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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford

No. 2013-455

BILL DUNCAN & a.

v.

THE STATE OF NEW HAMPSHIRE & a.

Argued: April 16, 2014

Opinion Issued: August 28, 2014

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 & 
2

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, 
3

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. 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 personal rights have been impaired or prejudiced, is unconstitutional; 

and (2) absent that amendment, the petitioners have no standing to bring their 

constitutional claim. Accordingly, we vacate and remand with instructions to 

dismiss the petition.
4

I. Background

The trial court found, or the record establishes, the following facts. The 

legislature enacted the program in June 2012, overriding a gubernatorial veto. 

The program creates a tax credit for business organizations and enterprises 

that contribute to scholarship organizations that have been approved by the 

New Hampshire Department of Revenue Administration (DRA) to award 

scholarships to eligible students under the program. See RSA 77-G:1, VIII, 

XVII, :2-:5. For each contribution made to a qualifying scholarship 

organization, “a business organization or business enterprise may claim a 

credit equal to 85 percent of the contribution against the business profits tax 

due . . . or against the business enterprise tax due . . . or apportioned against 

both [taxes].” RSA 77-G:3. The program caps “[t]he aggregate of tax credits” 

granted to all taxpayers at $3.4 million for the first program year, which began 

on January 1, 2013, see Laws 2012, 287:5, and at $5.1 million for the second 

program year. RSA 77-G:4, I. An eligible student may receive a scholarship 

through the program “to attend (1) a nonpublic school . . . or (2) a public school 

located outside of the [student’s] school district,” or to defray homeschooling 

expenses. RSA 77-G:2, I(a). In the program’s first year, “[t]he average value of 

all scholarships awarded by a scholarship organization,” excluding 

scholarships to homeschooling students, “shall not exceed $2,500.” RSA 77-

G:2, I(b). In the first year of the program, homeschooled students are eligible to 

receive scholarships equal to twenty-five percent of $2,500, or $625. RSA 77-

G:1, VI. The program requires DRA to adjust those amounts annually. RSA 

77-G:2, I(b). The program requires the State Department of Education to issue 

“scholarship stabilization grant[s]” to school districts when “the combined 

amount of reductions in adequacy cost pursuant to RSA 77-G:7 from students 

receiving scholarships . . . and who were in attendance in that district in the 

year prior to receiving the scholarships” is “greater than 1⁄4 of one percent of a 

school district’s total voted appropriations for the year prior to the scholarship 

year.” RSA 77-G:8, I. 

The trial court concluded that the program violates Part II, Article 83 of 

the State Constitution, which provides, in pertinent part, that “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 court determined that 

the tax credits constitute “money raised by taxation” because they comprise 

“[m]oney that would otherwise be flowing to the government.” The court ruled

that the tax credits violate the prohibition against applying “money raised by 

taxation” for use by religious schools because they “inevitably go toward 

educational expenses at nonpublic ‘religious’ schools.” After deeming the 

provisions in RSA chapter 77-G that violate Part II, Article 83 of the State 

Constitution to be severable from the remaining provisions, the court ordered 

that “the program may proceed, except that scholarship monies may not go to 

‘schools or institutions of any religious sect or denomination’ within the 

meaning of . . . Part II, Article 83, and the associated tax credits are likewise 
5

disallowed.” This appeal by the State and the intervenors and cross-appeal by 

the petitioners followed. 

II. Analysis

A. Constitutionality of 2012 Amendment to RSA 491:22, I

We begin by addressing the intervenors’ assertion that the 2012 

amendment to RSA 491:22, I, pursuant to which the trial court ruled that the 

petitioners had standing, is unconstitutional. We review the constitutionality 

of a statute de novo. Eby v. State of N.H., 166 N.H. ___, ___ (decided June 13, 

2014). “In reviewing a constitutional challenge to a legislative act, we presume 

the act to be constitutional and will not declare it invalid except on inescapable 

grounds; that is, unless a clear and substantial conflict exists between the act 

and the constitution.” Id. (quotation omitted). We will not construe a statute 

“to be unconstitutional when it is susceptible to a construction rendering it 

constitutional.” Huckins v. McSweeney, 166 N.H. ___, ___, 90 A.3d 1236, 1239

(2014) (quotation omitted). “When doubts exist as to the constitutionality of a 

statute, those doubts must be resolved in favor of its constitutionality.” Id. at 

