What To Listen For On Wednesday, When The Supreme Court of New Hampshire Hears Arguments In The Education Tax Credit Case

            This Wednesday, April 16th, the Supreme Court of New Hampshire (“SCONH”) will hear arguments in Duncan et al. v. State of New Hampshire et al., an appeal involving the constitutionality of an education tax credit program that went into effect in 2013, and was promptly and successfully challenged as unconstitutional in the Superior Court by various liberal-activists. [1]  The thing to listen for at Wednesday’s hearing is the term “standing,” which is legal jargon for eligibility to bring a lawsuit.  Bill Duncan and his fellow plaintiffs do not have it, and for this reason SCONH should rule that the Superior Court committed legal error in not dismissing the case.  If SCONH allows the plaintiffs to argue the merits of the case without addressing standing, or if SCONH only deals with standing in a perfunctory way, that would suggest that SCONH is inclined to let the Superior Court’s clearly erroneous interpretation of the New Hampshire constitution stand or to reach the same or a similar result through its own exercise of judicial activism. 

1.         Background

            The appeal is from a decision of the Superior Court declaring the State’s education tax credit program partially unconstitutional.  The program allows businesses to take tax credits for funding scholarships for students attending nonpublic schools, public schools outside their school districts or who are home-schooled.  The program went into effect in 2013, and various liberal-activists promptly sued, claiming that the program is unconstitutional because it uses tax-revenues to support parochial schools.

            More particularly, business-taxpayers receive a credit against their business taxes of 85 percent of the donations made to “scholarship organizations,” which use these donations to provide scholarships to “eligible students.”  The scholarships, which are capped at $2,500.00, are used to help the students pay for tuition at the “qualified school” of their choice.  Qualified schools encompass nonpublic schools, including schools where religious instruction is part of the curriculum, public schools outside of the students’ district, and homeschooling.

            The plaintiffs raised a number of state constitutional challenges to the Education Tax Credit program directed at the inclusion of “religious schools,” [2] but the trial court based its ruling on only Part II, Article 83, or more particularly an 1877 amendment to this provision, which in relevant part says “no money raised by taxation shall ever be granted or applied for the use of the schools or institutions of any religious sect or denomination.”

            The Judge who issued the Superior Court decision was John Lewis, who subsequently retired and was recently reprimanded by the Judicial Conduct Committee for statements that suggested he was biased against female lawyers.

2.         Standing.

            In order to have standing one must have suffered or be about to suffer a personal injury that the law was designed to protect against.  To quote SCONH, a litigant must “demonstrate harm to maintain a legal challenge.”[3]  The term “harm” means a “a legal injury against which the law was designed to protect.”[4]  The injury must be personal to the litigant.[5] 

3.         Why Standing Is A Big Deal.

            SCONH has said that “[t]he requirement that a party demonstrate harm to maintain a legal challenge rests upon the constitutional principle that the judicial power ordinarily does not include the power to issue advisory opinions.”[6]  In other words, standing is a constitutional requirement.

            The New Hampshire Constitution does not define the “judicial power,”[7] but in Part I, Article 37 it sets limits on the judicial power by requiring that it be “kept as separate from, and independent of” as possible from the legislative and executive powers, which are defined.[8]  In other words, Article 37 prohibits the judicial power from being exercised in a manner that would interfere with the powers of the other branches:

In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity. [9]

            An advisory opinion is an opinion involving a theoretical question of law.  When a court answers theoretical questions of law it acts in a super-legislative capacity.  Instead of settling an actual dispute, the Court is superintending the legislative process.  The doctrine of standing prevents the judiciary from interfering with the legislative power by restricting the judiciary to deciding real disputes.

            Part II, Article 74 is an exception to Part I, Article 37’s prohibition of advisory opinions.  Part II, Article 74 requires that the justices of the SCONH issue advisory opinions upon the request of the other branches:

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. 

SCONH has said that, “Article 74 does not vest the authority to issue advisory opinions with the supreme court, as an institution, but rather with the individual supreme court justices. When the justices of the supreme court give an advisory opinion pursuant to Part II, Article 74, they do not act as a court, but as constitutional advisors to the legislative or executive branches.”[10] 

            Separation of powers concerns means that SCONH has “no authority under Part II, Article 74 to issue advisory opinions to either branch of the legislature regarding existing legislation.”[11]  Its authority extends only to proposed legislation.[12]

            Needless to say, “[i]t has been denied consistently that there is any right to give [advisory] opinions to private litigants.”[13]  

            In sum, standing is a big deal because it is a constitutional requirement.        

