2013-0455, Bill Duncan & a. v. State of New Hampshire & a.

Timo thy D. Keller on the brief, and Mr. Komer orally), and Wadleigh, Starr & Institute for Justice, of Arlington, Virginia (Richard D. Komer and

for the State. general, and Frank C. Fredericks, attorney, on the brief, and Mr. Head orally), Joseph A. Foster, attorney general (Richard W. Head, associate attorney

brief), for the petitioners. New Hampshire Civil Liberties Union, of Concord (Gilles Bissonnette on the Khan and Alex J. Luchenitser on the brief, and Mr. Luchenitser orally), and United for Separation of Church and State, of Washington, D.C. (Ayesha N. Washington, D.C. (Daniel Mach and Heather L. Weaver on the brief), Americans ACLU Foundation Program on Freedom of Religion and Belief, of

No. 2013 - 455 Strafford

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

of Concord (Roy S. McCandless on the brief), for Concord Christian Academy, and Benjamin H. Diessel on the brief), and McCandless & Nicholson, P. L.L.C., Cravath, Swaine & Moore LLP, of New York, New York (Roger G. Brooks

Coulson, and Jason M. Bedrick, as amici curiae. Il ya Shapiro, of Washington, D.C., by brief, for The Cato Institute, Andrew J. Mosca Law Office, of Manchester (Edward C. Mosca on the brief), and

brief, for The Becket Fund for Religious Liberty, as amicus curiae. the brief), and Eric C. Rassbach and Asma T. Uddin, of Washington, D.C., by Simmons & Ortlieb, PLLC, of Hampton (John Anthony Simmons, Sr. on

Anti - Defamation League, as amicus curiae. (Robert C. Kirsch, Mark C. Fleming, and Eric D. Wolkoff on the brief), for The Wilmer Cutler Pickering Ha le and Dorr LLP, of Boston, Massachusetts

NEA - New Hampshire, as amicus curiae. James F. Allmendinger, of Concord, staff attorney, on the joint brief, for

Teachers - New Hampshire, as amic i curiae. American Federation of Teachers, AFL - CIO, and American Federation of Channing M. Cooper, of Washington, D.C., on the joint brief, for

amic i curiae. Defending Freedom, Cornerstone Policy Research, and Liberty Institute, as Folsom, California, and Michael J. Compitello, of Bedford, by brief, for Alliance Gregory S. Baylor, of Washington, D.C., Heather Gebelin Hacker, of

intervenors. Peters, P.L.L.C., of Manchester (Michael J. Tierney on the brief), for the p. 3 3

dismiss the petition. constitutional claim. Accordingly, we vacate and remand with instructions to and (2) absent that amendment, the petitioners have no standing to bring their their personal rights have been impaired or prejudiced, is unconstitutional; 491:22, I, which allows taxpayer s to establish standing without showing that judgment petition because we conclude that: (1) the 2 012 amendment to RSA (Supp. 201 p. 3 3). We do not reach the merits of the petitioners’ declaratory The trial court ruled that the petitioners had standing under RSA 491:22, I Educational Opportunity, a non - profit organization involved with the program. children to receive scholarship funds under the program, and the Network for intervenors. The intervenors are three New Hampshire citize ns, who wish their 83 of the State Constitution. Defending the program are the State and the program (the program), see RSA ch. 77 - G (Supp. 2013), violates Part II, Article on their petition for a declarator y judgment that the Education Tax Credit Hampshire residents and taxpayers and LRS Technology Services, LLC (LRS), Superior Court (Lewis, J.) ruling in favor of the petitioners, eight individual New DALIANIS, C. J. This is an appeal and cross - appeal from an order of the

Andrew Sanborn, as amic i curiae. Forsythe, William O’Brien, Pamela Tucker, Michael Balboni, Fenton Groen, and O’Brien, of Mont Vernon, by brief, for Pacific Legal Foundation, Greg Hill, Jim Joshua P. T hompson, of Sacramento, California, by brief, and William L.