___, 90 A.3d at 1239 (quotation omitted). 

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

Any person claiming a present legal or equitable right or title 

may maintain a petition against any person claiming adversely to 

such right or title to determine the question as between the 

parties, and the court’s judgment or decree thereon shall be 

conclusive. The existence of an adequate remedy at law or in 

equity shall not preclude any person from obtaining such 

declaratory relief. However, the provisions of this paragraph shall 

not affect the burden of proof under RSA 491:22-a or permit 

awards of costs and attorney’s fees under RSA 491:22-b in 

declaratory judgment actions that are not for the purpose of 

determining insurance coverage.

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

Any person claiming a present legal or equitable right or title 

may maintain a petition against any person claiming adversely to 

such right or title to determine the question as between the 

parties, and the court’s judgment or decree thereon shall be 

conclusive. The taxpayers of a taxing district in this state shall be 

deemed to have an equitable right and interest in the preservation 

of an orderly and lawful government within such district; therefore 

any taxpayer in the jurisdiction of the taxing district shall have 

standing to petition for relief under this section when it is alleged 
6

that the taxing district or any agency or authority thereof has 

engaged, or proposes to engage, in conduct that is unlawful or 

unauthorized, and in such a case the taxpayer shall not have to 

demonstrate that his or her personal rights were impaired or 

prejudiced. The preceding sentence shall not be deemed to convey 

standing to any person (a) to challenge a decision of any state 

court if the person was not a party to the action in which the 

decision was rendered, or (b) to challenge the decision of any 

board, commission, agency, or other authority of the state or any 

municipality, school district, village district, or county if there 

exists a right to appeal the decision under RSA 541 or any other 

statute and the person seeking to challenge the decision is not 

entitled to appeal under the applicable statute. The existence of an 

adequate remedy at law or in equity shall not preclude any person 

from obtaining such declaratory relief. However, the provisions of 

this paragraph shall not affect the burden of proof under RSA 

491:22-a or permit awards of costs and attorney’s fees under RSA 

491:22-b in declaratory judgment actions that are not for the 

purpose of determining insurance coverage.

Laws, 2012, 262:1 (emphasis added). 

The legislature passed the amendment in direct response to our holding 

in Baer v. New Hampshire Department of Education, 160 N.H. 727 (2010). See

N.H.H.R. Jour. 887-88 (2012). In Baer, we recognized that “[o]ur case law 

contain[ed] two conflicting lines of cases regarding taxpayer standing to bring a 

declaratory judgment action.” Baer, 160 N.H. at 730. Under one line of cases, 

we had “permitted taxpayers to maintain an equity action seeking redress for 

the unlawful acts of their public officials, even when the relief sought was not 

dependent upon showing that the illegal acts of the public officials resulted in a 

financial loss to the town.” Id. In those cases, we reasoned that “every 

taxpayer has a vital interest in and a right to the preservation of an orderly and 

lawful government regardless of whether his purse is immediately touched.” 

Id. (quotation omitted). Under the second, more recent line of cases, we had 

“required taxpayers to demonstrate that their rights are impaired or prejudiced 

in order to maintain a declaratory judgment action.” Id. We ultimately 

reasoned that the second, more recent, line of cases was more consistent with 

the language of RSA 491:22 (2010) (amended 2012), and held that to maintain 

an action under the statute, a party questioning the validity of a law must 

show that “some right of his is impaired or prejudiced” thereby. Id. (quotation 

omitted). Specifically, we held “that taxpayer status, without an injury or an 

impairment of rights, is not sufficient to confer standing to bring a declaratory 

judgment action under RSA 491:22.” Id. at 731. 

The intent of the 2012 amendment was to restore taxpayer standing as it 

had been interpreted in the older line of cases identified in Baer. As one of the 
7

three sponsors of the legislation stated when introducing it:

This bill restores the long established right of local taxpayers to file 

for declaratory judgment, which asks a court what the law is when 

a governmental action is challenged. It is not a suit for money 

damages. For a century and a half, until a court ruling in 2010, 

all taxpayers had standing in the state court to seek such relief. 

