counsel. This is the Attorney General’s Office giving their opinion on a matter of public import.”

William Chapman, an attorney specializing in right-to-know and First Amendment issues at Orr & Reno in Concord, noted that one of the attorney general’s duties under state law is to give the Legislature advice on questions of law.

“Whether (the Legislature) is a client or not, the opinion ought to be public. And that’s the way the AG has treated prior opinions. Because they’re online,” said Chapman, who has represented the Monitor.

If the bill is passed and the state is sued, the Attorney General’s Office will have to explain its reasoning in court. And given the department’s prior public stance on the bill, it should explain its reversal, Chapman said.

“If there has been some change to constitutional law at the state or federal level that changes the AG’s analysis – what is it? We’re entitled to know. ... If there’s ever a suit, we’re going to find out. So why not tell us now? Why not have that debate now?” he asked.

SB 193 would create “education savings accounts” in New Hampshire, a voucher-like program that would allow families to put per-pupil state education aid toward private schooling options. ESAs were in large part invented as a legal strategy to circumvent prohibitions in state constitutions, like New Hampshire’s, against tax dollars going to religious schools. But that hasn’t stopped legal challenges from being brought forward in other states.

The attorney general’s opinion is of particular interest because of the way it changed so abruptly.

For months, Anne Edwards – a veteran attorney with the Attorney General’s Office dealing with education issues – warned legislators publicly that the bill was unconstitutional because of strict prohibitions in New Hampshire’s constitution against spending state dollars at religious schools.

But days before a crucial vote in the state’s House of Representatives, the state’s justice department abruptly reversed course.

“As discussed with Attorney General (Gordon) MacDonald this morning, we believe that SB 193, with its proposed amendment 2018-2530h, is constitutional,” Edwards wrote in a two-sentence email to House Chief of Staff Terry Pfaff on Dec. 28. The email was leaked to the Union Leader, and certain legislators cited the attorney general’s opinion when casting their vote the following week. The previously leaked email was included in documents the Attorney General’s Office released as part of the Monitor’s right-to-know request.

The AG’s office has declined multiple requests for comment.

SB 193 is up for a vote in the House Finance Committee on Wednesday. If it clears the panel, it’ll head back to the full House next week. Gov. Chris Sununu, a strong supporter of school choice, has said he’ll sign the bill.

(Lola Duffort can be reached at 369-3321 or lduffort@cmonitor.com.)



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