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Bar News - February 9, 2007

Panelists Discuss Amendment to Remove Court From School-Funding Issues



An audience comprised of dozens of legislators was urged to meet the school-funding challenge it faces from Supreme Court rulings by writing the Court out of the debate.


At a Jan. 19 forum in Concord sponsored by the Josiah Bartlett Center for Public Policy, several attorneys who have been involved in NH Constitutional issues or have been outspoken on the Claremont rulings, addressed the “whys” and “how-to’s” of an amendment.


The panel included: NH Attorney General Kelly Ayotte (who did not explicitly state support for an amendment);  Charles S. Douglas, a former NH Supreme Court justice and advocate of conservative causes; Martin Gross, a past participant in NH constitutional conventions; Edward Mosca, a critic of the Claremont rulings who chairs the Republican Party in Manchester; and Eugene Van Loan, a prolific writer on constitutional issues and critic of the Court’s interpretation of its powers of judicial review. The only speaker on the panel who opposed an amendment to take the court out of school funding issues was Scott Johnson, a member of the legal team that had litigated the Claremont cases.


The forum was attended by about 80 people, most of whom sported legislators’ badges. Attorney General Ayotte, who opened the conference with an analysis of the succession of rulings made by the Court over the past 16 years, sounded a theme that other panelists repeated: if the legislature fails to act by the Court’s June 30 deadline to define an adequate education and devise a constitutionally sound means to pay for it, the Court will do the job, and it is the wrong branch of government to do it.


“In no uncertain terms [the Court has] urged the Legislature to act,” she said. “This is an issue to be decided by the people’s representatives—not by a court of law. The time is now for all of us in the legislature and the executive branch to resolve this issue.”


Ayotte and several other speakers recalled the example of the Court’s recent involvement in crafting a constitutional legislative redistricting when the makeup of House districts was found unconstitutional. In that case, the Court appointed a special master—an out-of-state expert in redistricting plans—to help it craft a new plan. “If the legislature does not define education adequacy,” Ayotte warned, “One of the things that could happen is that one person or a small group of people will decide.”


“We never saw the guy,” said Douglas of the expert that the Court hired to help write a new redistricting plan.


“Having five lawyers in black robes deciding adequacy of education is like Soviet-style planning,” said Mosca. “It’s ludicrous.”

Douglas questioned the Court’s use of Article 83 in Part 2 of the NH Constitution to find a basic right to education. “Part 1 is our bill of rights,” he said. “The [writers of NH’s Constitution] did that first, and then they created a government to preserve those rights.”


Douglas pointed out that the NH Constitution has been amended 208 times—”We are not afraid to keep that document current with what is going on in society.” 


Van Loan, who recently authored a comprehensive critical analysis of the constitutional underpinnings of judicial review of legislative acts published in the fall issue of the Bar Journal, said the Court’s ruling in the Londonderry school funding case last summer is ultimately unenforceable.


“Londonderry is unique—it says that if the legislature does not pass a law, then the court will pass a law sui generis. I don’t think the Court can enforce that. The Court lives and dies on its moral suasion—[What happens if] it issues an edict without moral force? Courts need the cooperation of the executive and legislative branches to enforce their decisions.”


Johnson, the lone supporter of the Court’s actions in school-funding on the panel, said the real evil in the current situation is that the state imposes mandates and forces local governments to pay for them. He also said the legislature’s process for addressing school funding in past sessions has been less than open.


Van Loan and Gross anchored the “how-to” portion of the program, providing tips on how to write an amendment, and offering their own suggested language.


Van Loan said amendment drafters have to address two key questions: who or what entity should make the decisions on educational issues, and how will the expense of any solution be controlled? 


Gross urged that the amendment be written carefully to ensure it is “intelligible” and that when possible, words familiar in case law, are used. “You have to make sure the amendment does not create new areas for judicial interpretation—that you are not creating more grist for the judicial mill,” Gross prescribed. 


At the end of the forum, former Gov. Walter Peterson asked Douglas if he thought the Court would hold off on imposing its own education funding solution if, by the June 30 deadline, the legislature had proposed a constitutional amendment to the voters addressing the Court’s jurisdiction in the area.


“The justices read the newspapers, they know what is happening,” Douglas said, labeling his comments as speculation based on his experience as a justice, and not on inside knowledge of the current court. “The Court knows that there have been no questions on the ballot regarding education funding through this whole time. If they see a bipartisan coalition form, if they can think that there is some kind of unanimity on an amendment that would solve the court’s problem, then they have many ways to delay decisions [implementing its 2006 school-funding decision.]. I honestly think they don’t want confrontation with the other branches. If the amendment has viable backing, I think the court would be grateful that the end is near.”



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