Lawmakers are considering a new solution to New Hampshire’s (potential) $500 million education funding dilemma:
Ignore the state Supreme Court.
A proposed House concurrent resolution (HCR) allows lawmakers to say the state Supreme Court’s 1993 Claremont decision, which defines a constitutional right to an adequate education, is a non-binding suggestion and not a court mandate.
“This simply affirms that the power of judicial review is not the power to force the other branches to pass legislation,” said Rep. Greg Hill (R-Northfield), a lead sponsor of HCR 11.
Hill brought his proposed resolution to the House Judiciary Committee on Wednesday, hoping to inspire lawmakers to take control of the education spending issue. He argued the Claremont decisions regarding “adequate funding” were wrongly decided and violated the separation of powers.
“This (resolution) says that we, the House and Senate, find the lines of responsibility between the legislative and judiciary to have been crossed,” Hill said.
The Claremont Decision is a fiscal time bomb that could finally go off this year. The pending ConVal school funding decision, which could force a $500 million per year state spending increase, is based on the court’s view of how much funding is “adequate.”
The House Judiciary Committee also heard testimony Wednesday on a proposal to possibly impeach the ConVal judge, Rockingham Superior Court Judge David Ruoff. The proposal does not make any specific claims that Ruoff committed an impeachable offense; it only seeks an investigation into his conduct.
In November 2023, Ruoff sided with the Contoocook Valley School District in finding the state is still violating the Claremont decision by underfunding schools. Ruoff ordered the state to up the per pupil adequacy grant from $4,100 to at least $7,400. The state has appealed to the Supreme Court and a decision is pending.
HCRs do not have the force of law in New Hampshire, making the proposal as a defiant gesture rather than a policy change, said Greg Sorg, an attorney who backs the resolution. Defiance against judicial overreach is now needed, he said.
“I always felt it would be a healthy thing in an egregious case like this if the legislature repudiated the court,” Sorg said.
House Judiciary Committee member Rep. Tim Horrigan (D-Durham) said the legislature is already ignoring the Claremont decision, and has been for the past three decades. In the 16 budgets passed since the 1993 decision, the legislature effectively ignored the ruling and continues to underfund education.
“Haven’t we gotten away with not funding education? Haven’t we triumphed over the courts?” Horrigan said.
New Hampshire lawmakers approved about a $150 million increase in public school funding in the last budget. The state spends more than $1 billion on public education, including adequate education grants and statewide property tax revenue. If the ConVal lawsuit decision is upheld by the Supreme Court, the state will need to come up with another half a billion dollars.
Zach Sheehan with the New Hampshire School Funding Fairness Project, said the state only pays for less than a third of public education costs. Local taxpayers carry the heaviest burden, paying 70 percent of the education costs through local property taxes. That burden is because the state has failed to live up to Claremont, Sheehan said.
Horrigan suggested increasing statewide taxes to pay for education — the most obvious option being an income tax — would lower the local property tax burden.
“Isn’t that an option?” Horrigan asked.
Sorg is skeptical that adding an income tax would lead to a smaller overall tax bill for Granite Staters.
“I think the appetite of the schools for money is just limitless,” Sorg said.