As far back as 1863, the New Hampshire Supreme Court found 

that taxpayers had a legitimate interest in the disposition of their 

tax dollars and allowed such suits. In Clapp v. Town of Jaffrey, 97 

N.H. 456 (1952) the court held, “it is plain that every taxpayer of a 

town has a vital interest in and a right to the preservation of an 

orderly and lawful government regardless of whether his purse is 

immediately touched.” This was echoed in 1974 when the 

Supreme Court also held that “it is well settled in this state that 

plaintiffs, as taxpayers, have standing to seek redress for the 

unlawful acts of their public officials.” However, two years ago in 

the case of Baer v. N.H. Department of Education, 160 N.H. 727 

(2010) all of these taxpayer standing cases were set aside by the 

Supreme Court. The court’s new interpretation of RSA 491:22 now 

requires taxpayers to demonstrate an injury or an impairment of 

rights in order to bring a declaratory judgment action. This bill, as 

amended by a bipartisan majority, clarifies the law to again permit 

taxpayer suits to challenge governmental action - returning to 

taxpayers the same right that they possessed from 1863 until 

2010.

N.H.H.R. Jour. 887-88 (2012); see N.H.H.R. Jour. 17 (2012) (listing sponsors of 

legislation).

The intervenors argue that, by “dispens[ing] with the requirement of any 

showing of personal injury,” the 2012 amendment to RSA 491:22, I, violates: 

(1) Part II, Article 74 of the State Constitution because the amendment allows 

this court to render advisory opinions to private individuals; (2) Part I, Article 

37 of the State Constitution because the amendment expands the role of the 

judiciary in such a way as to violate the separation of powers doctrine; and (3) 

Part II, Article 41 of the State Constitution because that expansion

“contravenes the explicit provision granting to the Governor the authority to 

restrain a violation of any constitutional power by a public official or agency.” 

Accordingly, they argue, the petitioners cannot rely upon the 2012 amendment 

to RSA 491:22, I, to establish standing.

Because we conclude that the 2012 amendment to RSA 491:22, I, 

violates Part II, Article 74, we need not decide whether it also contravenes Part 

I, Article 37, or Part II, Article 41. Although the petitioners urge us not to 

address the merits of the intervenors’ arguments because, they contend, the 
8

intervenors have not sufficiently briefed them, having reviewed the intervenors’ 

opening and reply briefs, we conclude that their standing arguments are 

sufficiently briefed for our review. Moreover, even if the intervenors had not 

sufficiently briefed their standing arguments, because standing is a question of 

subject matter jurisdiction, we may raise the issue of a party’s standing sua

sponte. Eby, 166 N.H. at ___.

We note that the “earlier line of cases” referenced in Baer, 160 N.H. at 

730, did not address the precise issue with which we are faced in this case. In 

none of those cases did we address the constitutionality of allowing a taxpayer 

to sue without having to show that any personal right of his is impaired or 

prejudiced. Cf. Hagans v. Lavine, 415 U.S. 528, 535 n.5 (1974) (“[W]hen 

questions of jurisdiction have been passed on in prior decisions sub silentio, 

this Court has never considered itself bound when a subsequent case finally 

brings the jurisdictional issue before us.”). 

“When our inquiry requires us to interpret a provision of the 

constitution, we must look to its purpose and intent.” Bd. of Trustees, N.H. 

Judicial Ret. Plan v. Sec’y of State, 161 N.H. 49, 53 (2010). “The first resort is 

the natural significance of the words used by the framers.” Id. “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.” Id. (quotation omitted). 