3.         Bill Duncan And His Fellow Plaintiffs Do Not Have Standing.

            The plaintiffs do not claim to have suffered any personal injury that Part I, Article 6 and Part II, Article 83 protect against.  More particularly, they do not argue that the State is using their tax dollars to fund parochial schools.  Rather, they claim standing under a statute that gives standing to any taxpayer in a taxing district to challenge governmental “conduct [in that district] that is unlawful or unauthorized.”    

            Defendants that were allowed to intervene in the case argued that the statute relied upon by the plaintiffs violated the separation of powers because it granted standing to the plaintiffs in the absence of personal injury. [14]   

            Defendants are clearly correct.  Granting a plaintiff standing based only upon a public grievance held in common with other citizens would violate Part I, Article 37 because it would put the the judiciary in the position of superintending the legislative process.

            Finally, to the extent that the plaintiffs maintain that they have suffered injury because the tax credit forces them to pay higher taxes, I would direct you to a case decided by the United States Supreme Court, DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), which considered and rejected such an argument:

Plaintiffs’ alleged injury is also “conjectural or hypothetical” in that it depends on how legislators respond to a reduction in revenue, if that is the consequence of the credit. Establishing injury requires speculating that elected officials will increase a taxpayer-plaintiff’s tax bill to make up a deficit; establishing redressability requires speculating that abolishing the challenged credit will redound to the benefit of the taxpayer because legislators will pass along the supposed increased revenue in the form of tax reductions. Neither sort of speculation suffices to support standing. See ASARCO Inc. v. Kadish, 490 U. S. 605, 614 (1989) (opinion of Kennedy, J.) (“[I]t is pure speculation whether the lawsuit would result in any actual tax relief for respondents”); Warth, 422 U. S., at 509 (criticizing a taxpayer standing claim for the “conjectural nature of the asserted injury”).

A taxpayer plaintiff has no right to insist that the government dispose of any increased revenue it might experience as a result of his suit by decreasing his tax liability or bolstering programs that benefit him. To the contrary, the decision of how to allocate any such savings is the very epitome of a policy judgment committed to the “broad and legitimate discretion” of lawmakers, which “the courts cannot presume either to control or to predict.” ASARCO, supra, at 615 (opinion of Kennedy, J.). Under such circumstances, we have no assurance that the asserted injury is “imminent”— that it is “certainly impending.” Whitmore v. Arkansas, 495 U. S. 149, 158 (1990) (internal quotation marks omitted); see Defenders of Wildlife, 504 U. S., at 564-565, n. 2.


[1]           For example, the first-named plaintiff is Bill Duncan, who is “primarily responsible” for an organization called Advancing New Hampshire Public Education.  The organization’s website reflects the liberal orthodoxy on public education; i.e., more spending and more top-down regulation “advances” public education.

[2]           In addition to their claims that the program violated two provisions of the New Hampshire constitution, Part I, Article 6 and Part II, Article 83, that the plaintiffs claim prohibit assisting or furthering “religious education,” the plaintiffs also claimed that the program violates provisions of the New Hampshire constitution requiring equal taxation.  The Superior Court’s decision was based solely on Part II, Article 83.

[3]           Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578, 588 (2000).

[4]           Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578, 587 (2000) (quoting Roberts v. General Motors Corp., 138 N.H. 532, 535 (1994)).

[5]           Libertarian Party of New Hampshire v. Secretary of State, 158 N.H. 194, 196 (2006).

[6]           Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578, 588 (2000) (quoting Town of Orford v. N.H. Air Resources Comm., 128 N.H. 539, 542 (1986)).

[7]           N.H. Const. Pt. II, Art. 72-a Merrill v. Sherburne, 1 N.H. 199, 203 (“No particular definition of judicial powers is given in the constitution …”).

[8]           N.H. Const. Pt. II, Arts. 4, 5; N.H. Const. Pt. II, Arts. 41, 43, 44, 46.

