InDepthNH.org will update story when AG Gordon MacDonald responds to a request for comment.
By News release
On Dec. 28, 2017, the New Hampshire Attorney General’s Office sent a one-sentence email to the New Hampshire Speaker of the House Representatives opining that, as drafted, SB193 is constitutional.
This email is linked here. This opinion is incorrect. SB193 directly violates the NH Constitution and NH Supreme Court precedent restricting the use of public funds for religious schools.*
The Attorney General’s one-sentence opinion also conflicts with that Office’s own previous public statements where it raised constitutional concerns about the bill’s use of public funds for religious schools.
On April 4, 2017, the Attorney General’s Office testified before the House Education Committee that “the concern we have … is the same concern we have raised in the past this year about the fact that ‘nonpublic school’ is not delineated to mean ‘nonsectarian nonpublic school.’ So, it is important because the New Hampshire Constitution in two sections says that we are not allowed to provide money to religious schools. So our suggestion is that an easy way to avoid a facial challenge is to change it similar to the way this Committee did to House Bill 557 [the Croydon bill].”
The Attorney General’s Office made a similar statement on April 20, 2017 in a work session before the House Education Committee, stating that “there are two provisions in the New Hampshire Constitution … that say that tax dollars cannot be used in New Hampshire to support schools of sectarian organizations. Our Constitution in New Hampshire is just stricter and stronger than the federal constitution.”
Moreover, it is concerning that the Attorney General’s Office has issued a private legal opinion to the House Speaker’s Office, without disclosing it to the public or other members of the New Hampshire legislature. If the Attorney General’s Office wishes to render a legal opinion on the constitutionality of legislation, there is a public process of doing so under RSA 7:7. All such opinions must be, for the sake of transparency and accountability, made available to all legislators, as well as members of the public, so informed decisions can be made.
* See Opinion of the Justices (Choice in Education), 136 N.H. 357 (1992) (school voucher program was unconstitutional because “[n]o safeguards exist[ed] to prevent the application of public funds to sectarian uses”); Opinion of the Justices, 109 N.H. 578 (1969) ($50.00 per year property tax credit for any person having at least one child attending a nonpublic school was unconstitutional because “[i]t would make available to the parents funds which they could contribute directly to the nonpublic school, including parochial schools, without restricting the aid to secular education”).
