HR8 (2007) Detail

Requesting an opinion from the New Hampshire supreme court on certain questions regarding education funding.


HR 8 – AS INTRODUCED

2007 SESSION

07-0727

04/09

HOUSE RESOLUTION 8

A RESOLUTION requesting an opinion from the New Hampshire supreme court on certain questions regarding education funding.

SPONSORS: Rep. Sorg, Graf 3; Rep. Itse, Rock 9; Rep. Garcia, Rock 4; Rep. Ingbretson, Graf 5; Rep. Bettencourt, Rock 4

COMMITTEE: Judiciary

ANALYSIS

This house resolution requests an opinion of the justices on questions relating to education funding.

07-0727

04/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Seven

A RESOLUTION requesting an opinion from the New Hampshire supreme court on certain questions regarding education funding.

Whereas, in Claremont School District v. Governor, 138 N.H. 183, 635 A.2d 1375 (1993) (Claremont I), the supreme court stated that the words “it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools” found in Article 83 of Part II of the New Hampshire constitution, are not merely a statement of aspiration, but “command, in no uncertain terms, that the state provide an education to all its citizens and that it support all public schools,” Id. at page 187; and

Whereas, in Claremont I, the supreme court stated further that “[w]e do not define the parameters of the education mandated by the constitution, as that task is, in the first instance, for the general court and the Governor,” Id. at page 192, and expressed its confidence that the general court and the governor would “fulfill their responsibility with respect to defining the specifics of, and the appropriate means to provide through public education, the knowledge and learning essential to the preservation of a free government,” Id. at page 193; and

Whereas, in Claremont School District v. Governor, 142 N.H. 462, 703 A.2d 1353 (1997) (Claremont II), the supreme court issued 4 purported mandates to the general court: define an adequate education, determine the cost, fund it with “constitutional” taxes, and ensure its delivery through accountability, and ruled that these 4 mandates comprise the state’s duty to provide an adequate education; and

Whereas, in Claremont II, the supreme court looked to “the 7 criteria articulated by the supreme court of Kentucky as establishing general, aspirational guidelines for defining educational adequacy,” Id. at page 474, and expressly viewed these guidelines as “benchmarks of a constitutionally adequate public education” and “anticipate[d] that [the other branches of government would] promptly develop and adopt specific criteria implementing these guidelines,” Id. at page 475; and

Whereas, in Claremont II, the supreme court explained, “[w]hile the judiciary has the duty to construe and interpret the word ‘education’ by providing broad constitutional guidelines, the general court is obligated to give specific substantive content to the word and to the program it deems necessary to provide that ‘education’ within the broad guidelines,” Id. at page 475, all consistent with the duties imposed by Article 83 of Part II; and

Whereas, in Claremont School District v. Governor (Motion for Extension of Deadlines), 143 N.H. 154, 725 A.2d 648 (1998), the state acknowledged that the general court had yet to achieve “a system to ensure delivery of a constitutionally adequate education” as defined by the supreme court in Claremont II, Id. at page 160; and

Whereas, in Claremont School District v. Governor (Statewide Property Tax Phase-In), 144 N.H. 210, 744 A.2d 1107 (1999), the supreme court denied as premature the plaintiffs’ request to assign a master for purposes of fact-finding to determine the definition of a constitutionally adequate education, Id. at page 212; and

Whereas, in Opinion of the Justices (Reformed Public School Financing System), 145 N.H. 474, 765 A.2d 673 (2000), the supreme court noted that constitutional adequacy had yet to be defined and that “[t]he content of a constitutionally adequate education must be defined, in the first instance, by the legislature,” Id. at page 478; and

Whereas, in 2003, the general court enacted HB 139 (Laws of 2003, Chapter 314), repealing and reenacting RSA 193-E, in which, in RSA 193-E:2, titled “Criteria for an Equitable Education,” the general court provided what it considered an adequate definition of what it considered to be a constitutionally adequate education; and