New Hampshire School Boards Association, as amicus curiae. Barrett M. Christina, of Concord, staff attorney, on the joint brief, for

School Administrators Association, as amicus curiae. Volinsky and Christopher G. Aslin on the joint br ief), for New Hampshire Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Andru H.

curiae. Gre a be, of Hopkinton, by brief, for Governor Margaret W. Hassan, as amicus Lucy C. Hodder, of Concord, le gal counsel to the Governor, and John M.

and Roman Catholic Bishop of Manchester, as amici curiae. Grace Christian School, Concord Christian Academy Giving and Going Alliance, p. 4 4

meaning of . . . Part II, Article 83, and the associated tax credits are lik ewise ‘schools or institutions of any religious sect or de nomination’ within the that “the program may pr oceed, except that scholarship monies may not go to Constitution to be severable from the remaining provisions, the court ordered provisions in RSA chapter 7 7 - G that violate Part II, Article 83 of the State educational expenses a t nonpublic ‘religious’ schools.” After deeming the taxation” for use by religious schools because they “inevitably go toward that the tax credits violate the prohibition against applying “money raised by “[m]oney that would otherwi se be flowing to the government.” The court ruled the tax cr edits constitute “money raised by taxation” because they comprise institutions of any religious sect or denomination.” The court determined that by taxation shall ever be granted or applied for the use of the schools or the State Constitution, which provides, in pertinent part, that “no money raised The trial court concluded that the program violates Part II, Arti cle 83 of

year.” RSA 77 - G:8, I. school district’s total voted appropriations for the year prior to the scholarship year prior to receiving the scholarships” is “greater than ¼ of one percent of a receiving scholarships . . . and who were in attendance in that district in the amount of reductions in adequacy cost pursuant to RSA 77 - G:7 from students “scholarship stabilization grant[s]” to school districts when “the combined 77 - G:2, I(b). The program r equires the State De partme nt of E ducation to issue G:1, VI. The program requires DRA to adjust those amounts annually. RSA receive scholarships equal to twenty - five percent of $2,500, or $625. RSA 77 - G:2, I(b). In the first year of t he program, homeschooled students are eligible to scholarships to homeschooling students, “shall not exceed $2,500.” RSA 77 all scholarships awarded by a scholarship organization,” excluding exp enses. RSA 77 - G:2, I(a). In the program’s first year, “[t]he average value of located outside of the [student’s] school district,” or to defray homeschooling through the program “to attend (1) a nonpublic school . . . or (2) a public school program year. RSA 77 - G: p. 4 4, I. An eligible student may receive a scholarship on January 1, 2013, see Laws 2012, 287:5, and at $5.1 million fo r the second granted to all taxpayers at $ 3.4 mil lion for the first program year, which began both [taxes].” RSA 77 - G:3. The program caps “[t]he aggregate of tax credits” due . . . or against the business enterprise tax d ue . . . or apportioned against credit equal to 85 percent of the contribution against the business profits tax organization, “a business organ ization or business enterprise may claim a XVII, : 2 -:5. For each contribution made to a qualifying scholarship scholarships to eligible students under the program. See RSA 77 - G: 1, VIII, New Hampshire Department of Revenue Administration (DRA) to award that contribu te to scholarship organizations that have been approved by the The program creates a tax credit for business organizations and enterprises legislature enacted the program in June 2012, overriding a gubernatorial veto. The trial court found, or the record establishes, the following facts. The

I. Background p. 5 5

standing to petition for relief under this section when it is alleged any taxpayer in the jurisdiction of the taxing district shall have of an orderly and lawful government within such district; therefore deemed to have an equitable right and interest in the preservation concl usive. The taxpayers of a taxing district in this state shall be parties, and the court’s judgment or decree thereon shall be such right or title to determine the question as between the may maintain a petition against any person claiming adversely to Any person claiming a present legal or equitable right or title

As amended in 2012, RSA 491:22, I, provides:

determining insurance coverage. declaratory judgment actions that are not for the purpose of awards of costs and attorney’s fees under RSA 491:22 - b in not affect the burden of proof under RSA 491:22 - a or permit declaratory relief. However, the provisions of this paragraph shall equity shall not preclude any person from obtaining such conclusive. The existence of an adequate remedy at law or in par ties, and the court’s judgment or decree thereon shall be such right or title to determine the question as between the may maintain a petition against any person claiming adversely to Any person claiming a present legal or equitable right or title

Before the 2012 amendment, R SA 491:22, I (2010) provided:

A. Constitutionality of 20 12 Amendment to RSA 491:22, I

II. Analysis

the petitioners followed. disallowed.” This appeal by the State and the intervenors and cross - appeal by p. 6 6

had been interpreted in the older line of cases identif ied in Baer. As one of the The intent of t he 2012 amendment was to restore taxpayer standing as it

judgment action under RSA 491:22.” Id. at 731. impai rment of rights, is not sufficient to confer standing to bring a declaratory omitted). Specifically, we held “that taxpayer status, without an injury or an show that “some right of his is impaired or prejudiced” thereby. Id. (quotation an action under the statute, a party questioning the validity of a law must the language of RSA 491:22 (2010) (amended 2012), and held tha t to maintain reasoned that the second, more recent, line of cases was more consistent with in order to maintain a declaratory judgment action.” Id. We ultimately “required taxpayers to demonstrate th at their rights are impaired or prejudiced Id. (quotation omitted). Under the second, more recent line of cases, we had lawful government regardless of whether his purse is immediately touched.” taxpayer has a vit al interest in and a right to the preservation of an orderly and financial loss to the town.” Id. In those cases, we reasoned that “every dependent upon showing that the illegal acts of the public officials resulted in a t he unlawful acts of their public officials, even when the relief sought was not we had “permitted taxpayers to maintain an equity action seeking redress for declaratory judgment action.” Baer, 1 p. 6 60 N.H. at 730. Under one line of cases, contain[ed] two conflicting lines of cases regarding taxpayer standing to bring a N.H.H.R. Jour. 887 - 88 (2012). In Baer, we recognized that “[o]ur case law in Baer v. New Hampshire Department of Education, 160 N.H. 727 (2010). See The l egislature passed the amendment in direct response to our holding

Laws, 2012, 2 p. 6 62:1 (emphasis added).

purpose of determining insurance c overage. 491:22 - b in declaratory judgment actions that are not for the 491:22 - a or permit awards of costs and attorney’s fees under RSA this paragraph shall not affect the burden of proof under RSA from obtaining such declaratory rel ief. However, the provisions of adequate remedy at law or in equity shall not preclude any person entitled to appeal under the applicable statute. The existence of an statute and the person seeking to challenge the decision is not exists a right to appeal the decision under RSA 541 or any other municipality, school district, village district, or county if there board, commission, agency, or other authority of the state or any decision was rendered, or (b) to challenge the decision of any court if the person was not a party to the actio n in which the standing to any person (a) to challenge a decision of any state prejudiced. The preceding sentence shall not be deemed to convey demonstrate that his or her personal rights were impaired or unauthorized, and in such a case the taxpayer s hall not have to engaged, or proposes to engage, in conduct that is unlawful or that the taxing district or any agency or authority thereof has p. 7 7

address the merits of the interv enors’ arguments because, they contend, the I, Article 3 p. 7 7, or Part II, Article 41. Although the petitioners urge us not to violates Part II, Article 74, we need not decide whether it also contravenes Part Because we conclude that the 2012 amendment to RSA 491:22, I,

to RSA 491:22, I, to establish standing. Accordingly, they argue, the petitioners cannot rely upon the 2012 amendment restrain a violation of any constitutional power by a public offic ial or agency.” “contravenes the explicit provisio n granting to the Governor the authority to Part II, Article 41 of the State Constitution because that expansion judiciary in such a way as to violate the separation of powers doctrine; and (3) 3 p. 7 7 of the State Constitution because the amendment expands the role of the this court to render advisory opinions to private individuals; (2) Part I, Article (1) Part II, Article 74 of the State Constitution because the amendment allows showing of personal injury,” the 2012 amendment to RSA 491:22, I, violates: The intervenors argue that, by “dispens[ing] with the requi rement of any

legislation). N.H.H.R. Jour. 88 p. 7 7 - 88 (2012); see N.H.H.R. Jour. 17 (2012) (listing sponsors of

2010. taxpayers the same right that they possessed f rom 1863 until taxpayer suits to challenge go vernmental action - returning to amended by a bipartisan majority, clarifies the law to again permit rights in order to bring a declaratory judgment action. This bill, as requires taxpayers to demonstrate an injury or an impairment of Supreme Court. The court’s new interpreta tion of RSA 491:22 now (2010) all of these taxpayer standing cases were set aside by the the case of Baer v. N.H. Department of Education, 160 N.H. p. 7 727 unlawful acts of their public officials.” However, two years ago in plaintiffs, as taxpayers, have standing to seek redress for the Supreme Court also held that “it is well settled in this state that immediately touched.” This was echoed in 1974 when the orderly and lawful government regardless of whether his purse is town has a vital interest in and a right to the preservation of an N.H. 456 (1952) the court held, “it is plain that every taxpayer of a tax dolla rs and allowed such suits. In Clapp v. Town of Jaffrey, 97 that taxpayers had a legitimate interest in the disposition of their As far back as 1863, the New Hampshire Supreme Court found all taxpayers had standing in the state court to seek such relief. damages. For a century and a half, until a court ruling in 2010, a governmental action is challenged. It is not a suit for money for declaratory judgment, which asks a court what the law is when This bill restores the long established right of local taxpayers to file

