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A Claremont Reader T VÄtÜxÅÉÇà extwxÜ A Compilation of Essays Demonstrating the Constitutional and Policy Deficiencies of the Claremont Series of Public School Funding Decisions 1993 - 2006 Foreword, Article Introductions, and Epilogue by ZÜxzÉÜç `A fÉÜz Attorney at Law and Member of the House Representing Grafton District 3 FOREWARD It is the purpose of this collection of writings to demonstrate both the utter lack of constitutional legitimacy of the Claremont series of public school funding decisions and the right and imperative constitutional duty of the Legislature to repudiate them. The central majoritarian, representative organizational principles of the constitutions of those governments, including that of the State of New Hampshire, that were patterned after the British model, contain a glaring anomaly: the judiciary, which is not elected but appointed by the executive, to serve not for a short period but “during good behavior.” The principle of judicial independence enshrined in this constitutional arrangement orig- inated in the British Act of Settlement of 1689 as a typically practical British response to the experience of the constitutional struggles of the Seventeenth Century, in which Parlia- ment was always at a disadvantage in legal controversies against a King who not only ap- pointed all the judges, but could remove them at will. Being exempted from periodic accountability to any other person, group, or entity, courts are enabled to render judg- ments strictly on the merits of the cases brought before them, free of political pressure. The benefit to the judiciary of this constitutional quid pro quo carries, however, a countervailing burden: the judicial branch must refrain from involvement in politics, and it must be candid in its opinions. The writings in this collection will show how, in the Claremont series of cases, the New Hampshire Supreme Court has failed abysmally in the performance of its share of the constitutional settlement. In the tradition of Aesop and Jesus, this collection begins with a parable, in the form of Hans Christian Andersen’s The Emperor’s New Clothes, in order to illustrate with a simple story the larger picture that might otherwise be obscure. The succeeding Section II contains essays that show the social and political landscape existing prior to the first Claremont decision in 1993. Section III consists of the verbatim texts of the primary school funding decisions that changed this landscape. Section IV contains a sampling of the writings of deniers of the virtual palace coup the Claremont decisions have accomplished. Section V contains all fifteen numbers of attorney Eugene Van Loan’s towering 1998 critique of the process by which the New Hampshire Supreme Court, under the protection and cover of judicial independence, has constituted itself the enemy of constitutional government by its chronic, pervasive abuse of its solemn adjudicatory function. Section VI contains a sampling of the best of the published essays that followed attorney Van Loan’s pioneering exposé. Section VII is my own deconstruction of the myths that have contributed to the general preemptive surrender of the people and their elected representatives to the pretensions of the Supreme Court. It is not expected that the user will read this collection straight through, but rather that it will serve as a reference tool and educational aid in addressing the school funding issue and its implications for the future of representative government in New Hampshire. Gregory M. Sorg January 25, 2007 - i - TABLE OF CONTENTS THE ANALOGY Hans Christian Andersen, The Emperor’s New Clothes................................................. 1 THE EMPIRE Hobart Pillsbury, New Hampshire: Resources, Attractions and Its People, A History (New York, Lewis Historical Publicshing Co., Inc., 1927), Chapter XLI, Education ... 5 Richard M. Lambert, The “Ten Pound Act” Cases and the Origins of Judicial Review in New Hampshire (New Hampshire Bar Journal, March 2002, pp 37-54) ................. 27 Richard B. McNamara, The Separation of Powers Principle and the Role of the Courts in New Hampshire (New Hampshire Bar Journal, June 2001, pages 66-87)..................... 61 Richard F. Upton, The Independence of the Judiciary in New Hampshire (New Hampshire Bar Journal, July 1959)............................................................................... 99 Timothy A. Lawrie, Interpretation and Authority: Separation of Powers and the Judiciary’s Battle for Independence in New Hampshire, 1786-1818 (New Hampshire Bar Journal, Winter 2006, pp 34-46) .......................................................................... 109 Merrill v. Sherburne, 1 NH 199; 8 Am. Dec. 52 (1818) ............................................ 