Whereas, in 2005, Londonderry School District School Administrative Unit (SAU) # 12, Merrimack School District SAU # 26, and New Hampshire Communities for Adequate Funding of Education, a non-profit organization consisting of 19 school administrative units and towns, filed a petition for declaratory relief and a motion for summary judgment in the Hillsborough County superior court challenging the constitutionality of the 2005-2006 legislative session’s biennial education funding bill, HB 616 (Laws of 2005, chapter 257), on grounds that the bill failed to define, determine the cost of, and ensure delivery of a constitutionally adequate education; required a number of municipalities to fund a constitutionally adequate education through local taxes; all but eliminated so-called “donor communities” and imposed an unreasonable and disproportionate tax burden on property-poor municipalities with respect to the funding of education; and created a class of former donor communities that retained all the revenue they raised through the statewide enhanced education tax, resulting in a violation of equal protection, which bill the superior court found unconstitutional on its face in the course of granting the motion for summary judgment, Londonderry School District School Administrative Unit (SAU) #12, et al. v. State of New Hampshire, No. 2005-E-0406 (March 7, 2006); and

Whereas, on appeal from the superior court’s Londonderry decision, the supreme court ruled that the general court had yet to isolate which parts of the statutory scheme encompassed by RSA 193-E:2 comprised constitutional adequacy, and that under this scheme a citizen or school district could not determine the distinct substantive content of a constitutionally adequate education, Londonderry School District School Administrative Unit (SAU) #12, et al. v. State of New Hampshire, 153 N.H.___, 907 A.2d 988 (September 8, 2006); and

Whereas, in Londonderry, the supreme court stated that even if the current system of delivery of educational services, in combination with the current statutory definition, established a constitutionally adequate education, there would be no need for any local education taxes, as the state would be required to pay for implementing the entire statutory scheme; that “[w]hatever the state identifies as comprising constitutional adequacy, it must pay for,” and that “[n]one of that financial obligation can be shifted to local school districts, regardless of their relative wealth or need;” and

Whereas, in Londonderry, the supreme court warned that the general court would be given until June 30, 2007 to enact a workable definition of what constitutes a constitutionally adequate education, failing which the court would take action to impose upon the people of the state of New Hampshire its vision of educational adequacy, including invalidating the general court’s funding formula, appointing a special master to aid in defining a constitutionally adequate education, and remanding the case to the superior court for further factual development as to whether the state is providing sufficient funding to pay for that constitutionally adequate education, so defined; and

Whereas, it would appear that the only reason for having in the statutes a definition of an adequate education would be to facilitate litigation against the state, in that, in the words of Justice Duggan in Londonderry, “a further statutory articulation of the specific components of a constitutionally adequate education would certainly be more conducive to judicial review in any challenge made under any of the Claremont II mandates;” and

Whereas, in requiring the general court to facilitate litigation against the state thusly, the supreme court appears to wish to enmesh the judicial branch forever in what otherwise would be purely political disputes between and among school districts competing for allocations of state tax revenues; and

Whereas, it would appear further that the actions threatened by the supreme court to delegate matters of education policy and funding to itself, the Hillsborough county superior court, and/or to a special master or other “experts” appointed by either court in order to determine how the duly enacted laws of the state of New Hampshire comport with those of the states of West Virginia, Kentucky, Montana, and Washington, among possible others, constitute an unprecedented, unparalleled, and unacceptable invasion by the judicial branch into the core constitutional policymaking authority of the elected branches of the government; and

Whereas, under our republican form of government, the members of the general court are the constitutional policy “experts,” regardless of whether or not the members of the supreme court agree with their findings and conclusions; and

Whereas, before submitting to a state of subjugation to and inferiority respecting the judicial branch, the elected branches have a right and a solemn responsibility to ascertain the basis for the supreme court’s claim of constitutional authority to exercise such direction and supervision over them, and to require reassurance concerning the soundness of the scholarship behind the court’s Claremont series of decisions, and to be informed of the educational qualifications of the court’s members;

Now, therefore, be it resolved by the New Hampshire house of representatives:

That the justices of the supreme court be required pursuant to Article 74 of Part II of the New Hampshire constitution to give their answers to the following questions:

I. Please describe in detail any specialized education and/or experience each current justice and each former justice who participated in any of the Claremont series of educational funding decisions had in each of the following subjects:

(a) History of New Hampshire during the Colonial, Revolutionary, and Constitutional eras;

(b) American history during the Colonial, Revolutionary, and Constitutional eras;

(c) Federal constitutional law and history;

(d) New Hampshire constitutional law and history; and

(e) British constitutional law and history.

