This little gem made it into the budget bill, HB2, which was passed by both houses and signed by the governor.
Legislative Declaration of Authority Regarding Public Education. In its 1993 and 1997 decisions, in the so-called Claremont series of public school funding cases, the New Hampshire Supreme Court ruled that the New Hampshire Constitution imposes upon the legislature 4 obligations with respect to public K-12 education: (1) define an adequate education; (2) determine its cost; (3) fund it with constitutional taxes; and (4) ensure its delivery through accountability. Although the legislature has from the beginning had grave reservations as to the court’s authority to impose these obligations upon a coordinate branch of government, in the spirit of comity it has over the subsequent quarter-century devoted extensive time, energy and public tax dollars to satisfying them. However, in the most recent of these cases, the judicial branch has asserted authority to review and set aside the legislature’s determinations with respect to its 4 supposed obligations, and to fund education at levels determined by the court through a process which, though adjudicatory in form, is legislative in substance. Accordingly, the legislature now deems it necessary to definitively proclaim that, as the sole branch of government constitutionally competent to establish state policy and to raise and appropriate public funds to carry out such policy, the legislature shall make the final determination of what the state’s educational policies shall be and of the funding needed to carry out such policies.
What happens next?
Well, the courts recently dropped a decision in the ConVal case. But given that the legislature has just definitively proclaimed that it’s not going to be bound by the decision, it’s not clear that the decision is even worth reading.
But there are a couple of things that the legislature should do, while it has momentum.
First, it should also definitively proclaim that in keeping with the plain words of Article 83 of the state constitution — in particular, the word and — neither the state or any subdivision of the state may do anything for, or to, a public school that it may not also do for, or to, a seminary. (For example, since the government cannot fund, operate, or regulate a seminary, it cannot do those things for a public school, either.)
Second, the legislature should definitely proclaim that what is true for education is true in every other area of public policy as well:
The legislature now deems it necessary to definitively proclaim that, as the sole branch of government constitutionally competent to establish state policy and to raise and appropriate public funds to carry out such policy, the legislature shall make the final determination of what the state’s educational policies shall be and of the funding needed to carry out such policies. The judicial branch may offer non-binding advice to the legislature — for example, by identifying passages that judges in particular cases might be able to deliberately misinterpret in order to undermine or even reverse the legislature’s intent.
That is, the legislative branch has a golden opportunity to say to the judicial branch: You’re not the boss of us. And you’re not the Constitution.
If it doesn’t make the most of this chance, it could be a long, long time before it gets another.