Part II, Article 74 provides: “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.” It “empowers the justices of the supreme court to render advisory 

opinions, outside the context of concrete, fully-developed factual situations and 

without the benefit of adversary legal presentations, only in carefully 

circumscribed situations.” Opinion of the Justices (Appointment of Chief 

Justice), 150 N.H. 355, 356 (2003); see In re School-Law Manual, 63 N.H. 574, 

576-77 (1885). Pursuant to Part II, Article 74, the justices of the supreme 

court may render advisory opinions only “upon important questions of law and 

upon solemn occasions,” and only to “[e]ach branch of the legislature as well as 

the governor and council.” N.H. CONST. pt. II, art. 74; see In re School-Law 

Manual, 63 N.H. at 576-77; Piper v. Meredith, 109 N.H. 328, 330 (1969) (“The 

bodies authorized to . . . obtain [advisory] opinions are limited by [Part II,] 

Article 74[ ] to the branches of the Legislature and the Governor and Council.”). 

Thus, Part II, Article 74 does not authorize this court to render advisory 

opinions to private individuals. See Piper, 109 N.H. at 330; Clark v. Clark, 116 

N.H. 255, 256 (1976); State v. Harvey, 106 N.H. 446, 448 (1965); cf. Watson v. 

Fox, 44 A.3d 130, 137 (R.I. 2012) (construing similar provision of Rhode Island 

Constitution, court states that it has no authority to issue an advisory opinion 

to a private litigant). Nor does it empower the court “to issue advisory opinions 

to either branch of the legislature regarding existing legislation.” Opinion of 
9

the Justices (Appointment of Chief Justice), 150 N.H. at 356. “That authority 

extends only to proposed legislation.” Id. Moreover, under Part II, Article 74,

the authority to issue advisory opinions applies solely to the justices of this 

court, not to the superior court. See Piper, 109 N.H. at 330. 

Except as provided in Part II, Article 74, the judicial power in this State 

is limited to deciding actual, and not hypothetical, cases. See State v. Kelly, 

159 N.H. 390, 394 (2009). Generally, “[o]ur constitutional republic confines 

the judiciary to deciding cases and not serving as a ‘super law firm,’ no matter 

how high the stakes or how important the question.” Petition of Public Serv.

Co. of N.H., 125 N.H. 595, 598 (1984); see Merrill v. Sherburne, 1 N.H. 199, 

204, 217 (1818) (determining that it is within judicial power “to decide private 

disputes ‘between or concerning persons,’” and concluding that the “legislature 

cannot pass . . . a[ ] [judicial] act”).

For instance, in Harvey, we declined the defendant’s invitation to opine 

upon the constitutionality of a city ordinance when, after he was convicted but 

before his appeal, the State nol prossed the complaint alleging that he had 

violated the ordinance. Harvey, 106 N.H. at 447 (preface to opinion), 448. We 

determined that the opinion the defendant sought was advisory because “the 

State now ma[de] no claim of any rights adverse to those asserted by the 

defendant,” and there were no “matters . . . in contention.” Id. at 448 

(quotation omitted). We concluded that issuing such an advisory opinion to a 

private individual contravened Part II, Article 74. Id. 

In re School-Law Manual is similarly instructive. In that case, the 

legislature had enacted a statute that appointed a commission to revise, codify, 

and amend laws related to schools. In re School-Law Manual, 63 N.H. at 575. 

The statute also authorized the Governor to appoint a commissioner to compile 

statutes related to schools and “frame rules and forms of proceedings in towns 

under said statutes.” Id. (quotation omitted). The “rules and forms of 

proceeding” then were to be forwarded to this court for approval and, once 

approved, would be “deemed valid and sufficient.” Id. (quotations omitted). We 

declined to approve the rules and forms, in part, because doing so would be 

advisory and an improper exercise of judicial power. See id. at 576-77. We 

explained that we could not rule upon the validity of the rules and forms “until 

those questions arise in cases not mooted by the court, but brought by parties 

into court for trial and judgment.” Id. at 575.

In Faulkner v. Keene, 85 N.H. 147, 151 (1931), we opined that a prior 

version of RSA 491:22 was consistent with Part II, Article 74 because it did not

allow the court to issue advisory opinions, but instead empowered the court to 

“authoritative[ly] determin[e] [the] rights” of “contending parties.” The plaintiffs 

in that case had a contract to sell land in Keene to Standard Oil Company for a 

gas station. Faulkner, 85 N.H. at 148 (preface to opinion). One condition of 

the sale was that the plaintiffs obtain approval from the city to store gas, 
10

kerosene, and oil on the property. Id. The petition was for a declaration that 

the plaintiffs (and Standard Oil) had the right to use the property for that 

purpose. Id. The trial court ruled in the plaintiffs’ favor, and the city appealed. 

