Proposed NH resolution up for discussion on 9/27 would declare state Supreme Court decisions on school funding non-binding

Greetings Andrew Cohen readers!

Can a state legislature simply pass a law, or issue a resolution, declaring the state’s courts have no jurisdiction to hear certain cases regarding the state constitution? A special committee of New Hampshire’s House is set to find out next week.

In states where the state constitution mentions a right to a public education, there is nothing especially new about efforts by legislatures to prohibit courts from issuing orders regarding enforcement of the provision in general or school funding levels in particular.

New Hampshire’s no stranger to such efforts, with at least 10 constitutional amendments proposed in the last several years to either explicitly prohibit courts from ruling on school funding or explicitly declare the legislature alone is to make the determination (and thereby implicitly cutting the courts out).

In 2011 two amendments of the implicit variety were proposed. CACR 7 and CACR 14, using different language, would have amended the state’s constitution to declare the legislature alone may set educational funding levels. CACR 14 was approved by the full Senate on March 30, but was reported out of the House Special Committee on Education Funding Reform with no recommendation and ultimately killed on the House floor on June 1.

The same Special Committee on Education Funding Reform has on its agenda for September 27  CACR 7 along with two unique proposals explicitly targeting the courts.

HCR 26, would simply declare prior state supreme court decisions on school funding, known as the Claremont cases, nonbinding.

Whereas, the Claremont decisions are irreconcilable with the structure, text and history of our constitution; the “right” to an “adequate education” declared in the decisions and the “duty” of the state to fund this right are nothing more than the views of the justices of the supreme court of what constitutes good social policy and, therefore, do not have the force and effect of law; and

Whereas, the legislature hereby finds and declares that the amount of state funding for public education required by the constitution has been and remains zero dollars, and that the legislature, not the supreme court, has the exclusive power and discretion to authorize any additional state funding, and that, to the extent not prohibited by Part 1, Article 28-a, the state may continue to delegate some or all of the responsibility for providing public education to the local school districts; now therefore, be it

Resolved by the House of Representatives, the Senate concurring:

That the legislature hereby finds and declares that the Claremont case’s mandates that the legislative and executive branches define an adequate education, determine its cost, fund its entire cost with state taxes, and ensure its delivery through accountability, are not binding on the legislative and executive branches.

HB 233, a proposed statute change, declares distributions made from the education trust fund “shall not be subject to judicial review.”

This would not be the first time this session the New Hampshire legislature has considered unilaterally declaring certain court cases void or nonbinding. Earlier in the session resolutions were introduced to declare a series of cases void (see previous posting here).

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