NH Supreme Court Runs Amok

3 minute read

Today’s NH Supreme Court ruling in Duncan v. NH  is great for low-income students who can still get scholarships to attend their  school of choice  (as they say, the rich always have school choice).

What’s not so great is how this case was decided.  On first analysis, it appears to be a huge abuse of power by the NH Supreme Court.

The Court found that Duncan did not have standing to argue the case as a taxpayer.    Because this is in contravention of NH Statute, as codified by the Republican Legislature and Democratic Governor in 2012, the Court also found that the Statute is unconstitutional.  Which part of the Constitution does the Court claim the statute violates?

[Art.] 74. [Judges to Give Opinions, When.] Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions.

This article of the NH Constitution unambiguously requires the Court to render opinions to the Legislature (General Court), Governor, and Executive Council.  Today the court claims that it also prevents it from ever considering an argument from taxpayers, despite a long history of such decisions (many such examples are cited in the decision). By extension, the decision also claims that aggregate economic arguments may not be raised in NH Courts, since such arguments would create standing, which it claims does not exist. While the Obama administration has been arguing against taxpayer standing, such recognition is still accepted at the Federal level.

The court argues that any opinion it could render to a taxpayer would create “advisory opinions to private individuals” and as such exceeds its authority under Article 74. This argument does not pass the laugh test.

As the Court states in its decision:

“The simplest and most obvious interpretation of a constitution, if in itself sensible, is most likely to be that meant by the people in its adoption.”

The simple and sensible interpretation of Article 74 is that it is a requirement on the Courts, not a barring of the Courts to hear arguments from taxpayers.

This leaves the People with three distinct possibilities:

  • First, that the Framers of the Constitution meant what the Court claims but completely failed to articulate it and instead deeply hid the meaning in Article 74 to be discovered in 2014. This argument fails by the very quote they cite above.
  • Second, that the Court is simply not competent to interpret the Constitution.
  • Third, that the Court simply disliked the “restored” standing the 2012 bill returned to the taxpayers and chose to find a contrived path to find it unconstitutional.  Besides being an improper use of Court power to advance a political agenda, doing so would also be throwing Duncan under the bus.  One need not agree with the plaintiff to agree that he has been treated unfairly by the Court.

There are only two remedies left in NH to the People and the Legislature in the latter two cases. First is a Constitutional Amendment. It would be quite odd to have the Constitution describe the particulars of criteria for standing at the Supreme Court – that is a job properly left to Statute (as has been the case)

The second remedy is impeachment of the judges in this case (which was a unanimous decision). While the term ‘impeachment’ has drastic connotations in modern America, due to the popular notion of US Presidential impeachments being a high bar, it is, in reality, simply a tool that the Legislature has to “unappoint” judges that it finds are no longer suitable for the job. Either of the latter two possibilities are adequate criteria for such a finding.

The political feasibility of such an action will likely be determined this November.