Id. 

The city argued that the newly enacted Declaratory Judgment Act was 

unconstitutional. Id. at 149; see Laws 1929, ch. 86. The 1929 version of the 

act provided: “Any person claiming a present legal or equitable right or title 

may maintain a petition against any person claiming adversely to such right or 

title, to determine the question as between the parties, and the court’s 

judgment or decree thereon shall be conclusive.” Faulkner, 85 N.H. at 149 

(quotation omitted). The purpose of the act was “to make disputes as to rights 

or titles justiciable without proof of a wrong committed by one party against the 

other.” Id. The claim in Faulkner was that the 1929 act was unconstitutional 

because it allowed the court to render advisory opinions to private individuals. 

Id. at 150. We ruled that the act was constitutional because it merely allowed 

courts to resolve disputes between parties at an earlier stage of the proceeding. 

See id. at 151-52. We explained that the State Constitution “does not prohibit 

the fixation of rights, as between parties who are in court.” Id. at 151. We 

further reasoned that because the statute “provides that a decree shall settle 

an issue as between the parties, it cannot well be asserted that rights are not 

adjudicated upon and conclusively settled by a decree thereunder. The result 

of such a proceeding is not merely advice, but an authoritative determination of 

rights.” Id. 

As these cases illustrate, although the standing requirements under 

Article III of the Federal Constitution are not binding upon state courts, see

ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989), and although the State 

Constitution does not contain a provision similar to Article III, see Wyman v. 

DeGregory, 101 N.H. 171, 176 (1957), as a practical matter, Part II, Article 74 

imposes standing requirements that are similar to those imposed by Article III 

of the Federal Constitution. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560-61 (1992) (setting forth the elements of Article III standing). Except as 

provided in Part II, Article 74 and similar to the “case or controversy” 

requirement of Article III, standing under the New Hampshire Constitution 

requires parties to have personal legal or equitable rights that are adverse to 

one another, see Harvey, 106 N.H. at 448, with regard to an actual, not 

hypothetical, dispute, see Kelly, 159 N.H. at 394, which is capable of judicial 

redress, see Faulkner, 85 N.H. at 151; State v. McPhail, 116 N.H. 440, 442

(1976). See Lujan, 504 U.S. at 560-61. 

In this way, Part II, Article 74 of the State Constitution, in practical 

effect, limits the judicial role to one that is “consistent with a system of 

separated powers and which are traditionally thought to be capable of 

resolution through the judicial process.” Valley Forge College v. Americans 

United, 454 U.S. 464, 472 (1982) (quotation omitted) (discussing Article III of 
11

the Federal Constitution). The requirement that parties have personal legal or 

equitable rights that are capable of being redressed by the court “tends to 

assure that the legal questions presented to the court will be resolved, not in 

the rarified atmosphere of a debating society, but in a concrete factual context 

conducive to a realistic appreciation of the consequences of judicial action.” 

Id.; see Opinion of the Justices (Appointment of Chief Justice), 150 N.H. at 

356. 

The legislature did not comply with Part II, Article 74 by providing that 

“taxpayers . . . shall be deemed to have an equitable right and interest in the 

preservation of an orderly and lawful government within [the] district,” RSA 

491:22, I. The standing required by our constitution is not satisfied by the 

abstract interest in ensuring that the State Constitution is observed. See

Valley Forge, 454 U.S. at 482 (discussing Article III standing). Indeed, the 

requirement of a concrete, personal injury “has . . . separation-of-powers 

significance.” Lujan, 504 U.S. at 577; see O’Brien v. N.H. Democratic Party, 

166 N.H. ___, ___, 89 A.3d 1202, 1206 (2014) (acknowledging that “[t]he 

doctrine of standing serves to prevent the judicial process from being used to 

usurp the powers of the political branches” (quotation omitted)). When the 

concrete, personal injury requirement is eliminated, courts “assume a position 

of authority over the governmental acts of another and co-equal department.” 

