So we saw this a few days ago:
Intrigued, we read the linked article. According to the bill (House Bill 1815)’s sponsor, Bob Lynn, HB 1815 is a repudiation of the ConVal decision:
“I think basically what it says is, ‘You, court, got it wrong. You didn’t give us the proper role that we have. You really ought to think about this again,’” said Rep. Bob Lynn, a Windham Republican, former Supreme Court chief justice, and author of HB 1815, speaking at a House Education Funding Committee hearing Friday.
Now we were really intrigued, so we read HB 1815. What we found is that while HB 1815 contains language asserting that how much to spend to deliver an “adequate education” and how to raise that money are “political questions,” not subject to judicial review, the bill leaves in place the statutory framework enacted to comply with Claremont. In other words, HB 1815 continues to recognize, at least implicitly, the four Claremont “duties,” and merely declares that how the representative branches meet the duties to determine the cost of an adequate education and fund that cost are not subject to judicial review.
Even HB 1815’s rhetoric is not the act of defiance its sponsor/supporters and its opponents claim it is. The ConVal majority no longer exists. Two new Justices nominated by Kelly Ayotte have been confirmed since the ConVal decision was issued. This undoubtedly makes the dissenting opinion of the two Sununu Justices, or something very similar to it, the view of a majority of the current court. In brief, and as we will discuss in more detail below, the current status of Claremont’s “right to an adequate education” is that all the Legislature and Governor need do to pass constitutional muster is to continue to go through the motions of defining, costing and funding an “adequate education.”
- HB 1815 Leaves In Place The Statutory Framework Enacted To Comply With Claremont
To evaluate Bob Lynn’s assertion that HB 1815 tells the State Supreme Court that ConVal “got it wrong,” we need to revisit the core holdings of Claremont. From the most recent ConVal decision:
As we discussed in From Claremont Through ConVal – The New Hampshire Supreme Court’s “Adequate-Education” Hoax these duties are not derived from, indeed are irreconcilable with, constitutional text, structure and history, and represent an egregious exercise of judicial activism. Yet HB 1815 does not explicitly or even implicitly reject the concept that the Legislature ad Governor have these duties. It merely contains language that can be construed as asserting that the “duties” to cost and fund adequacy are political questions, not subject to judicial review:
How the state and its local governmental entities choose to raise, allocate, and spend financial resources to implement this integrated public education system is a political policy matter reserved to legislative and executive judgment and control.
HB 1815 does not explain why the Legislature and Governor should reject judicial superintendence of the duties to cost and fund adequacy, but continue to maintain a single Statewide definition of adequacy and to accept judicial superintendence over how “adequacy” is defined and what “accountability” entails. There is no legal basis to reject judicial superintendence of the duties to “cost” and “fund,” but accept judicial superintendence of “define” and “ensure … accountability.” Every “duty” is the product of the same egregious judicial activism.
HB 1815 does nothing to effectuate the rhetoric rejecting judicial superintendence of the duties to “cost” and “fund.” It makes no changes to how the amount of State “adequacy funding” is determined and how it is distributed. For example, rather than install a true targeted aid scheme, HB 1815 continues to maintain the charade that school districts that can fund adequacy with just property taxes are nonetheless receiving “State funding.” (That is funding from the State property tax continues to count as State funding despite the tax operating, as a practical matter, as a local tax; i.e. all of the tax is raised within the school district and spent within the school district.)
Indeed, HB 1815 expressly states that all it does is maintain the status quo:
Maintaining the status quo, as HB 1815 does is hardly an “In Your Face, Supreme Court” because, as noted above, the ConVal majority no longer exists. The addition of two Ayotte Justices to the court undoubtedly means that the dissenting opinion of the two Sununu Justices, or something very similar to it, is now the view of a majority of the current court.
- The ConVal Majority No Longer Exists; Its Now A Sununu/Ayotte Court
As a matter of constitutional law, the ConVal decision that HB 1815 purports to repudiate is gibberish.
The case supposedly involves a “facial challenge” to RSA 198:40-a, the statute which sets the “cost of an adequate education” that is funded by “the State.” Facial challenges do not involve evidentiary hearings because the claim is that there are no circumstances that the law could be constitutional. In other words, a facial challenge involves a comparison of the law to the constitution. Yet there was an extensive evidentiary hearing in the trial court (three weeks) to determine “the components of an adequate education and their costs.”
An evidentiary hearing was necessary because there is nothing in the State Constitution providing even the slightest hint as to what an “adequate education” should entail and cost. In other words, the facial challenge in the recent ConVal decision involved not a comparison of RSA 198:40-a to the State Constitution, but a comparison of RSA 198:40-a to what a Superior Court Judge considers educational adequacy.
We do not need to get any deeper into the constitutional weeds. What matters is that the decision was three-to-two and the three justices in the majority will NOT be sitting on the next ConVal, if there is one. One Justice, a Lynch Justice, retired in 2025 and has been replaced with an Ayotte Justice. The other two were “specially assigned” retired Superior Court judges because two Sununu Justices were disqualified. One of those Sununu Justices just recently retired and has been replaced with an Ayotte Justice. The New Hampshire Supreme Court is now completely a Sununu/Ayotte court.
What this means is that the dissenting opinion of the two Sununu Justices in ConVal, or something very similar to it, is now the view of a majority of the current court. Again we do not need to get too deep into the constitutional weeds. It suffices to say that, while the dissent did NOT say Claremont should be overturned, the dissent ripped Claremont’s guts out by taking the position that judicial review of “the right to an adequate education” should show extreme deference to the State. In sum, the current status of Claremont’s “right to an adequate education” is that all the Legislature and Governor need do to pass constitutional muster is to continue to go through the motions of defining, costing and funding an “adequate education.”
- Why Volinsky Is Apoplectic
John Tobin and Andru Volinsky, the attorneys for the original Claremont plaintiffs, have harshly criticized HB 1815. From the NHPR article:
What really has Tobin and Volinsky so vexed is that the ConVal decision represents their last, best chance to achieve the primary goal of the Claremont litigation … a redistributive tax, preferably an income tax, to fund public education. They know that further litigation would be futile because the State Supreme Court is now a Sununu/Ayotte court and, as we discussed above, will show extreme deference to the State in any future litigation.
The “jig is up” for Tobin, Volinky and their “fellow travelers.” It’s either get the Legislature and Governor to go along with the additional $500 million the ConVal majority ruled was necessary to “fund adequacy” NOW or say goodbye with finality to their nearly 30-year old dream of an income tax. While HB 1815 does not undo any of the statutory gymnastics and gobbledygook enacted in response to Claremont, it does implicitly declare that there will be no additional $500 million in “adequacy funding.”This is why Tobin and Volinsky are lashing out at HB 1815
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