The ConVal Education Funding Decision … or How Chris Sununu Wasted Three Supreme Court Nominations

Here is the most important (and remarkable) part of the decision that was issued on March 23rd, but I have not had the time to comment on it until now.

… The State does not contest the underlying law applicable to the issues in this case. Under our education funding jurisprudence, Part II, Article 83 of the State Constitution “imposes a duty on the State to provide a constitutionally adequate education to every educable child in the public schools in New Hampshire and to guarantee adequate funding.” Claremont School Dist. v. Governor, 138 N.H. 183, 184 (1993). To comply with that duty the State must “define an adequate education, determine the cost, fund it with constitutional taxes, and ensure its delivery through accountability.” Londonderry Sch. Dist. v. State, 154 N.H. 153, 155-56 (2006) (quotation omitted). …

In plain English … Sununu either thinks the Claremont decisions are good law OR he knows the Claremont decisions are NOT good law, but thinks it would hurt his poll numbers to actually take that position (you can practically hear one or more of his kiddie-corps/RINO staff … “Governor, Governor, we can’t let the Democrats frame this as you’re against an adequate education.”).

Of course, anybody who actually has half a brain and has spent half an hour thinking about it knows the Claremont decisions are NOT good law. There is nothing in the constitutional text about adequacy or any other qualitative standard. There is no real mathematical formula … never mind a legal formula … for determining how much adequacy costs.

Education spending is a question of policy to be determined at the ballot box, not in a courtroom by a judge who does not have to consider … and is likely totally ignorant about … how spending more on education may underfund police, fire, roads, etc., and/or the effect of raising taxes on economic growth and on the quality of life for working and middle-class people. A long-winded way of saying, education funding is a quintessentially political issue that courts have no business touching.

And speaking of quintessentially political … the author of the court’s opinion, Patrick Donovan, a Sununu pick, actually made a campaign promise to then Executive Councilor Andru Volinsky that he would be a “pro-Claremont” judge:

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.

(Note that the internal link in the last paragraph above no longer works, which I assume is because Volinsky is no longer on the Executive Council as the link was to his notes of the EC hearing.)

And speaking of quintessentially political … the rationale that it was proper for the Supreme Court NOT to consider whether the Claremont decisions were correctly decided because Sununu did not challenge these decisions has the effect of allowing the executive, a political branch, the ultimate say on constitutional interpretation in this case. As an independent branch of government, the Supreme Court is always obligated to consider whether the law in issue … which includes the Court’s precedents … is constitutional.

The trial court’s decision should have been REVERSED because the Claremont cases should have been OVERTURNED because the Claremont cases were obviously NOT correctly decided.

INSTEAD, we are going to have a sham of a trial where everyone involved pretends that it is possible to quantify how much an “adequate education” costs … as opposed to what will really transpire, which is a single, unelected judge telling us how much he thinks the State should be taxing and spending on public education.