Lujan, 504 U.S. at 577 (quotation omitted). The text of the State Constitution 

nowhere suggests that the framers intended the judiciary to exercise a role of 

general superintendence over the whole of the State’s government — to 

function, in effect, as a body akin to the council of revision proposed at the 

Federal Convention of 1787. See J. Madison, The Debates in the Federal 

Convention of 1787 Which Framed the Constitution of the United States of 

America 25 (Gaillard Hunt & James Brown Scott, eds., int’l ed. 1920)

(proposing a “Council of revision,” comprised of “the Executive and a 

convenient number of the National Judiciary,” to “examine every act of the 

National Legislature”). “Vindicating the public interest (including the public 

interest in Government observance of the Constitution and laws)” is the 

function of the legislative and executive branches. Lujan, 504 U.S. at 576; see

Merrill, 1 N.H. at 204 (“legislative power” is intended to “regulate publick 

concerns and to ‘make laws’ for the benefit and welfare of the state”). “It is the 

province of judges to determine what is the law upon existing cases” and “to 

decide private disputes between or concerning persons.” Merrill, 1 N.H. at 204

(quotation omitted); see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) 

(“The province of the court is, solely, to decide on the rights of individuals.”). 

The requirement of a concrete personal injury also implicates Part II, 

Article 41 of the Constitution, pursuant to which the Governor is “responsible 

for the faithful execution of the laws.” To allow the legislature “to convert the 

undifferentiated public interest” in the “proper administration of the laws” to 

“an individual right by a statute that denominates it as such,” is to allow the 

legislature to transfer from the Governor to the courts the executive’s “most 
12

important constitutional duty,” Lujan, 504 U.S. at 576, 577, which is to ensure 

“the faithful execution of the laws,” N.H. CONST. pt. II, art. 41. Accordingly, 

pursuant to our State Constitution, “there can be no constitutional cause of 

action without [a personal] injury, and [the legislature] does not have unlimited 

power to define injuries.” J. Doggett, “Trickle Down” Constitutional 

Interpretation: Should Federal Limits on Legislative Conferral of Standing Be 

Imported Into State Constitutional Law?, 108 Colum. L. Rev. 839, 847 (2008) 

(discussing Lujan). 

The plain language of the amended statute allows parties to bring claims 

without having to demonstrate that their “personal rights were impaired or 

prejudiced.” RSA 491:22, I. In this way, the statute allows this court to render 

to private individuals “advisory opinions, outside the context of concrete, fullydeveloped factual situations.” Opinion of the Justices (Appointment of Chief 

Justice), 150 N.H. at 356; see Birch Broad. v. Capitol Broad. Corp., 161 N.H. 

192, 199 (2010) (“The 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.” (citation 

omitted)); cf. Watson, 44 A.3d at 137 (construing provision in Rhode Island 

Constitution similar to Part II, Article 74, court is “resolute that [it] lacks the 

constitutional authority” to decide whether legislature had unconstitutionally 

expended public money because plaintiff was “unable to evince any 

particularized injury that would remove this case from the realm of pure 

abstraction,” and concluding that the relief the plaintiff sought “is really an 

advisory opinion cloaked in the garb of a request for declaratory relief”). In 

doing so, the 2012 amendment to RSA 491:22, I, violates Part II, Article 74. 

Although we observe that the United States Supreme Court in Flast v. Cohen, 

392 U.S. 83, 102-03 (1968), created a “narrow exception to the general 

constitutional prohibition against taxpayer standing,” Hein v. Freedom from 

Religion Foundation, Inc., 551 U.S. 587, 602 (2007) (plurality opinion), we have 

no occasion to consider whether to recognize a similar exception under the 

State Constitution or to determine either the parameters of such an exception 

or its applicability to this case; no party raised the issue in the trial court, and 

we conclude it would be improper to address it based upon the record before 

us.

The petitioners mistakenly argue that the legislature has the authority to 

contravene Part II, Article 74 because Part II, Article 4 of the State Constitution 

grants it the power to “erect and constitute judicatories and courts of record, or 

other courts.” “The constitutional authority of the court to give advice,” as set 

forth in Part II, Article 74, “cannot be extended by legislative action.” Harvey v. 

