Bill Duncan & a. v. State of New Hampshire & a., 166 N.H. 630

Background

In 2012 the New Hampshire Legislature enacted an Education Tax Credit program (RSA ch. 77-G) creating business tax credits for contributions to scholarship organizations that fund students to attend nonpublic schools or public schools outside their district; program caps and scholarship amounts were specified.
Petitioners (eight residents/taxpayers and LRS Technology Services) sued for a declaratory judgment in superior court, alleging the program violates Part II, Article 83 of the New Hampshire Constitution (prohibiting tax-raised money for religious schools).
The superior court found petitioners had standing under a 2012 amendment to RSA 491:22, I (which expressly conferred taxpayer standing without showing personal injury) and held portions of RSA ch. 77-G violated Article 83; it severed offending provisions and limited scholarship payments to religious schools.
The State and intervenors appealed; the Supreme Court reviewed whether the 2012 amendment to RSA 491:22, I is constitutional and whether petitioners otherwise had standing.
The Supreme Court held the 2012 amendment unconstitutional because it permits taxpayers to sue without demonstrating a personal, concrete injury (running afoul of Part II, Article 74’s limits on advisory opinions and the separation of powers).
Because the amendment is invalid and the petitioners could not show a concrete, personal injury under pre-amendment law, the Court vacated the judgment and remanded with instructions to dismiss for lack of standing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Is the 2012 amendment to RSA 491:22, I (conferring taxpayer standing without personal injury) constitutional?	Amendment restores long-standing taxpayer right to seek declaratory relief; legislators may confer standing.	Amendment allows advisory opinions to private parties, violates Part II, Art. 74 and separation of powers.	Unconstitutional: statute permits suits without personal injury and thus authorizes advisory-type actions contrary to Part II, Art. 74.
2) Assuming amendment invalid, do petitioners have standing under prior law?	Petitioners allege generalized fiscal harm to state/local governments and some allege special interest as parents/teachers; program is implemented so injury is concrete.	Generalized taxpayer grievance and speculative fiscal effects insufficient; no concrete, particularized injury shown.	No standing: alleged injuries are generalized/speculative; petitioners failed to show a personal, concrete impairment of legal or equitable rights.
3) Did trial court properly adjudicate Article 83 challenge on merits?	(Petitioners) Program diverts tax-raised money to religious schools, violating Article 83.	(State/intervenors) Challenge improper because petitioners lack standing under constitutionally required personal-injury standard.	Court did not reach merits due to lack of standing; prior judgment vacated and case dismissed.
4) Do separation-of-powers or gubernatorial-enforcement concerns permit legislative expansion of standing?	Legislature may define statutory standing for declaratory relief.	Allowing broad taxpayer standing usurps executive enforcement role and judicially supervises government broadly.	Legislature cannot eliminate the constitutional requirement of a concrete personal injury; conferral of such broad standing would conflict with separation-of-powers principles.

Key Cases Cited

Baer v. N.H. Dep’t of Educ., 160 N.H. 727 (2010) (discusses conflicting New Hampshire lines on taxpayer standing and requires personal-rights impairment under RSA 491:22)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (federal standing requires concrete, particularized injury and is rooted in separation of powers)
Flast v. Cohen, 392 U.S. 83 (1968) (recognized narrow exception to federal taxpayer standing)
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) (generalized taxpayer grievances insufficient for Article III standing; speculative fiscal effects do not establish injury or redressability)
Valley Forge Coll. v. Americans United, 454 U.S. 464 (1982) (generalized public interest does not satisfy standing; courts limited to concrete adversarial disputes)
Faulkner v. Keene, 85 N.H. 147 (1931) (Declaratory Judgment Act constitutional where it authoritatively determines rights between adverse parties, not an advisory opinion)
Harvey v. Harvey, 73 N.H. 106 (1904) (legislature cannot extend court authority to give advisory opinions beyond constitutional allowance)
Merrill v. Sherburne, 1 N.H. 199 (1818) (judicial power limited to deciding rights of individuals; not to regulate public concerns)