three sponsors of the legislation stated when introducing it: p. 8 8

to either branch of the legislature regarding existing legislation.” Opinion of to a private litigant). Nor does it empower the court “to issue advisory opinions Constitution, cou rt states that it has no authority to issue an advisory opinion Fox, 44 A.3d 130, 137 (R.I. 2012) (construing similar provision of Rhode Island N.H. 255, 256 (1976); State v. Harvey, 106 N.H. 446, 44 p. 8 8 (1965); cf. Watson v. op inions to private individuals. See Piper, 109 N.H. at 330; Clark v. Clark, 116 Thus, Part II, Article 74 does not authorize this court to render advisory

Article 74 [ ] to the branches of the Legislature and the Governor and Council.”). bodies authorized to . . . obtain [advisory] opinions are limited by [Part II,] Manual, 63 N.H. at 576 - 77; Piper v. Meredith, 109 N.H. 32 p. 8 8, 33 0 (1969) (“The the governor and council.” N.H. CONST. pt. II, art. 74; see In re School - Law upon solemn occasions,” and only to “[e]ach branch of the legislature as well as court may render advisory opinions only “upon important questions of law and 576 - 77 (188 5). Pursuant to Part II, Article 74, the justices of the supreme Justice), 150 N.H. 355, 356 (2003); see In re School - Law Manual, 63 N.H. 574, circumscribed situations.” Opinion of the Justices (Ap pointment of Chief without the benefit of adversary legal presentations, only in carefully opinions, outside the context of concrete, fully - developed factual situations and occasions.” It “empowers the ju stices of the supreme court to render advisory of the supreme court upon important questions of law and upon solemn governor and council shall have authority to require the opinions of the justices Part II, Article 74 provides: “Each branch of the legislature as well as the

likely to be that meant by the people in its adoption.” Id. (quotation omitted). and most obvious interpretation of a constitution, if in itself sensible, is most the natural significance of the words used by the framers.” Id. “The simplest Judicial Ret. Plan v. Sec’ y of State, 161 N.H. 49, 53 (2010). “The first resort is constitution, we must look to its purpose and intent.” Bd. of Trustees, N.H. “When our inquiry requires us to interpret a provision of the

brings the jurisd ictional issue before us.”). this Court has never considered itself bound when a subsequent case finally questions of jurisdiction have been passed on in prior decisions sub silentio, prejudiced. Cf. Hagans v. Lavine, 41 5 U.S. 52 p. 8 8, 535 n.5 (1974) (“[W]hen to sue without having to show that any personal right of his is i mpaired or none of those cases did we address the constitutionality of allowing a taxpayer 730, did not address the precise issue with which we are faced in this case. In We note that the “earlier line of cases” re ferenced in Baer, 160 N.H. at

sponte. Eby, 166 N.H. at ___. subject matter jurisdiction, we may raise the issue of a party’s standing sua sufficiently briefed their standing arguments, because standing is a question of sufficiently briefed for our review. Moreover, even if the intervenors had not opening and reply briefs, we conclude that their standing arguments are intervenors have not sufficiently briefed them, having reviewed the intervenors’ p. 9 9

the sale was that the plaintiffs obtain approval from the city to store gas, gas statio n. Faulkner, 85 N.H. at 148 (preface to opinion). One condition of in that case had a contract to sell land in Keene to Standard Oil Company for a “authoritative[ly] determin[e] [the] rights” of “contending parties.” The plaintiffs allow the court to issue advisory opinions, but instead empowered the court to version of RSA 4 p. 9 91:22 was consistent with Part II, Article 74 because it did not In Faulkner v. Keene, 85 N.H. 147, 151 (1931), we opined that a prior

into court for trial and judgment.” Id. at 575. those questions arise in cases not mooted by the court, b ut brought by parties explained that we could not rule upon the validity of the rules and forms “until advisor y and an improper exercise of judicial power. See id. at 576 - 77. We declined to approve the rules and f orms, in part, because doing so would be approved, would be “deemed valid and sufficient.” Id. (quotations omitted). We proceeding” then were to be forwarded to this court for approval and, once under sa id statutes.” Id. (quotation omitted). The “rules and forms of statutes related to schools and “frame rules and forms of proceedings in towns The statute also authorized the Governor to appoint a commissioner to compile and amend laws related to schools. In re School - Law Manual, 63 N.H. at 575. legislature had enacted a statute that appointed a commission to rev ise, codify, In re School - Law Manual is similarly instructive. In that case, the