Harvey, 73 N.H. 106, 107 (1904). 

In sum, we hold that RSA 491:22, I, as amended in 2012, contravenes

Part II, Article 74 because it confers standing upon taxpayers without requiring 
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them to demonstrate that any of their “personal rights were impaired or 

prejudiced.” RSA 491:22, I.

B. Petitioners’ Standing Under Prior Law

Having concluded that the 2012 amendment to RSA 491:22, I, is 

unconstitutional, we next address whether the petitioners otherwise have 

established standing to challenge the constitutionality of RSA chapter 77-G. 

To establish standing to bring a declaratory judgment proceeding under RSA 

491:22, I, before the 2012 amendment thereto, a party must show that some 

right of the party has been impaired or prejudiced by the application of a rule 

or statute. Avery v. N.H. Dep’t of Educ., 162 N.H. 604, 608 (2011). To meet 

this requirement, a party seeking declaratory relief must “show that the facts 

are sufficiently complete, mature, proximate and ripe to place [the party] in 

gear with [the party’s] adversary, and thus to warrant the grant of judicial 

relief.” Delude v. Town of Amherst, 137 N.H. 361, 364 (1993) (quotation 

omitted). The claims raised must be “definite and concrete touching the legal 

relations of parties having adverse interests,” and must not be based upon a 

“hypothetical set of facts.” Avery, 162 N.H. at 608 (quotations omitted).

The petitioners argue that they have standing “because the Program will 

harm all the [petitioners] as taxpayers by imposing net fiscal losses on New 

Hampshire governments and will further harm certain [petitioners] who have 

children in or teach in the public schools by taking state funding away from 

the public schools.” In assessing whether the petitioners have established 

standing, we find DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), and 

Watson, 44 A.3d 130, instructive. Cuno involved a challenge by Ohio 

taxpayers to tax benefits awarded by the city of Toledo to DaimlerChrysler 

Corporation (DaimlerChrysler) in exchange for DaimlerChrysler’s agreement to 

expand its jeep assembly plant already located in the city. Cuno, 547 U.S. at 

338-39. The plaintiffs claimed that they were injured by the tax benefits 

afforded to DaimlerChrysler because the benefits “deplet[ed]” state funds, 

“diminish[ed] the total funds available for lawful uses and impos[ed] 

disproportionate burdens” on the plaintiffs. Id. at 343 (quotations omitted). 

The United States Supreme Court determined that the plaintiffs lacked

standing because their claimed injury was not “concrete and particularized,”

but was instead “a grievance the taxpayer[s] suffer[ed] in some indefinite way in

common with people generally,” and because the injury was “conjectural and 

hypothetical.” Id. at 344 (quotations omitted). The Court explained that the

alleged injury was “conjectural and hypothetical,” in part, because “it is 

unclear that tax breaks of the sort at issue here do in fact deplete the treasury: 

The very point of the tax benefits is to spur economic activity, which in turn 

increases government revenues.” Id. Further, the Court observed, whether the 

plaintiffs would suffer an injury “depends on how legislators respond to a 

reduction in revenue, if that is the consequence of the [benefits].” Id. To 

establish their injury, “requires speculating that elected officials will increase a 
14

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.” Id. The Court held that 

“[n]either sort of speculation suffices to support standing.” Id.

The plaintiff in Watson was a state legislator who sued in his capacity as 

an individual taxpayer. Watson, 44 A.3d at 136. He sought a declaratory 

judgment that the process the legislature used to allocate $2.3 million for 

legislative grants violated various state constitutional provisions. Id. at 132. 

The Rhode Island Supreme Court concluded that he lacked standing because 

he “complained of no concrete, particularized harm; to the degree he can point 

to any injury, it is the same, indistinguishable, generalized wrong allegedly 

suffered by the public at large.” Id. at 137.

The personal injuries alleged by the petitioners in this case, like those 

alleged in Cuno and Watson, are insufficient to establish standing. The 

petitioners’ claim that the program will result in “net fiscal losses” to local 

governments does not articulate a personal injury. It “is the same, 

indistinguishable, generalized wrong allegedly suffered by the public at large.” 