II. Please state whether, and the extent to which, if known, each of the subjects listed in the foregoing question I was a factor in the nomination or confirmation of each such justice to the supreme court.

III. Please state whether, and the extent to which, each of the subjects listed in the foregoing question I was a subject of written or spoken inquiry or discourse between the nominee and the governor or executive council during the nomination and confirmation process of each such justice.

IV. Please state the basis of any assumption each member of the court may have that his or her opinion, or the opinion of justices of the supreme court in general, of the meaning of the New Hampshire constitution is necessarily better than that of any number of members of the general court who may have equal or better credentials or background in the subjects listed in the foregoing question I.

V. It is clear from numerous decisions of the supreme court and the writings of scholars in the field that the court traces its asserted right to judicial review; that is, the authority to render opinions of the constitutionality of legislative enactments that are final and binding upon future general courts - to the case of Merrill v. Sherburne, 1 NH 199 (1818). That case, however, was limited by its facts to the practice theretofore followed by the general court whereby, upon application of dissatisfied litigants, it would sometimes pass laws granting new trials in particular cases, a process known as “restoration to law.” In Merrill, the court ruled that a statute granting a new trial necessarily involved nullifying an existing judgment, which constituted an act of adjudication, and that since the separation of powers established by Article 37 of the Bill of Rights (Part I) of the constitution reposed all adjudicatory powers in the judicial branch, the practice of “restoration to law” was unconstitutional. Given the logic of this decision, and given that Merrill is universally still regarded as sound precedent and is often cited with approval by the court, please state why, if it is unconstitutional for the general court to enact a statute directing a court to hold a new trial and thereby nullify a previous adjudication, it is not also unconstitutional for the supreme court to issue an adjudication directing the general court to pass a new law and thereby nullify a previous enactment.

VI. Apparently in no instance of an act of “restoration to law” passed during any of the colonial, post-colonial, and post-constitutional periods, until the Merrill decision put an end to them, did the general court ever direct a court as to the verdict it must reach, meaning that the outcome of the new trial ordered by the general court might well be the same as that of the earlier one. Yet, in the Londonderry decision, in conformity with its earlier decisions in Claremont, the court has issued an adjudication that not only involves declaring an existing education law null and void, but goes well beyond this by purporting to oblige the general court to enact a new education law that follows narrow parameters of the court’s determination. Again, given the logic of the Merrill decision and given its universal acceptance as a sound exposition of the separation of the judicial and legislative powers, please state why, if it would be unconstitutional for an act of the general court to direct the verdict of an adjudication of the judicial branch, it would not also be unconstitutional for the supreme court to direct the substantive content of an enactment of the legislative branch.

VII. Article 8 of Part I expressly recognizes that the authority of the government is derived from the people, and must be accountable and responsive to them. In election after election, and in survey after survey, the sovereign people of this state have made it clear that they do not want a general sales or income tax, and that they desire to retain local control of the public schools. The general court has concluded that implementation of the system of public education implicit in the Claremont series of cases and confirmed in the Londonderry case cannot be funded by the state without imposition of such a tax and that, with such funding, local control would be lost as a result of the unavoidable fact of political life that power follows the money. Given that the people of New Hampshire have a fundamental right to accountability and responsiveness from their government under this express constitutional provision, and given the sense of the people as determined by their votes and the findings of successive general courts they have voted into office, please state why it does not follow that they have a right to live, and the general court has a duty to enable them to live, under the policy choices made by the general court and not those preferred by the court.