[9]           In the Claremont/Londonderry education funding cases, the Supreme Court has implied that the “chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity” allows it to take on legislative and executive powers.  In Claremont School Dist. v. Governor (Motion for Extension of Deadlines), 143 N.H. 154, 160-61 (1998), for example: “The Separation of Powers Clause of the State Constitution, Part I, Article 37, prevents one branch of government from encroaching on the power of another. … Here, however, we emphasize the final part of that provision, which speaks of “that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.’”  This is not the meaning given this language by earlier supreme courts.  In Merrill v. Sherburne, 1 N.H. 199, 207 (1818): “It has been contended, and we with readiness admit, that from the close of this article, the inference is clear, that our constitution did not intend to make a total separation of the three powers of the government. The executive was to be united with the legislature in the passage of laws; and the former was to depend upon the latter for his salary. A part of the judiciary, too, was united with a part of the legislature in the trial of some impeachments; and all of the judiciary were made dependent on the executive for appointments and on the legislature and executive for the erection of courts, the apportionment of jurisdiction, for compensation and for removal by address.  But these connexions and dependencies are not left to implication; they are all created by subsequent express provisions: and the above article was probably clothed in such cautious language that it might not conflict with those provisions …”

[10]         Piper v. Meredith, 109 NH 328, 330 (1969).

[11]         Opinion of the Justices, 121 N.H. 280, 282 (1981).

[12]         Opinion of the Justices, 123 N.H. 510, 511 (1983).

[13]         Piper v. Meredith, 109 NH 328, 330 (1969).

[14]         The intervener-defendants did, but not the Attorney General.  He argued that the individual plaintiffs did not have standing under the declaratory judgment statute (RSA 491:22) based on a strained reading of the statute, but conceded that the business-taxpayer had standing.  In his defense, he was in somewhat of a quandary because he is required by statute to defend the constitutionality of all laws.  RSA 7:6. 

More on How Senator Shaheen Underpays Women on her Staff

As a follow-up to yesterday’s post on “Equal Pay Day,” I took a look at how Senator Shaheen pays the women on her staff compared to the top-earning women and the men on her staff compared to the top-earning men.  Again, it appears the women come up short.  The average salary for a female staffer is only 47 percent of the average for the top five women, while the average salary for a male staffer is 54 percent of the average for the top five men.  

FEMALE MALE
NAME  SALARY NAME  SALARY
Erica Lesley Anhalt,  $22,500.00 Nicholas Brown  $18,750.00
Liza Beth Bruno  $13,624.99 Justin Burkhardt  $52,500.00
Emily Cashman  $24,000.00 Peter Donald Clark  $16,832.62
Meaghan D’Arcy  $27,499.92 Joel Whitcomb Colony  $26,166.63
Danielle Geanacopoulos  $18,120.81 Patrick Day  $26,499.96
Laura Haselton  $18,791.66 Robert Diznoff  $42,083.26
Sarah Holmes  $30,000.00 Michael Gaffin  $1,371.00
Abbie James  $16,166.62 Mark Gordon  $14,888.82
Maura Keefe  $81,000.00 Charles Henderson  $21,750.00
Elizabeth Kenigsberg  $27,499.92 Jonathan Jarvis  $18,249.96
Emily Livingston  $1,652.77 Chad Kreikemeir  $52,500.00
Alison MacDOnald  $44,791.66 Matthew Lahey  $34,249.92
Jennifer MacLellan  $34,999.92 Scott Merrick  $27,000.00
Moira McConaghey  $54,166.60 Philip Munson  $23,249.95
Laura O’Neill  $7,822.17 Christopher Neary  $32,499.96
Letizia Ortiz  $21,750.00 William Sheffer  $6,333.33
Cara Osborn  $19,999.92 Shripal Shah  $47,499.96
Sherri Pierce  $20,749.92 Luis Urbina  $6,999.97
Alexandra Priest  $8,666.66 Michael Vlacich  $59,999.92
Catherine Ramsey  $18,750.00 Andrew Zabel  $22,500.00
Judy Reardon  $64,999.92
Candace Scheffer  $24,000.00
Marissa Serafino  $16,416.61
Pamela Slack  $21,750.00
Bethany Yurek  $20,749.92
TOTAL SALARY  $660,469.99  Average Salary  $26,418.80  $551,925.26  Average Salary  $27,596.26
TOTAL TOP FIVE  $279,958.10  Average Salary  $55,991.62  $254,583.14  Average Salary  $50,916.63
47% 54%

To be clear, I don’t think this shows that anybody on Senator Shaheen’s staff is underpaid or overpaid.  What it shows is that using a similar methodology to the methodology that Shaheen uses to claim that a woman only earns 77 percent of what a man makes –that is not allowing for differences in positions, hours-worked, experience– one can look at how Shaheen pays her staff and claim “discrimination.”

