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Duncan v. State

Supreme Court of New Hampshire

August 28, 2014

Bill Duncan & a.
v.
The State of New Hampshire & a

Argued April 16, 2014.

Page 914

[Copyrighted Material Omitted]

Page 915

[Copyrighted Material Omitted]

Page 916

Editorial Note:

Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.

Strafford.

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

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

Institute for Justice, of Arlington, Virginia (Richard D. Komer and Timothy D. Keller on the brief, and Mr. Komer orally), and Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael J. Tierney on the brief), for the intervenors.

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

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

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

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

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

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

Cravath, Swaine & Moore LLP, of New York, New York (Roger G. Brooks and Benjamin H. Diessel on the brief), and McCandless & Nicholson, P.L.L.C., of Concord (Roy S. McCandless on the brief), for Concord Christian Academy, Grace Christian School, Concord Christian Academy Giving and Going Alliance, and Roman Catholic Bishop of Manchester, as amici curiae.

Lucy C. Hodder, of Concord, legal counsel to the Governor, by brief, and John M. Greabe, of Hopkinton, by brief, for the Honorable Margaret W. Hassan, as amicus curiae.

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

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

Joshua P. Thompson, of Sacramento, California, by brief, and William L. O'Brien, of Mont. Vernon, by brief, for Pacific Legal Foundation, Greg Hill, Jim Forsythe, William O'Brien, Pamela Tucker, Michael Balboni, Fenton Groen, and Andrew Sanborn, as amici curiae.

DALIANIS, C.J. HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.

OPINION

Page 917

Dalianis, C.J.

This is an appeal and cross-appeal from an order of the Superior Court (Lewis, J.) ruling in favor of the petitioners, eight individual New Hampshire residents and taxpayers and LRS Technology Services, LLC (LRS), on their petition for a declaratory judgment that the Education Tax Credit program (the program), see RSA ch. 77-G (Supp. 2013), violates Part II, Article 83 of the State Constitution. Defending the program are the State and the intervenors. The intervenors are three New Hampshire citizens, who wish their children to receive scholarship funds under the program, and the Network for Educational Opportunity, a non-profit organization involved with the program. The trial court ruled that the petitioners had standing under RSA 491:22, I (Supp. 2013). We do not reach the merits of the petitioners' declaratory judgment petition because we conclude that: (1) the 2012 amendment to RSA 491:22, I, which allows taxpayers to establish standing without showing that their ...


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