VIII. Article 12 of Part I states that the inhabitants of this state are not controllable by any other laws than those to which they or their representative body have given their consent. This would appear to mean that no policy choice articulated by the court, no matter how artfully clothed in the raiment of the constitution, can be enforced against the people unless the people directly, or acting through the general court, have consented to it. Please state why this express constitutional guarantee does not completely refute the notion that the judicial branch can direct the legislative and executive branches to implement a policy preferred by the judicial branch, but not consented to by the people or the general court.

IX. Article 28 of Part I states that no tax “shall be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people, or their representatives in the legislature, or authority derived from that body.” [Emphasis added.] And yet, in its Londonderry decision, the court has reaffirmed and reinforced its earlier pronouncements that the “constitutionally adequate education” it has contrived from the duty to “cherish the interest of…public schools” set forth in Article 83 of Part II, must be paid for by the state, and has threatened to make this happen by its own supposed authority under the pretext that “the judiciary has a responsibility to ensure that constitutional rights not be hollowed out.” Given that the Bill of Rights protection of Article 28 of Part I is express and unambiguous, and that the duty to provide an “adequate” education as it has been defined by the court is highly subjective and controversial, please explain why the court may lawfully ignore the former in order to implement the latter; and why its doing so would not “hollow out” the constitutional right specified by Article 28 of Part I.

X. Article 29 of Part I reposes the power of suspending the laws, or the execution of them, exclusively in the general court, or by authority derived from the general court, “to be exercised in such particular cases only as the general court shall expressly provide for.” In what appears to be in direct contradiction of this express refinement of the separation of powers set forth in more general terms in Article 37 of Part I, the court, in the Claremont series of decisions and in other cases, has taken for granted having authority to suspend and refuse to execute laws whenever they are considered by a majority of its members to be unconstitutional, notwithstanding that the general court may disagree, and notwithstanding that the general court has never authorized the court to exercise such authority, Please state the basis of the court’s assumption of this right of suspension granted by the people to the general court exclusively by Article 29.

XI. Article 31 of Part I provides that the general court shall assemble for the redress of public grievances and for making such laws as the public good may require. Does not the inclusion of so specific a means of addressing allegedly unjust or unconstitutional laws completely refute the notion that recourse in such matters should and with propriety can be had to a coordinate branch of the government, particularly in light of the separation of powers implications inherent in one branch of the government exercising supervisory authority over the manner in which another branch carries out its constitutionally allocated functions? Under the New Hampshire constitution, is not the provision for biennial elections for both chambers of the general court and for the governor, and not the intervention of the judicial branch in the constitutionally appointed duties of the elected branches, the true constitutional corrective for such allegedly unjust or unconstitutional laws?

XII. Article 84 of Part II prescribes the oath that must be made and subscribed by, among many others, representatives, senators, the governor, and the justices of the supreme court, before executing the duties of their offices. By this oath, they swear they “will bear faith and true allegiance to the United States of America and the state of New Hampshire, and will support the constitutions thereof,” and “will faithfully discharge and perform all duties” incumbent on them “agreeably to the rules and regulations of this constitution and laws of the state of New Hampshire.” Please state the basis of any belief you may have that representatives, senators, and the governor swear to this oath falsely, and/or that justices of the supreme court take this oath more seriously than do representatives, senators, and the governor.