Jeanne Shaheen Pays Women On Her Staff 13 Percent Less Than Men

Yesterday, the Washington Free Beacon reported that Senator Jeanne Shaheen pays her female staffers approximately $6,300.00 less, on average, than she pays her male staffers.  This figure was based on the 2013 fiscal year.  The context was that yesterday was proclaimed “Equal Pay Day” by the Democrats.  Shaheen put out a press release, which in part said, “Currently, women in New Hampshire make just 78 cents on the dollar compared to their male counterparts and nationwide women and their families lose an estimated $434,000 over the course of their careers due to pay discrimination.”  The disparity in pay among Shaheen’s own staff obviously leaves her open to charges of hypocrisy.    

I took a look at legistorm, and for the period April 1, 2013 through September 30, 2013, a shorter period than the Washington Free Beacon looked at, also found a disparity.

First, let’s look at it the way the Democrats look at it when they come up with the 77 cents on the dollar figure.  That is, the average salary for all females versus the average salaries for all males, making no adjustments for part-time versus full-time or type of work:

SHAHEEN AVERAGE STAFF SALARY 4/1/13-9/30/13 – ALL STAFF
FEMALE MALE
NAME  SALARY NAME  SALARY
Erica Lesley Anhalt,  $22,500.00 Nicholas Brown  $18,750.00
Liza Beth Bruno  $13,624.99 Justin Burkhardt  $52,500.00
Emily Cashman  $24,000.00 Peter Donald Clark  $16,832.62
Meaghan D’Arcy  $27,499.92 Joel Whitcomb Colony  $26,166.63
Danielle Geanacopoulos  $18,120.81 Patrick Day  $26,499.96
Laura Haselton  $18,791.66 Robert Diznoff  $42,083.26
Sarah Holmes  $30,000.00 Michael Gaffin  $1,371.00
Abbie James  $16,166.62 Mark Gordon  $14,888.82
Maura Keefe  $81,000.00 Charles Henderson  $21,750.00
Elizabeth Kenigsberg  $27,499.92 Jonathan Jarvis  $18,249.96
Emily Livingston  $1,652.77 Chad Kreikemeir  $52,500.00
Alison MacDOnald  $44,791.66 Matthew Lahey  $34,249.92
Jennifer MacLellan  $34,999.92 Scott Merrick  $27,000.00
Moira McConaghey  $54,166.60 Philip Munson  $23,249.95
Laura O’Neill  $7,822.17 Christopher Neary  $32,499.96
Letizia Ortiz  $21,750.00 William Sheffer  $6,333.33
Cara Osborn  $19,999.92 Shripal Shah  $47,499.96
Sherri Pierce  $20,749.92 Luis Urbina  $6,999.97
Alexandra Priest  $8,666.66 Michael Vlacich  $59,999.92
Catherine Ramsey  $18,750.00 Andrew Zabel  $22,500.00
Judy Reardon  $64,999.92
Candace Scheffer  $24,000.00
Marissa Serafino  $16,416.61
Pamela Slack  $21,750.00
Bethany Yurek  $20,749.92
AVERAGE  $26,418.80  $27,596.26  $(1,177.46) -4%

Now let’s remove any salaries less than $10,000.00 on the assumption that these are part-time salaries that might skew the results.  It actually gets worse for Shaheen, as the disparity doubles from 4 percent to 8 percent:

SHAHEEN AVERAGE STAFF SALARY 4/1/13-9/30/13 – NO PART TIME
FEMALE MALE
NAME  SALARY NAME  SALARY
Erica Lesley Anhalt,  $22,500.00 Nicholas Brown  $18,750.00
Liza Beth Bruno  $13,624.99 Justin Burkhardt  $52,500.00
Emily Cashman  $24,000.00 Peter Donald Clark  $16,832.62
Meaghan D’Arcy  $27,499.92 Joel Whitcomb Colony  $26,166.63
Danielle Geanacopoulos  $18,120.81 Patrick Day  $26,499.96
Laura Haselton  $18,791.66 Robert Diznoff  $42,083.26
Sarah Holmes  $30,000.00
Abbie James  $16,166.62 Mark Gordon  $14,888.82
Maura Keefe  $81,000.00 Charles Henderson  $21,750.00
Elizabeth Kenigsberg  $27,499.92 Jonathan Jarvis  $18,249.96
Chad Kreikemeir  $52,500.00
Alison MacDOnald  $44,791.66 Matthew Lahey  $34,249.92
Jennifer MacLellan  $34,999.92 Scott Merrick  $27,000.00
Moira McConaghey  $54,166.60 Philip Munson  $23,249.95
Christopher Neary  $32,499.96
Letizia Ortiz  $21,750.00
Cara Osborn  $19,999.92 Shripal Shah  $47,499.96
Sherri Pierce  $20,749.92
Michael Vlacich  $59,999.92
Catherine Ramsey  $18,750.00 Andrew Zabel  $22,500.00
Judy Reardon  $64,999.92
Candace Scheffer  $24,000.00
Marissa Serafino  $16,416.61
Pamela Slack  $21,750.00
Bethany Yurek  $20,749.92
AVERAGE  $29,196.75  $31,601.23  $(2,404.49) -8%

Finally, let’s remove Judy Reardon, who is the highest paid staffer, but whose job appears to be acting as Shaheen’s political enforcer on the assumption that we shouldn’t include her salary because (hopefully) the rest of the staff work on matters pertaining to governance as opposed to waging a permanent political campaign.

SHAHEEN AVERAGE STAFF SALARY 4/1/13-9/30/13 – NO PART TIME, NO JUDY REARDON
FEMALE MALE
NAME  SALARY NAME  SALARY
Erica Lesley Anhalt,  $22,500.00 Nicholas Brown  $18,750.00
Liza Beth Bruno  $13,624.99 Justin Burkhardt  $52,500.00
Emily Cashman  $24,000.00 Peter Donald Clark  $16,832.62
Meaghan D’Arcy  $27,499.92 Joel Whitcomb Colony  $26,166.63
Danielle Geanacopoulos  $18,120.81 Patrick Day  $26,499.96
Laura Haselton  $18,791.66 Robert Diznoff  $42,083.26
Sarah Holmes  $30,000.00
Abbie James  $16,166.62 Mark Gordon  $14,888.82
Maura Keefe  $81,000.00 Charles Henderson  $21,750.00
Elizabeth Kenigsberg  $27,499.92 Jonathan Jarvis  $18,249.96
Chad Kreikemeir  $52,500.00
Alison MacDOnald  $44,791.66 Matthew Lahey  $34,249.92
Jennifer MacLellan  $34,999.92 Scott Merrick  $27,000.00
Moira McConaghey  $54,166.60 Philip Munson  $23,249.95
Christopher Neary  $32,499.96
Letizia Ortiz  $21,750.00
Cara Osborn  $19,999.92 Shripal Shah  $47,499.96
Sherri Pierce  $20,749.92
Michael Vlacich  $59,999.92
Catherine Ramsey  $18,750.00 Andrew Zabel  $22,500.00
Candace Scheffer  $24,000.00
Marissa Serafino  $16,416.61
Pamela Slack  $21,750.00
Bethany Yurek  $20,749.92
AVERAGE  $27,491.83  $31,601.23  $(4,109.40) -13%

According to Shaheen, these statistics show that she is discriminating against the women on her staff.  I am sure she would dispute that.  But why should a presumption of discrimination attach to others, if it doesn’t attach to Shaheen?

Help Senator Shaheen Pick A New Campaign Slogan

After a political career that spans three decades, 1992 to the present, it’s understandable that Jeanne Shaheen is having a hard time getting her latest political campaign untracked.  So let’s give Jeannie a hand by helping her pick a campaign slogan for 2014.  Here are three:

1.     BECAUSE IT’S NEVER TOO LATE TO BOMB SYRIA

2.     BECAUSE SOROS NEEDS ME IN THE SENATE

3.     BECAUSE YOU CAN’T HANDLE THE TRUTH

Obama Engaging in Projection When He Claims Putin Acting Out of Weakness

Remember the 2012 Presidential debate where Barack Obama mocked Mitt Romney for saying that Russia was the United State’s top geopolitical adversary?  Well Obama was reminded of that recently, in light of Russia’s annexation of Crimea, and Obama essentially doubled down on his 2012 position:

“Russia is a regional power that is threatening some of its immediate neighbors — not out of strength but out of weakness,” Obama said in response to a reporter’s question about whether his 2012 election opponent, Mitt Romney, was right to characterize Russia as America’s biggest geopolitical foe.

