2003 SESSION

03-2336

06/09

HOUSE CONCURRENT RESOLUTION 25

ANALYSIS

This house concurrent resolution declares that the directives of the judicial branch in the Claremont cases that the legislative and executive branches define an "adequate education," adopt "standards of accountability," and "guarantee adequate funding" of a public education are not binding on the legislative and executive branches.

03-2336

06/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

Whereas, under part 1, article 37 of the constitution of the state of New Hampshire, the 3 essential powers of the government of this state, the legislative, the executive, and the judicial, are to be kept as separate from, and independent of, each other, as the nature of a free government will admit; and

Whereas, only by a consistent and strict adherence to a separation of the powers of the 3 branches of the government can the rights of the people set forth in part 1 of the constitution be preserved, and the form of government set forth in part 2 be maintained; and

Whereas, the language of part 1, article 37 applies with equal force to the judicial as well as to the legislative and executive branches; and

Whereas, were part 1, article 37 to apply with less force to the judicial than to the legislative and executive branches, the legislative and executive branches would be inferior to, subordinate to, and dependent upon the judicial branch, and our system of government would be oligarchical and not republican; and

Whereas, it is the duty of the executive and legislative branches, pursuant to the oaths taken by their members under part 2, article 84, no less than it is the duty of the judicial branch, pursuant to the oaths taken by its members, not to contravene any portion of the constitution, and to be vigilant for and to oppose any contravention by another branch; and

Whereas, upon the occurrence of a palpable attempt on the part of the judicial branch to exercise any authority inconsistent with the judicial function, it is the right and duty of the legislative and executive branches to intervene to the extent deemed by them necessary, within the scope of their enumerated powers, to oppose and defeat such exercise, thereby to safeguard the fundamental principle of our form of government that each of its 3 branches should be confined to its constitutional limits; and

Whereas, in its decisions in the Claremont school funding cases, the judicial branch unambiguously directed the legislative and executive branches to pass laws "implementing" an "adequate education" based upon "seven criteria articulated by the Supreme Court of Kentucky," and to pass laws establishing "standards of accountability," and unambiguously stated that it reserved for itself the ultimate authority to determine the sufficiency of these laws; and

Whereas, for the judiciary to rule that the constitution of New Hampshire requires the legislative and executive branches to enact into law a certain definition of an "adequate education" or a definition of an "adequate education" based upon or incorporating certain criteria or parameters, or to enact into law any definition of an "adequate education" at all, adds legislative and executive powers to those of the judicial branch and unconstitutionally involves the judicial branch in the core policy-making functions of the legislative and executive branches; and

Whereas, for the judiciary to rule that the constitution of New Hampshire requires the legislative and executive branches to enact into law "standards of accountability," adds legislative and executive powers to those of the judicial branch and unconstitutionally involves the judicial branch in the core policy-making functions of the legislative and executive branches; and

Whereas, in its decisions in the Claremont school funding cases, the judicial branch unambiguously directed the legislative and executive branches to fund public education and unambiguously directed the legislative and executive branches how to do so; and

Whereas, for the judiciary to rule that the constitution of New Hampshire requires the legislative and executive branches to enact into law a certain system for funding public education or a system for funding public education based upon or incorporating certain criteria or parameters, or that the legislative and executive branches are required to enact into law any system at all for funding public education, adds legislative and executive powers to those of the judicial branch and unconstitutionally involves the judicial branch in the core policy-making functions of the legislative and executive branches; and

Whereas, at no time over the course of the 2 centuries of New Hampshire's statehood prior to the Claremont decisions did the judicial branch ever assert any authority to control, direct, or shape the educational policies to be pursued by the legislative and executive branches in terms of "adequacy" or any other qualitative measure; and

Whereas, at all times over the course of the 2 centuries of New Hampshire's statehood prior to the Claremont decisions, the judicial branch confined its review of statutory enactments and administrative actions respecting education to the constitutionality of the challenged statute or action and never considered the "adequacy" or any other qualitative measure of the statute or action; and

Whereas, for the legislative and executive branches to treat as binding upon them any ruling by the judicial branch directing them to enact definitions agreeable to the judicial branch of "adequate education," or "systems of accountability" or to enact a particular system for funding public education, would attenuate the republican form of government established by part 2 of the New Hampshire constitution, and be subversive of representative government; and

Whereas, the scope of part 2, article 83 is not limited to cherishing the interest of public schools alone, but expressly encompasses as well cherishing the interest of literature, the sciences, and all seminaries; and further expressly states there to be a duty to "encourage," "countenance" and "inculcate" many other pursuits and virtues as well; and

Whereas, by its very terms, and in accordance with its original understanding, part 2, article 83 applies equally to the many matters therein enumerated, and the historical record is clear that it was left to the legislative branch to decide which of these matters, if any, would be funded from the public purse and, consistent with the fundamental principle of the separation of powers, these legislative decisions were not subjected to judicial review; and

Whereas, acceptance by the legislative and executive branches of the judiciary's directives in the Claremont decisions would not merely be to surrender to the judiciary a portion of the legislative and executive power to set educational policy, but to set a precedent by which the judiciary may justify the exercise of legislative and executive policy-making powers over any number of other matters; and

Whereas, the Claremont directives that the legislative and executive branches must enact a certain definition of an "adequate education," and "systems of accountability" and a certain system of funding public education constitute a palpable exercise by the judicial branch of powers not granted to it by the constitution of New Hampshire, and the legislative and executive branches have the right and are duty bound to prevent the exercise of such powers in order to maintain within their respective limits the three branches of the government of this state; and

Whereas, the judicial branch is not constitutionally empowered to direct the legislative and executive branches to define an "adequate education;" and

Whereas, the judicial branch is not constitutionally empowered to direct the legislative and executive branches to adopt "standards of accountability;" and

Whereas, the judicial branch is not constitutionally empowered to direct the legislative and executive branches to "guarantee adequate funding" of public education; now therefor, be it

Resolved by the House of Representatives, the Senate concurring:

That the legislature, having fully considered the foregoing enumeration of constitutional principles and having fully considered the foregoing enumeration of deficiencies inherent in the Claremont rulings, finds that the directives of the judicial branch in the Claremont cases that the legislative and executive branches define an "adequate education," adopt "standards of accountability," and "guarantee adequate funding" of a public education are not binding on the legislative and executive branches.