private individual co ntravened Part II, Article 74. Id. (quotation omitted). We concluded that issuing such an advisory opinion to a defendant,” and there were no “matters . . . in contention.” Id. at 448 State now ma[de] no claim of any rights adverse to those asserted by the determined that the opinion the defendant sought was advisory because “the violated the ordinance. Harvey, 106 N.H. at 447 (preface to opin ion), 448. We before his appeal, the State nol prossed the complaint alleging that he had upon the constitutionality of a city ordinance when, after he was convicted but For instance, in Harvey, we declined t he defendant’s invitation to opine

cannot pass . . . a[ ] [judicial] act”). disputes ‘between or concerning persons,’” and concluding that the “legislature 204, 217 (1818) (determining that it is within judicial power “to decide private Co. of N.H., 125 N.H. 5 p. 9 95, 598 (1984); see Merrill v. Sherburne, 1 N.H. 199, how high the stakes or how important the question.” Petition of Public Serv. the judiciary to deciding cases and not serving as a ‘ s uper law firm,’ no matter 159 N.H. 390, 394 (2009). Generally, “[o] ur constitutional republic confines is limited to deciding actual, and not hypothetical, cases. See State v. Kelly, Except as provided in Part II, Article 74, the judicial power in this State

court, not to the superior court. See Piper, p. 10 10 p. 9 9 N.H. at 330. the authority to issue advisory opinions applies solely to the justices of this extends only to proposed legislation.” Id. Moreover, under Part II, Article 74, the Justices (Appointment of Chief Justice), 150 N.H. at 356. “That authority 10

United, 454 U.S. 464, 472 (1982) (quotation omitted) (discussing Article III of resolution through the judicial pr ocess.” Valley Forge College v. Americans addressing those matters that “are traditionally thought to be capable of effect, limits the judicial role, consistent with a system of separated powers, to In this way, Part II, Article 74 of the State Constitution, in practical

(1976). See Lujan, 504 U.S. at 560 - 61. redress, see Faulkner, 85 N.H. at 151; State v. McPhail, 116 N.H. 440, 442 hypothetical, dispute, see Kelly, 159 N.H. at 394, which is capable of judicial one another, see Harvey, 1 06 N.H. at 448, with regard to an actual, not requires parties to have personal legal or equitable rights that are adverse to requirement of Article III, standing under the New Hampshire Constitution provided in Part II, Article 74 and similar to the “case or controversy” 560 - 61 (1992) (setting forth the elements of Article III standing). Except as of the Federal Constitution. See Lujan v. Defenders of Wildlife, 504 U.S. 555, imposes standing requirements that are similar to those imposed by Article III DeGregory, p. 10 101 N.H. 171, 176 (1957), as a practical matter, Part II, Article 74 Constitution does not contain a provision similar to Article III, see Wyman v. ASARCO Inc. v. Kadish, 49 0 U.S. 605, 617 (1989), and although the State Article III of the Federal Constitution are not binding upon state courts, see As these cases illustrate, although the standing requirements under

rights.” Id. of such a proc eeding is not merely advice, but an authoritative determination of adjudicated upon and conclusively settled by a decree thereunder. The result an issue as between the parties, it cannot well be asserted that rights are not further reasoned that because the statute “provides that a decree shall settle the fixation of rights, as between parties who are in court.” Id. at 151. We See id. at 151 - 52. We explained that the State Constitution “does not prohibit courts to resolve disput es between parties at an earlier stage of the proceeding. Id. at 150. We ruled that the act was constitutional because it merely allowed because it allowed the court to render advisory opinions to private individuals. other.” Id. The claim in Faulkner was that the 1929 act was unconstitutional or titles justiciable without proof of a wrong committed by one party against the (quotation omitted). The purpose of the act was “to make disputes as to rights judgment or decree thereon shall be conclusive.” Faulkner, 85 N.H. at 149 title, to determine the question as between the parties, and th e court ’ s may maintain a petition against any person claiming adversely to such right or act provided: “Any person claiming a present legal or equitable right or title unconstitutional. Id. at 149; see Laws 1929, ch. 86. The 1929 version of the The city argued that the newly enacted Declaratory Judgment Act was