Given that Obama called for Syria’s Assad to step aside in 2011, but in 2013 accepted Assad’s continued presence in Syria as part of the deal brokered by the Russians to dispose of Syria’s chemical weapons; that Obama declared the use of those chemical weapons a “red line” in 2012 and then the following year, when Assad crossed that red line said, ““I didn’t set a red line. The world set a red line”; that Obama spent weeks pretending that a terrorist attack on the United States consulate in Benghazi was a spontaneous protest against a youtube video run amuck; that Obama has done nothing to avenge that attack; that Obama said that he would not allow the Iranians to obtain nuclear weapons, but has accepted Iranian breakout capability; that Obama has lost all the gains made in Iraq; that Obama nixed giving Eastern Europeans missile defense systems and refuses to arm the Ukrainians because these might be seen as “provocative” moves; and that his proposed budget turns our military into a hollow force — one does not need a degree in psychology to say that Obama is engaging in what the psychologists call “projection” when he asserts that Putin is acting out of weakness.

No, Fergus Cullen’s Experience Does Not Mean Obamacare is Working

In his March 13, 2014 Union Leader column, former New Hampshire GOP Chairman Fergus Cullen wrote about having his insurance cancelled because of Obamacare and having to purchase insurance through the Obamacare website because going uninsured was not an option for his family:

When I was a young invincible, I went years without health insurance. Now I have a spouse and young kids. We experienced a searing health emergency with my newborn daughter a couple of years ago. Not carrying insurance isn’t really an option.

Turns out that Fergus will save $1,000.00 a month on premiums next year.  The Left is claiming that this shows that Obamacare is working.  From Huffington Post:

Stories similar to Cullen’s are being told by folks across the country — that the Affordable Care Act has benefits that must be weighed against its downsides. What makes his tale a bit rarer is that he’s one of the few Republicans of stature willing to acknowledge the tradeoffs.

What the Left is missing is that the “tradeoff” in Obamacare that resulted in Fergus’ premiums going down is that the premiums paid by others goes up.  In other words, while there are some “winners” under Obamacare, that’s only possible because others are losers – they pay more, in some cases a lot more, for example a 27-year old single male who has to pay for so-called “essential coverages,” such as pediatric dental care and maternity care, that aren’t at all essential to him.  So the question really is should that “young-invincible” and others like him be forced to buy more health insurance than he needs and pay more for that health insurance than it costs to insure him in order to subsidize Fergus?

What Fergus’ experience points out is that Obamacare is nothing like what we were told it was going to be.  It doesn’t just impact the uninsured or those with preexisting conditions.  It impacts everyone, with its “essential coverages” and with its cost-shifting, which forces some Americans to subsidize other Americans.  Sure there are going to be some winners, in the short-term.  But the lesson of history is that, in the long-term, the more that governmental policies attenuate the free-market the worse off everyone is.  

To be clear, I am not saying that there should be no governmental regulation of health insurance.  What I am saying, to use an example, is that we don’t need to require “young invincibles” or 70-year olds to purchase maternity coverage and pediatric dental case, as Obamacare does, to address the issues of the uninsured and preexisting conditions.  Obamacare needs to be repealed and replaced.       

New Hampshire Supreme Court Rules That Bill Duncan and Other Plaintiffs Lack Standing to Challenge Education Tax Credit Program

Well, not directly, but if the New Hampshire Supreme Court (NHSC) applies the same reasoning in the appeal of the Education Tax Credit case as it applied in the appeal of the robo-call case, then the challenge to the Education Tax Credit case must be dismissed because the parties that brought the Education Tax Credit lawsuit lack “standing” (in plain English eligibility to sue).

In the robo-call case, the NHSC ruled that former Speaker William O’Brien lacked standing because he “failed to allege that he sustained an injury” as a result of Buckley’s illegal robo-calls.  That is incorrect, O’Brien did allege an injury -that, because Buckley left out the disclosures required by law, the Republican primary voters could have believed that O’Brien had authorized and paid for the message that O’Brien was switching parties, which is the type of injury that the robo-call law is designed to protect against.  But what’s important for the Education Tax Credit case is that the NHSC confirmed that (1) standing is a constitutional requirement because it “serves to prevent the judicial process from being used to usurp the powers of the political branches,” and (2) alleging a violation of the law is not enough to allege an injury sufficient to establish standing.

