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Bar News - November 19, 2014

Opinion: The Underappreciated Virtues of Judicial Humility


Eugene M. Van Loan III

Despite its under-appreciation by even the most sophisticated media outlets, a decision issued by the New Hampshire Supreme Court several months ago will rank as one of its most important for years to come. In an extremely well-articulated opinion written by Chief Justice Linda Dalianis for a unanimous court, the Supreme Court in Duncan v State of NH held unconstitutional a statute which would have allowed any payer of any New Hampshire tax (which means every NH citizen because we all pay some kind of tax) to go to court to challenge any NH law, regulation or act of a public official on the grounds that it allegedly violated something in our state constitution – even if the plaintiff could not demonstrate that he or she had or would suffer any personal harm.

The Duncan plaintiffs filed a motion requesting the Court to reconsider its decision. However, on Oct. 10, the Court denied the motion and, thus, its decision is now final.

Most people will remember the Duncan case for what it did not decide – whether New Hampshire’s education tax credit program is unconstitutional because some of the scholarships awarded under the program may go to students whose school of choice has a religious affiliation. However, because all parties involved in the case agreed that the Duncan plaintiffs could not point to any personalized harm that the education tax credit program had caused them, the Court determined that they had no standing to sue and, therefore, it dismissed the case without ruling on the merits of the plaintiffs’ claims.

The self-appointed defenders of our constitutional rights, on both the left and the right, are dismayed by the Court’s opinion. For them, the no-standing-is-needed-to-sue statute that the Court struck down was a goldmine. Without ever having to show that they had been harmed, they could file lawsuits anytime, anywhere and for any reason, thereby turning the courts into what the Supreme Court called “a debating society,” rather than an institution whose role it is to resolve real disputes between real people.

Bill Duncan (who ironically is now a member of the NH Board of Education and who, thus, is charged with administering some aspects of the education tax credit program) is upset because the Court wouldn’t hear what it called his “hypothetical” claim. As the Court put it, “When the concrete, personal injury requirement is eliminated, courts assume a position of authority over the governmental acts of another and co-equal department.” As the Court explained, its role as a judicial institution requires it to reject the invitation to “serve as a ‘super law firm,’ no matter how high the stakes or how important the question.” The fact that the invitation was issued by the Legislature itself makes no difference. To quote the Court: “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.”

I do not mean to denigrate the so-called public interest law firms, whether on the left or the right. They do good work when they represent real people who have real issues and who, often, cannot afford a lawyer to represent them. But when they gin up a plaintiff in order to create a lawsuit that is designed not to protect the rights of real people, but to use the courts to advance their own philosophical agenda, they are abusing our political institutions.

And, by the way, to paraphrase a popular aphorism, one bad deed begets another. Because of the success of the often well-funded public interest plaintiff law firms, which purport to assert the rights of their supposed clients, we now have public interest defense law firms, which offer to come in on the side of those who deny the existence of such rights, or who deny that those rights are being violated.

The consequence of all of this is artificial lawsuits. Suffice it to say that the public interest law firms don’t charge their nominal clients, the plaintiffs and the defendants, who thus have no personal skin in the game. And, of course, the interests of the law firms’ real clients, the mythical “public,” is something that is defined by the lawyers themselves.

The Duncan case itself is a perfect example of this phenomenon. The plaintiffs were represented by the New Hampshire Civil Liberties Union and Americans United for Separation of Church and State, and the intervenor defendants were represented by the Institute for Justice, all public interest law firms. (In the interests of full disclosure, I acted as local counsel for the Institute for Justice in the trial court.) And, of course, both sides claimed to be acting for the “public.”

So, it may be unfortunate that our Supreme Court did not settle the question as to whether the education tax credit program is constitutional. (For what it is worth, I believe it is.) However, what the Court did decide is a whole lot more important: the no-standing statute is unconstitutional.

But besides being right, the justices also exhibited a trait which is in short supply these days: judicial humility. Despite having been offered the opportunity by the Legislature to assume “general superintendence over the whole of the State’s government,” the Court exercised self-restraint and turned the offer down. Bravo!

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