By GARRY RAYNO, Distant Dome
How many people —outside of attorneys — know what the term “stare decisis” means?
It is a term that applies to court decisions, some at the forefront of the current political struggle over the abortion issue with the US Supreme Court’s Dobb’s decision and some in the Granite State central to the political combat over education funding currently on appeal to the state Supreme Court.
Under stare decisis courts are required to follow precedent, or previous decisions, when similar issues arise in new cases.
Most everyone remembers the confirmation hearings on US Supreme Court nominees and questions if they would follow the court’s past rulings on what was then the fundamental right to abortion, and the replies were it is settled law.
Well how has that gone? Like many things today, what was once the rule of law, now does not apply to everyone.
Under the concept, courts may only overturn “settled law” or previous decisions for compelling reasons, such as preventing injustice or if a sitting court believes a previous decision contains an error.
At the US Supreme Court, Justice Samuel Alito used the error argument in his majority opinion in overturning Roe v Wade and returning abortion rights to the states to decide.
Similar arguments have been made recently in the two education funding cases on appeal to the state Supreme Court, the ConVal School District suit over the state’s failure to fund an adequate education for students and the Rand suit over the constitutionality of the state’s method of administering the Statewide Education Property Tax, which the court ruled benefits property wealthy communities and unincorporated places with no or few students.
The issue was raised by Attorney General John Formella and Solicitor General Anthony Galdieri in their briefs filed recently in the two education funding cases.
And it has been raised by Republican lawmakers in amicus briefs filed by Senate President Jeb Bradley, and House Speaker Sherman Packard and 30 other GOP members of the House and Senate including most of the House majority leadership.
The briefs also bring to mind the term deja vu, or as the sage New York Yankee catcher Yogi Berra used to say “deja vu all over again.”
The arguments presented in the attorney general’s, Bradley’s and the 31 Republicans’ briefs urge the Supreme Court to at least review the two original Claremont education decisions and in the case of the lawmakers to overturn those decisions.
And the arguments are similar to ones Republicans made when the Claremont I and II decisions were issued by the court in the 90s, that the court misread Article 6, Part 1, and Article 83, Part 2 of the state constitution and how they should be viewed together.
They contended then as the 31 lawmakers do in a brief written by Franconia attorney and former Representative Gregory Sorg that the 1990s Supreme Court “interpreted Article 83 in isolation, without regard to Article 6. Given the obvious relationship between the two, and given the mandate of Article 37 of Part I that ‘the whole fabric of the constitution’ be interpreted and applied so as to constitute ‘one indissoluble bond of union and amity,’ the Court’s failure to consider and harmonize this relationship constituted error, resulting in an incorrect interpretation of Article 83.”
Article 6 deals with the rights of school districts to control education and its funding, while Article 83 authorizes the state to ensure the districts provide that education, Sorg contends.
The attorney general’s brief is a little less encouraging but certainly opens the door to revisiting if not overturning the original Claremont decisions.
“No decision from this Court has yet endorsed the trial court’s analysis, has repeatedly or consistently accepted or applied the trial court’s approach, or considered that approach with special care. Stare decisis thus poses no obstacle to concluding that the trial court’s approach is nonjusticiable,” they write. “Nor would it pose any obstacle to overruling this Court’s education-funding jurisprudence more generally if the Court determines for the first time in this appeal that its existing case law requires a trial court usurp the legislative and executive functions in the manner the trial court did here.”
That also includes the attorney general’s contention in arguing against both cases as did many lawmakers 30 years ago, that in making its decisions, the court usurps the authority of the legislative branch, conflicting with the constitution’s separation of powers provision.
Despite these rarified legal arguments, the essence is “the court made a decision we don’t like and want to change it or ignore it.”
And that is what the legislature has been doing for 30 years, refusing to abide by the original decisions and doing as little as possible to meet the dictates of those decisions.
Instead lawmakers from both sides of the aisle have tried an end around with proposed constitutional amendments and in many ways making a broken funding system worse by making it more reliant on property taxes, which is what put the state in the conundrum it has been in since the court ruled the state has an obligation to provide an adequate education to its children and to pay for it.
The court found the funding system unconstitutional for both students, who were denied an equal opportunity because of where they lived, and taxpayers for the same reason were paying varying rates for property taxes funding a state responsibility that needs to be “proportional and reasonable.”
Although anyone familiar with the system then and today knows the students in property-poor districts do not receive the same educational opportunities those living in property-wealthy districts do, and the last study done by the legislature several years ago made that abundantly obvious.
The briefs maintain the decision has brought a plethora of expensive lawsuits without settling or solving the problem which essentially blames the victims — students and taxpayers in property-poor communities — for the problem with the state’s education funding system.
Lawmakers have had 30 years to make progress, but instead of narrowing the disparities between communities, the imbalance is worse than it was when the Claremont suit was filed in 1991, and it is no accident the residents of property wealthy communities have benefited the most from what has been done by lawmakers.
Per-capita, New Hampshire is one of the wealthiest states in the country, but instead of tapping into that wealth for additional tax dollars to balance the funding system, the lawmakers instead went with a statewide property tax as the single biggest source of state funding, compounding the problem in what was essentially a slight of hand of switching the same tax dollars from one pocket (local school funding) to the other (state aid.)
Lawmakers have long avoided taxing wealth, and in the last few sessions, have worked to eliminate the one levy that does tax wealth — the interest and dividends tax — which ends with this calendar year.
The superior court judge whose decisions are being appealed, David Ruoff, went to the heart of the matter in one of his decisions when he wrote “The court carefully considered the relevant separation of powers concerns when issuing the Base Adequacy Aid Order. Ultimately, the Court concluded that those concerns must be balanced against the reality that the right to ‘a constitutionally adequate public education is a fundamental right.’”
He also noted in his motion denying the state’s request to reconsider his decision, “Given the historical difficulties in the school funding context, and in recognition of the plaintiffs’ substantial investment in time and resources in litigating this action, the Court maintains the view that establishing a clear guideline by which legislative action can readily be measured is not only permissible, but essential.”
And Ruoff referenced Aesop’s fable “The Wolves and the Sheep,” where the wolves convinced the sheep to dismiss the guard dogs.
With the suggestions to review or reverse the original Claremont decisions, the state and Republican lawmakers are encouraging the state’s highest court to dismiss the guard dogs. If the Supreme Court justices do that, it is at your peril.
Garry Rayno may be reached at garry.rayno@yahoo.com.
Distant Dome by veteran journalist Garry Rayno explores a broader perspective on the State House and state happenings for InDepthNH.org. Over his three-decade career, Rayno covered the NH State House for the New Hampshire Union Leader and Foster’s Daily Democrat. During his career, his coverage spanned the news spectrum, from local planning, school and select boards, to national issues such as electric industry deregulation and Presidential primaries. Rayno lives with his wife Carolyn in New London.