In other words, the robo-call case confirms that the Legislature cannot simply confer standing to sue, as Duncan and his fellow plaintiffs incorrectly assert in the Education Tax Credit case.  Rather, quoting from the robo-call case, it is a constitutional “requirement that a party demonstrate harm to maintain a legal challenge.”

In the robo-call case, the NHSC said there was no harm because all that O’Brien was claiming was that Buckley had violated the robo-call law (incorrect, as noted above).  The plaintiffs in the Education Tax Credit case are claiming no more than that the Education Tax Credit law violates the New Hampshire Constitution (an incorrect claim, but not one that has to be addressed here).  Thus, the Education Tax Credit case plaintiffs are in the same position that the NHSC attributed (incorrectly) to O’Brien in the robo-call case, “not alleg[ing] any injury flowing from the alleged [constitutional] violation.”

To sum up, under the reasoning applied in the robo-call case, the Education Tax Credit plaintiffs do not have standing.  Their lawsuit, therefore, must be dismissed as O’Brien’s was.

 

Jeanne Shaheen Hides Behind the Sixth Amendment, After Trashing the First Amendment

According to Jeanne Shaheen and her supporters, Debo Adegible, President Obama’s failed nominee for Assistant Attorney General for Civil Rights is a well-qualified lawyer and it shouldn’t have been held against him that he represented Mumia Abu-Jamal, a former member of the Black Panther Party, who was convicted for murdering a police officer in Philadelphia in December, 1981 because everyone has the right to a lawyer under the Sxith Amendment.

But there is much more to the opposition to Agedible than that.

For example, what about Adegible’s advocacy for racial-preferences?  He called it “race conscious holistic review” in a U.S. Supreme Court Brief filed in 2012 in a case brought by Abigail Noel Fisher, a white woman, against the University of Texas Law School, claiming its Affirmative Action admissions policy prevented her from gaining admission, in which Agedible argued it was constitutional for the Law School to have excluded Fisher under a racial-preference admissions policy.  Does Shaheen believe that it is permissible under the 14th Amendment for state colleges and graduate schools to use “race conscious holistic review” when admitting students?  Does she believe in general that racial preferences are good public policy?  Adegible’s advocacy for racial-preferences has nothing to do with the Sixth Amendment, Senator Shaheen.  So do you or do you not support racial preferences, and if you claim you do not, why did you vote for Adegible?

Also, Adegible has argued that voter-ID laws are racially discriminatory.  Do you agree, Senator Shaheen?  And if you don’t agree, then why did you vote for Adegible?

And as to Abu-Jamal, here is an excerpt from Commentary:

The White House and Adegbile’s defenders in the press say blaming the lawyer for his client’s crime is both unfair and an assault on our judicial system. But contrary to this spin, Adegbile and the NAACP were not a latter day version of patriot John Adams defending the British soldiers who perpetrated the Boston Massacre. Far from merely writing briefs on Constitutional issues involving Abu-Jamal’s conviction, Adegbile’s lawyers were part of the propaganda campaign aimed at besmirching the victim and the Philadelphia Police Department and portraying a killer who was literally caught red-handed with the murder weapon as a heroic martyr.

Do you think that Abu-Jamal is some type of a martyr, Senator Shaheen, a victim of a racist justice system?  If not, how do you justify your vote for Adegible, when he thinks otherwise?  Surely, you are not claiming that the Sixth Amendment requires us to ignore the manner in which Adegible represented Abu-Jamal?

But while Senator Shaheen supports Abu-Jamal’s Sixth Amendment rights (as do I, where I differ with Shaheen is that Adegible’s political advocacy of Abu-Jamal is not defensible as a right Abu-Jamal has under the Sixth Amendment), she doesn’t support the First Amendment rights of those who disagree with her.

Shaheen one of several Democrat U.S. Senators pushing the IRS not to grant conservative groups tax exempt status:

• Feb. 16, 2012: Seven Democratic senators— Michael Bennet (Colo.), Al Franken (Minn.), Jeff Merkley (Ore.), Mr. Schumer, Jeanne Shaheen (N.H.), Tom Udall (N.M.) and Sheldon Whitehouse (R.I.)—write to the IRS asking for an investigation of conservative 501(c)(4) organizations.

• March 12, 2012: The same seven Democrats write another letter asking for further investigation of conservative 501(c)(4)s, claiming abuse of their tax status.

