CONCORD — Republican lawmakers are seeking to ignore the state Supreme Court’s Claremont education funding decisions from the 1990s through passage of a resolution declaring that they violated the separation of powers among the branches of government.

The House Judiciary Committee heard from supporters and opponents of House Concurrent Resolution 11 that the court’s directives are not binding on the legislature.

The resolution claims the Supreme Court entered into lawmaking in the decisions, but that lawmaking is the purview of the legislative and executive branches of government. It says the court’s Claremont directives to define an “adequate education,’ adopt “standards of accountability” and “guarantee adequate funding” violate the state constitution’s separation of powers clause.

The prime sponsor of the resolution, Rep. Gregory Hill, R-Northfield, said a similar measure passed the House in 2003, but died in the Senate, which did not want to embarrass the court.

Hill and others said the Supreme Court wrongly decided the Claremont case because it misread two sections of the state Constitution, which asks legislators – not the Legislature — to cherish education.

“This resolution makes clear we the House and Senate find the lines of separation have been crossed,” Hill said. “Most importantly, the current ConVal decision doubled down on crossing the lines of separation of the branches.”

A Superior Court judge found in a lawsuit brought by ConVal and other school districts that the state is not fulfilling its duty to fund an adequate education for all of the state’s K-12 students. His ruling, which is on appeal at the state Supreme Court, is based on the high court’s Claremont decisions.

The proposed resolution does not reject the theory of judicial review nor that the legislature or executive branch can overrule court decisions they disagree with.

What it does do is affirm “that the power of judicial review is not the power to direct other branches to pass legislation,” Hill said.

The court had to use a great deal of mental gymnastics to take the word “cherish” in the government section of the constitution and turn it into a right under the first section, the Bill of Rights, he said. The constitution says to cherish literature, but there is no mention of equity, uniformity, adequacy or a financial duty, Hill said.

“I don’t see an end to this as every time a case comes before the court, the legislature does something to appease that decision,” Hill said. “I do not see ConVal being the end of all these cases. We are facing a never-ending supply of plaintiffs and defendants.”

Former Rep. Gregory Sorg of Easton filed a brief in the ConVal case for 27 Republican representatives and two senators asking the Supreme Court to overturn the Claremont decisions.

Tuesday, he said the court “crossed the Rubicon” with the Claremont decisions into the areas of policy and funding.

The Supreme Court in its decision has tried to guide the legislature into doing what it wants, making policy decisions while saying they are not doing that, Sorg said, but the only way to comply is through a broad-based tax.

New Hampshire does not cherish a broad-based tax, and the legislature has been between a rock and a hard place for the last 30 years, he said.

“The Claremont decision was a legislative act all gussied up to look like a judicial act,” Sorg said. “This will start the process of reigning in the judiciary.”

The issue has finally come home to roost with the ConVal decision, which if upheld, would require a massive tax increase of $500 million, he said: “The legislature can’t play around anymore.”

David Trumble of Weare told the committee the Supreme Court did not overstep its bounds as supporters have argued, noting they only read the first section of the separation of powers clause and that the rest of it describes how the three branches working together make all of them stronger.

The duty of the Supreme Court is to say what the law is and to enforce the constitution, he maintained.

“The Supreme Court did not overstep its bounds,” he said, “No – they laid the framework of the Legislature’s duty to provide an adequate education.”

The court showed considerable deference to the legislature and executive branch, Trumble said, although they had failed to live up to their duty.

“They did not make it up; it has been in force for 250 years,” he said. “If you ignore the court, what is to stop the executive branch from ignoring you?”

Zach Sheehan, executive director of the NH School Funding Fairness Project, told the committee that the ConVal ruling did not say to spend more money on education, but did say to shift $500 million of the cost to the state from local property taxes.

He noted New Hampshire pays 20 percent of the cost of public education, the lowest share of any state in the country, while local property taxes pay for 70 percent of the cost, the highest in the country by a “long shot.”

While the legislature has pushed back against the court’s rulings, Sheehan said, to date lawmakers have not passed a budget or policy that moves toward the Claremont ruling.

“That is why you continue to have lawsuits,” he said. “The court is clear what your role is here in this debate.”

Kaitlin Bernier of Merrimack said that at their school meeting the night before, there was a different atmosphere, as the large crowd clapped when speakers mentioned the state’s role in property tax increases.

Given the actual cost of providing public education in 2025, it is unfortunate how little the state contributes to future generations, she said.

“You spend money on the select few who use EFAs (Education Freedom Accounts),” Bernier said, “but not on the majority that use public schools that have the tax burden.” 

When someone said the state needs to be held accountable, the room broke out in applause, she said.

“The next generation needs more than your excuses,” Bernier told the committee.

The House electronic system for filing testimony and support or opposition to bills showed 451 opposed to the bill and 19 in favor.

A concurrent resolution has the weight of law during the term it is passed if both the House and Senate approve it, but not beyond that.

Garry Rayno may be reached at garry.rayno@yahoo.com.