131 Edward Damon and Apiar Saunders, Courts, Class Actions, and Children [Claremont v. Gregg] (New Hampshire Bar Journal, March 1993, pp 67-69, 72-73)................... 145 THE SWINDLERS Claremont School District et al v. Governor [“Claremont I”], 138 N.H. 183; 635 A.2d 1375 (1993)................................................................................................................. 149 Claremont School District et al v. Governor [“Claremont II”], 142 N.H. 462; 703 A.2d 1353 (1997)................................................................................................................. 157 Londonderry School District SAU #12 et al v. State of New Hampshire, 153 N.H. ___; 907 A.2d 988 (2006)................................................................................................... 171 THE COUNCILORS AND MINISTERS William F. Batchelder, The Independence of the Judiciary in New Hampshire Revisited (New Hampshire Bar Journal, June 1998, pp 62-70) ................................................. 187 Richard Hesse, The Legislature, the Court and the Constitution (New Hampshire Bar Journal, March 2000, pp 38- 45)................................................................................. 201 THE LITTLE CHILD Eugene Van Loan III, Letters to the Educators.......................................................... 215 (1) To Debate or Not to Debate .............................................................................. 217 (2) What the Constitution Actually Says ................................................................. 221 (3) How Does a Court Decide What is Adequate? ................................................. 227 (4) Not All Duties Create Rights............................................................................. 233 (5) A Constitution Is Not A Menu of Entitlements .................................................. 237 - ii - (6) Entitlements Created by the "Least Dangerous Branch" are the Most Dangerous Ones ........................................................................................................................ 241 (7) Who Is To Guard The Guardians?.................................................................... 249 (8) Making The Case For Candor .......................................................................... 257 (9) Is Education Too Important To Be Entrusted To The Politicians?................... 269 (10) Is There An Adequate Definition of An Adequate Education?........................ 279 (11) What Was The Original Understanding?........................................................ 287 (12) If There Are Education Rights, Whose Rights Are They? ............................... 299 (13) A Court Out Of Control................................................................................... 307 (14) If There Is No Remedy, Is There Any Right?................................................... 333 (15) Res Ipsa Loquitur ............................................................................................ 371 THE PEOPLE Walter A. Backofen, Claremont’s Achilles’ Heel: The Unrecognized Mandatory School-Tax Law of 1789 (New Hampshire Bar Journal, March 2002, pp 26-29) ...... 377 Eugene M. Van Loan, Jr., Memorandum in Response to Requests from the Senate for an Opinion of the Justices (School Financing) (1998)............................................... 385 Frederick M. Hess, When Unaccountable Courts Meet Dysfunctional Schools (Education Fairy Tales, July/August 2006, American Enterprise Institute) .............. 399 Edward C. Mosca, New Hampshire’s Claremont Case and the Separation of Powers (From Pierce Law Review, June 2006, pp 409-434) .................................................. 405 EPILOGUE Gregory M. Sorg, Demystifying the Judiciary............................................................ 429 - iii - Since December, 1993, the people of New Hampshire, through the Claremont series of school funding cases, have been participating in a performance of “The Emperor’s New Clothes” that never ends. At the conclusion of the original, the people overcome their fear of appearing foolish in the eyes of their “betters,” and are at last willing to believe the evidence of their own senses once it has been confirmed by one of the least of their own, and to recognize the perfidy of the swindlers. In the real-life contemporary performance, however, the people, evidently fearful of exposure as “unfit for office or unforgivably stupid,” continue to cower in their timorous apathy and blindly accept the outlandish pronouncements of the swindlers. Hans Christian Andersen: The Emperor’s New Clothes Many, many years ago there was an emperor who was so terribly fond of beautiful new clothes that he spent all his money on his attire. He did not care about his soldiers,
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