Id. purpose. Id. The trial court ruled in the plaintiffs’ favor, and the city appealed. the plaintiffs (and Standard Oil) had the right to use the property for that kerosene, and oil on the property. Id. The petition was for a declaration that p. 11 11

legislature to transfer from the Governor to the courts the executive’s “most “an individual right by a statute that denominates it as such,” is to allow the undifferentiated public interest” in the “proper administration of the l aws” to for the faithful execution of the laws.” To allow the legislature “to convert the Article 41 of the Constitution, pursuant to which the Governor is “r esponsible The requirement of a concrete personal injury als o implicates Part II,

(“The province of the court is, solely, to decide on the rights of individuals.”). (quotation omitted); see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) decide private disputes between or conce rning persons.” Merrill, 1 N.H. at 204 province of judges to determine what is the law upon existing cases” and “to concerns and to ‘ make laws ’ for the benefit and welfare of the state”). “It is the Merrill, 1 N.H. at 204 (“legislative power” is intended to “regulate publick function of the legislative and executive branches. Lujan, 504 U.S. at 576; see interest in Government observa nce of the Constitution and laws)” is the National L egislature”). “Vindicating the public interest (including the public convenient number of the National Judiciary,” to “examine every act of the (proposing a “Council of revision,” comprised of “the Executive and a America 25 (Gaillard Hunt & James Brown Scott, eds., int’l ed. 1920) Convention of 1787 Which Framed the Const itution of the United States of Federal Convention of 1787. See J. Madison, The Debates in the Federal function, in effect, as a body akin to the c ouncil of r evision proposed at the genera l superintendence over the whole of the State’s government — to nowhere suggests that the framers intended the judiciary to exercise a role of Lujan, 504 U.S. at 577 (quotation omitted). The text of the State Constitution of authority over the governmental acts of another and co - equal department.” concrete, personal injury requirement is eliminated, courts “assum e a position usurp the p owers of the political branches” (quotation omitted)). When the doctrine of standing serves to prevent the judicial process from being used to 166 N.H. ___, ___, 89 A.3d 1202, 1206 (2014) (acknowledging that “[t]he significance.” Lujan, 504 U.S. at 577; see O’Brien v. N.H. Democratic Party, requirement of a concrete, personal injury “has . . . separation - of - powers Valley Forge, 454 U.S. at 482 (discussing Article III standing). Indeed, the abstract in terest in ensuring that the State Constitution is observed. See 491:22, I. The standing required by our constitution is not satisfied by the preserva tion of an orderly and lawful government within [the] district,” RSA “taxpayers . . . shall be deemed to have an equitable right and interest in the The legislature did not comply with Part II, Article 74 by providing that

356. Id.; see Opinion of the Justices (Appointment of Chief Justice), 150 N.H. at conducive to a realistic appreciation of the consequences of judicial ac tion.” the rarified atmosphere of a debating society, but in a concrete factual context assure that the legal questions presented to the court will be resolved, not in equitable rights that are capable of being redressed by the court “tends to the Federal C onstitution). The requirement that parties have personal legal or p. 12 12

Part II, Article 74 because it confers standing upon taxpayers without r equiring In sum, we hold that RSA 491:22, I, as amended in 20 p. 12 12, con travenes

Harvey, 73 N.H. 106, 107 (1904). forth in Part II, Article 74, “cannot be extended by legislative action.” Harvey v. other courts.” “The constitutional authority of the court to give advice,” as set grants it the power to “erect and constitute judicatories and courts of rec ord, or contravene Part II, Article 74 because Part II, Article 4 of the State Constitution The petitioners mistakenly argue that the legislature has the authority to

us. we conclude it would be improper to address it based upon the record before or its applicability to this case; no party raised the issue in the trial court, and State Constitution or to determine either the parameters of such a n exception no occasion to consider whether to recognize a similar exception under the Religion Foundation, Inc., 551 U.S. 587, 602 (2007) (plurality opinion), we have constitutional prohibition against taxpaye r standing,” Hein v. Freedom from 392 U.S. 83, 102 - 03 (1968), created a “narrow exception to the general Although we observe that the United States Supreme Court in Flast v. Cohen, doing so, t he 20 p. 12 12 amendment to RSA 491:22, I, violates Part II, Article 74. advisory opinion cloaked in the garb of a request for declaratory relief”). In abstraction,” and concluding that the relief the plaintiff sought “is really an particularized injury that would remove this case from the realm of pure expended public money because plaintiff was “unable to evince any constitutional authority” to decide whether legislature had unconstitutionally Constitution similar to Part II, Article 74, court is “resolute that [it] lacks the omitted)); cf. Watson, 44 A.3d at 137 (construing provision in Rhode Island ordinarily does not include the power to issue advisory opinions.” (citation a legal challenge rests upon the constitutional principle that the judicial power 192, 199 (2010) (“The requirement that a part y demonstrate harm to maintain Justice), 150 N.H. at 356; s ee Birch Broad. v. Capitol Broad. Corp., 161 N.H. developed factual situations.” Opinion of the Justices (Appointment of Chief to private individuals “adv isory opinions, outside the context of concrete, fully prejudiced.” RSA 491:22, I. In this way, the statute allows t his court to render without having to demonstrate that their “personal rights were impaired or Th e plain language of the amended statute allows parties to bring claims

