Citing 1850 Constitutional Record Unavailable to the Claremont Courts.
Windham taxpayer and former Windham School Board member and occasional ‘Grok contributor ‘ Tom Murray has filed a constitutional challenge to New Hampshire’s education property-tax structure. He argues that previously unconsidered constitutional history undermines the foundation of the New Hampshire Supreme Court’s landmark Claremont school-funding decisions and their judicial progeny.
At the center of the case is the Journal of the 1850 New Hampshire Constitutional Convention, chaired by Franklin Pierce. The Journal was never printed at the time and was not published by the Secretary of State until 2005 — twelve years after Claremont I (1993) and eight years after Claremont II (1997) were decided.
Ironically (?), the 1850 Convention confronted the same problem — and reached the opposite Conclusion.
The Convention’s Committee on Education identified the same problems that would drive the Claremont litigation 140 years later: the declining “proportional valuation of the farming towns,” and the risk that in those towns “their means of education are unduly abridged.”
The Committee sought a system giving children throughout the State, “as nearly as may be practicable, equal advantages of education.” It did not, however, conclude that the existing Constitution already compelled that result. It found the opposite. That if more money was needed, “there should be a provision in the constitution authorizing and requiring the legislature to grant them.”
The Convention then adopted exactly such a provision, directing the Legislature to establish free common schools “at the public expense,” with an express assessment-and-collection formula. It was submitted to the voters, and in March 1851, the voters rejected it.
According to Tom, “The significance of 1850 is not that New Hampshire opposed public education — the record proves the opposite. The significance is that the men who wanted a mandatory funding mechanism wrote one, in plain terms, and the people voted it down. You cannot imply a mandate the voters expressly declined to grant.”
This challenge goes beyond the meaning of “Cherish”.
Tom says, you have to consider the NH Constitution, Part I, Article 6, which before 1968 contained an express empowering structure authorizing towns and other entities to make provision “at their own expense.” Tom and I have spent some time talking about it, and his argument is that the 1968 amendment removed that empowering language without replacing it—and without amending Article 83 to create a State funding obligation or a “public expense” requirement.
He further suggests that Part II, Article 5 has not received enough of the right sort of attention. While litigation has long focused on Article 5’s “proportional and reasonable” requirement, Tom reminds us that a separate command requires that legislative acts not be “repugnant or contrary to this constitution.”
“For decades the courts have asked whether education taxes are proportional,” Tom told me. “My case asks the antecedent question: if the underlying State funding obligation was never granted by the people, can the taxing system built on it survive Article 5 at all?”
This is a significant moment in NH Constitutional Law. The filing comes as the State itself, in the pending Rand v. State appeal (I’m still reading the State’s 125-page brief), argues that Claremont II is “fundamentally incompatible with the text and history of the New Hampshire Constitution.”
Tom stressed to me that his case does not challenge public education or the Legislature’s authority to enact education laws. “The question isn’t whether New Hampshire should educate its children. Of course it should,” he says. “The question is whether the people actually granted the State the taxing and funding authority Claremont attributed to Article 83. What no branch of government can do is amend the Constitution without the express consent of the people.”
Tom’s case seeks declaratory relief concerning the constitutional authority underlying the present education-funding system, raising claims under Part I, Articles 6, 12, 28 and 37, and Part II, Articles 5 and 83 of the New Hampshire Constitution.
Boom!
