One State's Voters Fight for Their Right to Sue the Government

States across the country have limited citizens' right to sue their state or local government. Voters in one of them, New Hampshire, revived it on Tuesday.
by | November 7, 2018
New Hampshire Supreme Court building
(Shutterstock)

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For a century and a half in New Hampshire, citizens could sue their state if they believed its actions were illegal or unconstitutional -- regardless of whether it violated their personal rights. Then, in 2014, the state Supreme Court ended that right.

But on Tuesday, Granite Staters revived it with their approval of Question 1 on the state's ballot. This gives taxpayers back their power to sue state or local government -- even if their personal rights were not violated by the alleged injustice. The measure had 83 percent of the vote, with 83 percent of precincts reporting.

"We want to restore a right that citizens have had for over a century and frequently exercised," Democratic state Rep. Bob Backus, who sits on the board of the Yes on NH 1 committee, said before the vote.

Unlike most pieces of legislation, the measure was supported by the state's Democratic and Republican parties, and the language for the proposed constitutional amendment was approved with overwhelming majorities in the state legislature. It passed the state House 309-9 and the state Senate 22-2. There was no organized opposition to it.

Still, Democratic state Rep. Timothy Smith, who described himself as "very torn" on Question 1, said the amendment will create "potential for the judicial branch -- at least in the short and medium term -- to get clogged up with frivolous lawsuits."

"It’s not hard to imagine people using this newfound constitutional standing to sue the state government and say every individual penny of the property tax is unconstitutional for whatever reason," Smith said. "Even if they’re found to be frivolous and dismissed, they still have to go through due process."

It's a debate states around the country are having.

Just this summer, the Arkansas Supreme Court reaffirmed its commitment to the principle of "sovereign immunity," ruling for a second time that state agencies can't be sued by residents. There are similar sovereign immunity clauses -- with exceptions -- in the constitutions of states like Alabama and West Virginia. The Georgia Supreme Court ruled last year that "sovereign immunity forbids our courts to entertain a lawsuit against the State without its consent."

The ruling that prompted New Hampshire's Question 1 came when Bill Duncan, a Democrat and former state Board of Education member, argued that education tax credits violated the state's constitution by giving taxpayer money to religious schools. The court ruled that Duncan lacked standing because he failed to "identify any personal injury" from the tax credits. The constitutional amendment states that a taxpayer "shall not have to demonstrate that his or her personal rights were impaired or prejudiced beyond his or her status as a taxpayer."

University of New Hampshire law professor Albert Scherr isn’t surprised the measure passed since its goal is in keeping with the state's libertarian tradition.

"It's another way of having a check on the government," he said. "That's really what it comes down to."

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Graham Vyse | Staff Writer