(discussing Lujan). Imported Into State Constitutional Law?, 108 Colum. L. Rev. 839, 847 (2008) Interpretation: Should Federal Limits on Legislative Conferral of Standing B e power to define injuries.” J. Doggett, “Trickle Down” Constitutional action without [a personal] injury, and [the legislature] does not have unlim ited pursuant to our State Constitution, “there can be no constitutional cause of “the faithful execution of the laws,” N.H. CONST. pt. II, art. 41. Accordingly, important constitutional duty,” Lujan, 504 U.S. at 576, 577, which is to ensure p. 13 13

establish their injury, “requires speculating that elected officials will increase a reduction in revenue, if that is the consequence of the [benefits].” Id. To plaintiffs would suffer an injury “depends on how legislators respond to a increases government revenues.” Id. Further, the Court observed, whether the The very point of the tax benefits is to spur economic activity, which in turn unclear that tax breaks of the sort at issue here do in fact deplete the treasury: alleged injury was “conjectural and hypothetical,” in part, because “it is hypothetical.” Id. at 344 (quotations omitted). The Court explained that the common with people generally,” and because the injury was “conjectural and but was instead “a grievance the taxpayer [s] suffer [ed] in some indefinite way in standing because the ir claimed injury was not “concrete and particularized,” The United States Supreme Court determined that the plaintiffs lacked disproportionate burden s” on the plaintiffs. Id. at 343 (quotations omitted). “diminish [ed] the total f unds available for lawful uses and impos [ed] afforded to DaimlerChrysler because the benefits “deplet [ed]” state funds, 3 3 8 - 3 9. The plai ntiffs claimed that they were injured by the tax benefits expand its jeep assembly plant already located in the city. Cuno, 547 U.S. at Corporation (DaimlerChrysler) in exchange for DaimlerChrysler’s agreement to taxpayers to tax benefits awarded by the city of Toledo to DaimlerChrysler Watson, 44 A.3d p. 13 130, instructive. Cuno involved a challenge by Ohio standing, we find DaimlerChrysler Corp. v. C uno, 547 U. S. 332 (2006), and the public schools.” In assessing whether the petitioners have established children in or teach in the public schools by taking state funding away from Hampshire governments and w ill further harm certain [petitioners] who have harm all the [petitioners] as taxpayers by imposing net fiscal losses on New The petitioners argue that they have standing “because the Program will

“hypothetical set of facts.” Avery, 162 N.H. at 608 (quotations omitted). relations of parties having adverse interests,” and must not be based upon a omitted). The claims raised must be “definite and concrete touching the legal relief.” Delude v. Town of Amherst, p. 13 137 N.H. 361, 364 (1993) (quotation gear with [the party’s] adversary, and thus to w arrant the grant of judicial are sufficiently complete, mature, proximate and ripe to place [the party] in this requirement, a party seeking declaratory relief must “show that the facts or statute. Avery v. N.H. Dep’t of Educ., 162 N.H. 604, 608 (2011). To meet right of the party has been impaired or prejudiced by the application of a rule 491:22, I, before the 2012 amendment thereto, a party must show that some To establish standing to bring a declaratory judgment proceeding under RSA established standing to challenge the constitutionality of RSA chapter 77 - G. unconstitutional, we next address whether the petitioners otherwise have Having concluded that the 2012 amendment to RSA 491:22, I, is

B. Petitioners’ Standing Under Prior La w

prejudiced.” RSA 491:22, I. them to demonstrate that any of their “personal rights were impaired or p. 14 14

as a result of the program. There is no evidence that by granting tax credits to taxes,” this, too, is insufficient to show that LRS has suffered a personal injury “has paid and continues to pay business enterprise taxes or business profits To the extent that the petitioners a rgue that LRS has standing because it

