The year was 1818. And the name of the case was Merrill v. Sherburne.

It grew out of a probate dispute between Benjamin Merrill, the only beneficiary named in the will of Nathaniel Ward, and Ward’s heirs. The heirs successfully obtained a final court judgment disallowing the will, which dispossessed Merrill of land that he had lived on since 1806. Merrill then petitioned the legislature for relief. And the legislature, as it had many times previously, passed an act in 1817 granting a new trial.

The heirs "moved to quash," arguing that the act granting the new trial was unconstitutional. And the superior court of judicature agreed, ruling that legislation granting new trials in selected cases was unconstitutional because the legislature was exercising judicial power. And with that, the legislature had granted its last new trial.

The year is 2005. The name of the case is Londonderry School District v. State of New Hampshire. And it is the mirror image of Merrill v. Sherburne because it involves the judiciary exercising legislative powers.

The principal claim by Londonderry is that the education funding law passed during the 2005 legislative session (HB 616) is unconstitutional because of the way it was written. Specifically, Londonderry argues that the Claremont decisions require the legislature to define an adequate education and then determine what it costs. Because HB 616 wasn’t written in this manner, Londonderry wants the supreme court to say it is unconstitutional.

The problem with Londonderry’s claim is that the constitution says no such thing. In fact, it says just the opposite in Part 2, Article 2 – "The supreme legislative power, within this state, shall be vested in the senate and house of representatives." Which means that what the constitution really says is that it is up to the legislature how to distribute education funding between different school districts and, in fact, whether to distribute any funding at all.

Londonderry and the other school districts behind this latest education funding lawsuit would argue that Part II, Article 83 of the constitution, where the supreme court located the so-called right to an adequate education, is an exception to the legislature’s "supreme legislative power." But Article 83 is no such thing as it says nothing about the legislature being required to define an adequate education. Which shouldn’t come as too much of a surprise because it says nothing about an adequate education either.

But since the supreme court hasn’t shown any inclination to be constrained by the words of the constitution, or by what previous supreme court’s have said about the matter, or by the historical practices of the State, it is a good bet that the court will come down on Londonderry’s side. So what should the legislature do when the supreme court tells it that HB 616 is unconstitutional and that its constitutional duty requires it to define an adequate education and determine its cost?

Why, it should do exactly what the judiciary did in 1818 in the Merrill v. Sherburne decision, when the shoe was on the other foot. Just say no. Refuse to define an adequate education and continue to disburse education funding as it sees fit, because to fulfill its so-called constitutional duty would require the legislature to act as a conduit for the exercise of legislative power by the supreme court.

Unfortunately, the legislature has more than its share of judicial-Pavlov-dogs, whose first reaction would be to ask how high if the supreme court ever told them to jump. These legislators need to understand two things.

The first is that whatever the legislature says an adequate education costs cannot be paid for with local property taxes. For example, the Lynch plan was based on target spending of $8,290 per pupil, which is approximately $1.7 billion in total, which would require an income tax. The legislature’s supposed constitutional duty to define an adequate education and calculate its cost is simply a judicial income tax trap.

The second is that although it is going on eight years since Claremont II was issued and the legislature has yet to define an adequate education and figure out what the components cost, the sky still hasn’t fallen. Just as in 1818 the legislature couldn’t enforce its unconstitutional act granting Merrill a new trial, so too the supreme court cannot enforce its unconstitutional ruling that the legislature is required to define adequacy and determine its cost. Which shows how wise the State’s founders were in dividing government powers between the three branches.

Mr. Mosca is an attorney practicing in New Hampshire. LINK

Posted August 17, 2005

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