 

   

New Hampshire Supreme Court Issues Jurisprudential Equivalent Of Obamacare Waiver to Ray Buckley

Today (March 7, 2014), the New Hampshire Supreme Court (“NHSC”) ruled in favor of New Hampshire Democratic Party Chairman Ray Buckley in a case involving RSA 664:14-a, New Hampshire’s robo-call law.  Buckley violated the robo-call law during the 2010 election when he sent out robo-calls regarding former Speaker William O’Brien to Republican primary voters that falsely suggested that O’Brien had asked to join the Democratic Party, but failed to disclose, as required by the law, that the calls were on behalf of and had been paid for by the Democrats. 

The issue on appeal was whether O’Brien had “standing” to sue Buckley under the robo-call law.   The test for standing is whether O’Brien suffered “a legal injury against which the law was designed to protect.”  

The robo-call law provides that “[a]ny person injured by another’s violation of this section may bring an action for damages and for such equitable relief, including an injunction, as the court deems necessary and proper.”  The NHSC reasoned that because the law refers to an “injury” resulting from a “violation” of the statute, “injury” and “violation” are two different things.  Fair statement.  But then it reasoned that the injury suffered by O’Brien was merely a violation of the statute and so he had not suffered an injury.

The problem with this reasoning is that O’Brien did not claim that his particular injury was merely that Buckley had sent out a robo-call law without the statutorily required disclosures.  Rather, the injury claimed by O’Brien was that as a result of the violation of the robo-call law by Buckley the voters in O’Brien’s district had been misled about O’Brien.  While the NHSC claimed O’Brien “conceded that he has not sustained an injury attributable to the purported violation,” that is not correct.

O’Brien, for example, described the injury in these terms in his Reply Brief:

The content of the Chairman’s robo-call –the declaration that Rep. O’Brien had asked to join the Democrat Party and the Chairman’s “progressive agenda”– makes it reasonable to infer that the Chairman was calling on behalf of Rep. O’Brien.  The recipients did not know that the robo-calls went only to Republicans, so they easily could have believed that Democrats were also receiving the calls and Democrats were the target audience.

O’Brien’s brief did argue that a violation of the robo-call law alone could constitute injury sufficient to establish standing, but lawyers typically take fallback positions and taking a fallback position is not a “concession” as the NHSC claimed.

Because O’Brien did allege an injury that flowed from Buckley’s violation of the robo-call law, the NHSC should have examined the robo-call law to determine the types of injuries it covers, and then analyze whether the injury suffered by O’Brien fell within its scope.  The statute is broadly written to accomplish the obvious legislative purpose of letting voters know who are behind robo-calls.  Requiring a candidate to prove more than the voters were given misleading information about the candidate through an unlawful robo-call, is not only not required by the robo-call law but clearly at cross-purposes with the law.

While the NHSC did not attempt to interpret the meaning of the term “injury” in the context of the robo-call law, it nonetheless asserted that any voter confusion caused by Buckley’s unlawful robo-calls were injuries only to the voters, and not to O’Brien. There is nothing in the language of the robo-call law supporting this assertion, it is at cross-purposes with the intent of the law, and it is counterintuitive. The mistaken belief of Republican primary voters that O’Brien wanted to join the Democrats is at least as much of an injury to O’Brien as the voters.    

The NHSC’s feelings about this appeal are made clear, in my opinion, when it basically pooh-poohs the robo-call law by commenting that it is the content of robo-call laws, rather than the lack of disclosure, that causes voter confusion.  It is not the NHSC’s role to apply the laws passed by the Legislature based on whether the NHSC considers the law efficacious or inefficacious.  The voter confusion that needed to be shown to establish an injury here was that the voters did not know that it was Buckley behind the false narrative that O’Brien wanted to join the Democrats because Buckley omitted the disclosures required by law.  That the NHSC thinks the voters would have been confused even with the disclosures required by the robo-call law is totally irrelevant to interpreting the robo-call law.   

Under the reasoning employed by the NHSC in this appeal, it is hard to see how the recipient of an unlawful robo-call can ever establish standing.  The recipient simply has the mirror injury from O’Brien’s; he or she has been misled as opposed to being misled about.  

But by answering the question whether O’Brien has suffered an injury without ever defining the term injury under the robo-call law, the NHSC has left itself, and the lower courts, with the flexibility to determine standing under different reasoning in prospective cases.  For that reason, the decision in favor of Buckley in this appeal is akin to an Obamacare waiver.