Id. Although some of the petitioners have school-aged children or are public 

school teachers, at best, this establishes that those petitioners have a special 

interest in education. Such a special interest, alone, does not constitute a 

“definite and concrete” injury sufficient to confer standing. Avery, 162 N.H. at 

608 (quotation omitted); see Kadish, 490 U.S. at 616. Moreover, the purported

injury asserted here — the loss of money to local school districts — is 

necessarily speculative. See Cuno, 547 U.S. at 344. Even if the tax credits 

result in a decrease in the number of students attending local public schools, it 

is unclear whether, as the petitioners allege, local governments will experience 

“net fiscal losses.” The prospect that this will occur requires speculation about 

whether a decrease in students will reduce public school costs and about how 

the legislature will respond to the decrease in students attending public 

schools, assuming that occurs. See Kadish, 490 U.S. at 614-15. 

Elsewhere in their brief, the petitioners argue that they have standing 

“because this is a fully litigated case challenging a Program that has been 

implemented.” However, to establish that they have standing, the petitioners 

must show more than that the case has been litigated fully and that the 

program has been implemented. They must show that some right of theirs has 

been prejudiced or impaired as a result of the program’s implementation. See

Avery, 162 N.H. at 608.

To the extent that the petitioners argue that LRS has standing because it 

“has paid and continues to pay business enterprise taxes or business profits 

taxes,” this, too, is insufficient to show that LRS has suffered a personal injury 

as a result of the program. There is no evidence that by granting tax credits to 
15

other businesses, the program alters the amount of taxes LRS is or will be 

required to pay. 

Because the petitioners fail to identify any personal injury suffered by 

them as a consequence of the alleged constitutional error, they have failed to 

establish that they have standing to bring their constitutional claim. “It is 

evident that the [petitioners] are firmly committed to the constitutional 

principle of separation of church and State, but standing is not measured by 

the intensity of the litigant’s interest or the fervor of his advocacy.” Valley 

Forge, 454 U.S. at 486. “That concrete adverseness which sharpens the 

presentation of issues is the anticipated consequence of proceedings 

commenced by one who has been injured in fact; it is not a permissible 

substitute for the showing of injury itself.” Id. (quotation, citation, and 

brackets omitted).

Although at oral argument, the intervenors contended that only the 

Governor has standing to challenge RSA chapter 77-G, they also acknowledged 

that other individuals would have standing if such individuals demonstrated 

the requisite personal harm. To the extent that the petitioners argue that if 

they lack standing then no one has standing, we disagree with them that this 

is a reason to find standing. See id. at 489; Tax Equity Alliance v. Com’r of 

Revenue, 672 N.E.2d 504, 509 (Mass. 1996) (“[A]n unfounded assumption that, 

if the individual plaintiffs lack standing, no one will have standing to sue, is 

not a reason to find standing where none exists.”). “This view would convert 

standing into a requirement that must be observed only when satisfied.” Valley 

Forge, 454 U.S. at 489. “Moreover, we are unwilling to assume that injured 

parties are nonexistent simply because they have not joined [the petitioners] in 

their suit.” Id. “‘In light of th[e] overriding and time-honored concern about 

keeping the Judiciary’s power within its proper constitutional sphere, we must 

put aside the natural urge to proceed directly to the merits of an important 

dispute and to “settle” it for the sake of convenience and efficiency.’” O’Brien, 

166 N.H. at ___, 89 A.3d at 1206 (quoting Hollingsworth v. Perry, 133 S. Ct. 

2652, 2661 (2013)).

Our decision in this case does not mean that a taxpayer can never have 

standing to challenge governmental actions. When a taxpayer has a 

sufficiently personal and concrete interest to confer standing, the taxpayer may 

seek judicial relief. We hold only that the generalized interest in an efficient 

and lawful government, upon which the petitioners rely, and the amendment to 

RSA 491:22 which purports to confer standing, are not sufficient to meet the 

constitutional requirements necessary for standing to exist.

Vacated and remanded.

HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.