XIII. In Claremont I, the court based its determination of the scope of the duty of the state under Article 83 of Part II to “cherish the interest of…public schools” on the history contemporaneous with the Article’s ratification, stating that “[i]n interpreting an article of our constitution, we will give the words the same meaning that they must have had to the electorate on the date the vote was cast. In doing so, we must place [ourselves] as nearly as possible in the situation of the parties at the time the instrument was made, that [we] may gather their intention from the language used, viewed in the light of the surrounding circumstances.” [Internal quotation marks omitted.] This decision, which purported to establish the justiciability of the education funding issue; and the subsequent Claremont series of decisions, which purported to established a duty of the general court to define a “constitutionally adequate education,” determine its cost, and pay its cost from state funds; were all based upon the court’s view of the implications of the historical record as discerned by the court in Claremont I. However, in an article published in the March, 2002 issue of the New Hampshire Bar Journal entitled “Claremont’s Achilles’ Heel: The Unrecognized Mandatory School-Tax Law of 1789,” Professor Walter A. Backofen analyzed the school-tax law of 1789 - completely unmentioned by the court in any of the Claremont decisions - which served as the model for public school funding until 1919. This article casts serious doubts upon the court’s scholarship, if it knew nothing of; and casts serious doubts upon the court’s motives if it knew of but ignored, this fundamentally important indicator of original intent, which, as Professor Backofen noted, “cannot avoid being a window on how the state constitution was interpreted by those closest to its framing, even by the framers themselves.” Review of this article shows clearly that there is no historical support for what Professor Backofen characterized as “the open-ended amount for the adequate education identified in Claremont I as the state’s original funding goal in 1784.” In light of this subsequent evidence, please state why the court should not reconsider its position on the content of the state’s constitutional education funding duty, particularly when the court’s view is so much at odds not only with the wishes of the vast majority of the people and their elected representatives, but with history.

XIV. Since references in the constitution to public schools or public teaching appear only in Article 6 of Part I and Article 83 of Part II, it is exclusively in those articles that the purpose, nature and means of funding of public education are addressed for constitutional purposes. Public schools were originally religious (protestant) schools, and this is reflected in their being within the same phrase and between the same pair of commas in Article 83 (“...all seminaries and public schools”). Article 6, in the original form ratified in 1784, specifically provided for local funding as the means of funding education: “[T]herefore, to promote those important purposes [morality and piety], the people of this state have a right to empower, and do hereby fully empower the legislature to authorize from time to time, the several towns, parishes, bodies-corporate, or religious societies within this state, to make adequate provision at their own expense, for the support and maintenance of public protestant teachers of piety, religion and morality” [Emphasis added]. Once again, the court is reminded that in Claremont I, it states that “[i]n interpreting an article of our constitution, we will give the words the same meaning that they must have had to the electorate on the date the vote was cast....In doing so, we must place [ourselves] as nearly as possible in the situation of the parties at the time the instrument was made, that [we] may gather their intention from the language used, viewed in the light of the surrounding circumstances.” [Internal quotation marks omitted.] In light both of the original relationship between Article 6 of Part I and Article 83 of Part II, and of the court’s standard for interpreting the constitution expressed in Claremont I, how is it possible for the court to have concluded then – and to adhere to that conclusion today - that “the term ‘shall be the duty....to cherish’ in our constitution... commands, in no uncertain terms, that the state provide an education to all its citizens and that it support all public schools?

XV. Article 37 of Part I defines the constitution as a fabric, one indissoluble bond of unity and amity; that is, one document in which there is no internal conflict, and in which one article cannot be considered in isolation of or as contradicting any other article covering the same subject. Would the court not agree, therefore, that since the express wording of Article 6 of Part I provided, as a basic right of the people, that the support and maintenance of teachers was to be funded locally by “the several towns, parishes, bodies-corporate, or religious societies within this state,” the subjective word “cherish” in Article 83 of Part II cannot, in any way consistent with recognized rules of construction, properly be construed to overrule this, and to require instead state funding, not of a part only, but of the entirety of this cost?

XVI. Were the general court and governor to continue to disagree with the court as to the substantive content of the duty set forth in Article 83 of Part II, to “cherish the interest of…public schools,” and to continue to pass education funding laws that meet the general court’s own view of its constitutional duty in this regard, and were the court to continue to take the position that its view of the constitutionality of such laws takes precedence over that of the general court, how precisely, in practical terms, could the court lawfully and constitutionally either oblige the general court and governor to comply with the court’s view, or implement its own?

That the clerk of the New Hampshire house of representatives forward copies of this resolution to the justices of the New Hampshire supreme court.