Avery, 162 N.H. at 608. been prejudiced or impaired as a result of the program’s implementation. See program has been implemented. They must show that some right of theirs has must show more than that the cas e has been litigated fully and that the implemented.” However, to establish that they have standing, the petitioners “because this is a fully litigated case challenging a Program that has been El sewhere in their brief, the petitioners argue that they have standing

schools, assuming that occurs. See Kadish, 490 U.S. at 6 p. 14 14 - 15. the legislature will respond to the decrease in students attending public whether a decrease in students will reduce public school costs and about how “net fiscal losses.” The prospect that this wil l occur requires speculati on about is unclear whether, as the petitioners allege, local governments will experience result in a decrease in the number of students attending local public schools, it necessarily speculative. See Cun o, 547 U.S. at 344. Even if the tax credits injury asserted here — the loss of money to local school districts — is 608 (quotation omitted); s ee Kadish, 490 U.S. at 616. Moreover, the purported “definite and concrete” injury sufficient to confer standing. Avery, 162 N.H. at interest in education. Such a special interest, alone, does not constitute a school teachers, at best, this establishes that those petitioners have a special Id. Although some of the petitioners have school - aged children or are public indistinguishable, generalized wrong allegedly suffered by the public at large.” governments does not articulate a personal injury. It “is the same, petitioners’ claim that the program will result in “net fiscal losses” to local alleged in Cuno and Watson, are insuffi cient to establish standing. The The personal injuries alleged by the petitioners in this case, like those

suffered by the public at large.” Id. at 137. to any injury, it is the same, indistinguishable, generalized wrong allegedly he “complained of no concrete, particularized harm; to the degr ee he can point The Rhode Island Supreme Court concluded that he lacked standing because legislative grants violated various state constitutional provisions. Id. at 132. judgment that the process the legislatu re used to allocate $2.3 million for an individual taxpayer. Watson, 44 A.3d at 136. He sought a declaratory The plaintiff i n Watson was a state legislator who sued in his capacity as

“[n] either sort of speculation suffices to support standing.” Id. increased revenue in the form of tax reductions.” Id. The C ourt held that benefit of the taxpayer because legislators will pass along the supposed requires speculating that abolishing the challenged credit will redound to the taxpayer - plaintiff’ s tax bill to make up a deficit; e stablishing redressability p. 15 15

HICKS, CONBOY, LYNN, and BASSET T, JJ., concurred.

constitutional requirements necessary for standing to exist. RSA 491:22 which purports to confer standing, are not sufficient to meet the and lawful governme nt, upon which the petitioners rely, and the amendment to seek judicial relief. We hold only that the generalized interest in an efficient sufficiently personal and concrete interest to confer standing, the taxpayer may standing to challenge governmental actions. When a taxpayer has a Our decision in this case does not mean that a taxpayer can neve r have

2652, 2661 (2013)). 166 N.H. at ___, 8 9 A.3d at 1206 (quoting Hollingsworth v. Perry, 133 S. Ct. dispute and to “settle” it for the sake of convenience and efficiency. ’” O’Brien, put aside the natural urge to proceed directly to the merits of an important keeping the Judiciary’ s power within its proper constitutional sphere, we must their suit.” Id. “‘ In light of th [e] overriding and time - honored conc ern about parties are nonexistent simply because they have not joi ned [the petitioners] in Forge, 454 U.S. at 489. “Moreover, we are unwilling to assume that injured standing into a requirement that must be observed only when satisfied.” Valley not a reason to find standing wher e none exists.”). “This view would convert if the individual plaintiffs lack standing, no one will have standing to sue, is Revenue, 672 N.E.2d 504, 509 (Mass. 1996) (“[A]n unfounded assumption that, is a reason to find standing. See id. at 489; Tax Equity Alliance v. Com’ r of they lack standing then no one has standing, we disagree with them that this the requisite personal harm. To the extent that the petitioners argue that if that other individuals would have standing if such individuals demonstrated Governor has standing to challenge RSA chapter 77 - G, they also ack nowledged Although at oral argument, the intervenors contended that only the

brackets omitted). substitute for the showing of injury itself.” Id. (quotation, citation, and commenced by one who has been injured in fact; it is not a permissible presentation of issues is the anticipated consequence of proceedings Forge, 454 U.S. at 486. “That concrete adverseness which sharpens the the intensi ty of the litigant’s interest or the fervor of his advocacy.” Valley principle of separation of church and State, but standing is not measured by eviden t that the [petitioners] are firmly committed to the constitutional establish that they have standing to bring their constitutional claim. “It is them as a consequence of the alleged constitutional error, they have failed to Because the petitioners fail to identify any personal injury suffered by

required to pay. other businesses, the program alters the amount of taxes LRS is or will be