Budgeting by Lawsuit: The NH Legislature v. The Courts

In the more than 30 years since the N.H. Supreme Court ruled that the state has a constitutional obligation to fund an adequate education, there has been a steady stream of lawsuits and court rulings. The legislature has yet to resolve the issue to the Courts’ satisfaction. The prison system has also been the subject of lawsuits for decades, most recently over conditions in the men’s prison.

Is this dynamic simply an exercise in the separation of powers – how one branch of government checks the power of another?   How long is too long for a legal dispute to be resolved?   When does a court order infringe on the legislature’s power of the purse? When does delayed implementation of a court order amount to contempt of court?  

Annmarie Timmins, Henry Klementowicz, Rep. Bob Lynn

These were among the questions discussed during Courts, Coffers, and Separation of Powers, a Constitution Week conversatioat the UNH Franklin Pierce School of Law, hosted by the Warren B. Rudman Center for Justice, Leadership & Public Service and the New Hampshire Supreme Court Society.

Panelists included Attorney Henry Klementowicz of the ACLU of New Hampshire and Rep. Bob Lynn (R) of Windham. Lynn has also held many positions in the judiciary, including as Chief Justice of the New Hampshire Supreme Court. NHPR Education and Youth Reporter Annmarie Timmins moderated the discussion. Listen to the full discussion here.  Quotes in this piece have been edited slightly for clarity and brevity.

Timmins began by reading Article 37 of the New Hampshire State Constitution.

“In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.”

The three branches, though independent, must cooperate, said Rep. Lynn.

“It’s really important when we think about separation of powers to also think about checks and balances and also accountability between the branches, and to each other,” Klementowicz said. 

It took decades for accountability to arrive for female inmates, who at one time were incarcerated out of state.  After they won a civil class action lawsuit charging sex discrimination, the state established a temporary prison in Goffstown. After more court battles, the legislature finally funded a permanent prison for women, which opened in 2018.  The men’s state prison has been the subject of lawsuits focused on health and safety conditions, prompting the state to consider building a new prison, though paying for it could be a major challenge.  Not paying for a new prison, however, warned former Governor Chris Sununu, could lead to more lawsuits. 

Education, the Legislature, and the Courts

For Lynn, the New Hampshire Supreme Court’ encroached on the legislature’s budgetary prerogative when it affirmed a lower court's ruling setting a specific amount the state should pay per student, The Court described this increase as “a conservative minimum threshold,” to serve as “guidance for future legislative action.”

The Court deemed the current base aid New Hampshire provides school districts too low to fulfill the state’s constitutional duty to provide an adequate education.  

Still, Lynn said the legislature will seriously consider the ruling and will try to come up with an appropriate response. “Despite some noise I've heard in some quarters —  ‘Well, let's just ignore it’ — We're not going to ignore it. We're not going to ignore the decision. The legislature, I think, is going to give it serious consideration and try to decide how it responds.”

But as Klementowicz sees it, the court was understandably exasperated. “If the legislature had been more proactive in terms of funding the schools in a way that the court has been saying it has to do for decades,  maybe they wouldn't have had to say what they said in ConVal. because the matter could be closed, but that's not what happened.”

Lynn defended the legislature’s school funding efforts.  “We're actually spending a lot more on education at the state level now than we were back then. I understand the court has said it’s not enough, but still there's been a substantial change.”

Education and the Constitution

Both Lynn and Klementowicz agreed education is distinct from other legislative obligations, such as funding prisons, because the State Constitution, as it was written and has been interpreted, affirms that the state must provide an adequate education. 

The State Constitution mandates that the state “cherish the interest of literature and the sciences, and all seminaries and public schools.”   The Constitution could be amended to remove that language, Klementowicz said, if  legislators and voters choose to do so. “We have a very difficult constitution to amend, but it's possible. Until they do it, I think the court is well within its rights to interpret that provision,” he said.

In interpreting that provision, he said, the court is uniquely positioned to make fact findings, hear testimony, cross examine expert witnesses, and follow the rules of evidence.

Lynn described the constitutional imperative to “cherish” education as “aspirational.” And he takes issue with the original Claremont decision.  “I have a real problem with the original idea that this is a constitutional right -- that any citizen can kind of demand that the government has to fund something at a certain level. I'm troubled by that.”

 Finding the Funds

The ConVal decision could force the legislature to seek a new source of income, like a sales or income tax, Lynn said. “I feel pretty confident that the legislature will not do that. And I think I would agree not to do that. For the judicial branch to require the legislature to have an income tax or a sales tax, to me, is just beyond the pale.”

The state has long relied on the statewide property tax, which has also come under legal scrutiny, with property-rich towns,  so-called "donor towns, allowed to keep the excess money they don’t need to fund their schools, using it instead to offset other local taxes.

Lynn seemed to have little sympathy for these donor towns.  “As a matter of policy, I don't see why it's inappropriate to require that towns that raise excess money, to have that money go into the pool that would go to poor communities," he said.

A superior court judge ruled this funding approach unconstitutional in August, agreeing with the plaintiffs that differences in property taxes between wealthy and poor towns, combined with inadequate school funding provided by the state, leads to unconstituionally high taxes in property-poor towns.  The matter is now in the legislature’s hands.