Something Steve’s Post on the Florida Supreme Court’s Recent Education Funding Decision Made Me Think Of …

Steve MacDonald recently posted Florida Court Invokes Separation of Powers in Refusal To Play ‘Adequacy’ Game in Public Education on Granite Grok.

You should read it. You should also read the decision.

As a parenthetical note, the Florida constitution -before the amendment in issue in the decision- actually contained the word “adequate”:

Prior to 1998, article IX, section 1 provided in relevant part as follows:

Adequate provision shall be made by law for a uniform system of free public schools . . . .

Nevertheless, the Florida Supreme Court held that the claim that the State was not providing an “adequate education” was a non-justiciable political question.

The New Hampshire Supreme Court, in contrast, despite the absence of the term “adequate” or any qualitative or quantitative standard for that matter:

Knowledge and learning, generally diffused through a community, being essential to the preservation of a free government; and spreading the opportunities and advantages of education through the various parts of the country, being highly conducive to promote this end; 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, to encourage private and public institutions, rewards, and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections, and generous sentiments, among the people: 

denied any violation of the separation of powers and essentially began acting as the State Supreme School Board.

But back to what Steve’s post made me think of.

In 2006, the New Hampshire Supreme Court issued Londonderry School District v. State, in which the court once again played Supreme School Board:

… the current education funding and “definitional” statutory framework falls well short of the constitutional requirements established in this court’s Claremont decisions.

I filed an amicus brief in that case on behalf of Granite State Taxpayers. It was based on a law review article I had recently completed for the Franklin Pierce Law Review, New Hampshire’s Claremont Case and the Separation of Powers. In a nutshell:

I begin by examining the text and structure of the State Constitution and then consider whether there are judicially discoverable and manageable standards for determining what level of education is adequate and how much funding is necessary to reach that level. Because there is a textually demonstrable commitment of education funding and education policy to the legislative branch, and because what an adequate education comprises and costs are quintessentially political questions, Claremont represents a clear trespass on legislative powers and should be overruled.

During the course of the litigation, I and a few State Representatives paid a visit to Speaker of the House, Doug Scamman, to urge him to argue that Claremont should be overruled on separation of powers grounds. This was adamantly opposed by his legal counsel, and the meeting became very acrimonious as Scamman’s legal counsel could not present any legal arguments at all, never mind persuasive legal arguments, against arguing that Claremont should overruled. Indeed, at one point, Representative Greg Sorg became completely frustrated and tore into him and told Scamman that the legal counsel was not properly representing the House.

So who was that legal counsel? Well, he now goes by the title Justice of the New Hampshire Supreme Court Patrick Donovan. You know the nominee about whom Executive Councilor #VolinskyAgenda all but said was on his side:

“We tried Claremont against each other, and I’ll tell you candidly, you were the one we felt we could speak to on the other side,” Volinsky said to Donovan. “There’s nothing from that experience to my mind that was negative.”

Indeed, Donovan basically pledged to #VolinskyAgenda during his confirmation hearing that he would support the Claremont decisions:

Mr. Donovan confirmed that the principles established in the Claremont cases are settled and he saw no reason to overturn them in the future.

So, to sum up, I would not bet the house or even the doghouse on the New Hampshire Supreme Court following in the footsteps of the Florida Supreme Court if Mr. #VolinskyAgenda does bring his long-threatened grandson of Claremont lawsuit.

Governor Sununu made sure of that by wasting two State Supreme Court nominations.