In one of our previous Letters, we discussed the proposition that not all duties create rights. The context for that discussion was the Court's comment in Claremont I that, "Having identified that a duty exists and having suggested the nature of that duty, we emphasize the corresponding right of the citizens to its enforcement." Assuming, however, that duties generally do create rights - or, more particularly, that the specific duty to cherish education creates a corresponding right to its enforcement - that merely begs the question. If there is a duty, to whom is the duty owed; if there is a right, whose right is it?

As a general proposition, only those parties who are within the class of persons who were intended to be benefited by a law are entitled to assert a claim for judicial enforcement of that law. This concept frequently comes into play in civil and criminal cases where one party is attempting to base a claim or a defense upon a statute. For the party to be entitled to proceed with his claim, "the right/duty that the statute mandates must be intended to protect the [party] or class of which he is a member." For example, in a recent case of Fish v. Homestead Woolen Mills, Inc., a swimmer who got hurt when he dove into shallow water created by a faulty dam sued the dam owner for failure to comply with a statute which set standards for dam maintenance. The Court said that whether or not the plaintiff had a cause of action under the statute depended upon the purpose of the dam statute, i.e., was it intended to create swimming holes in order to protect swimmers or was it intended to prevent floods in order to protect the owners of riparian land?

This same principle applies in constitutional cases. For example, in the 1882 case of Wooster v. Plymouth, the Town of Plymouth claimed that it was entitled to demand a jury trial in a suit by a person who claimed to have been injured on one of its highways. The town's claim was based upon the seemingly clear words of Article 20, Part I, of the Constitution which provides that, in all civil cases, "the parties have a right to a trial by jury." The Court, however, phrased the issue as follows: "Historically and constitutionally, jury trial is a remedial protection of substantive rights. But of whose and what rights, and against whom, is it a protection?" After examining the history of trial by jury and the background of the jury trial provision in our Constitution, the Court concluded that, "It was universally understood by the founders of our institutions that jury trial, and other usual provisions of bills of rights, were not grants of rights to the public body politic, but reservations of private rights of the subject." Accordingly, the Court remanded the case back to the lower court for a trial - without a jury.

The Wooster case is an example of a situation where the Court determined that the only intended beneficiaries of a constitutional provision were the State's citizens, as opposed to the State itself. One of the reasons for the Court's conclusion was its observation that the right of trial by jury has historically been viewed as a device by which the citizens could protect themselves against there governments. It is a mistake, however, to think that all constitutional provisions are the same as the one guaranteeing the right to a jury trial. Written constitutions do many things besides guaranteeing the right of the people against governmental infringement. Constitutions also grant (and withhold) powers from the people to Government; they allocate powers among the institutions of Government; they prescribe the rules of procedure for each branch; they specify the qualifications for the officials of government; and they provide mechanisms for the people to make changes in the identity of their governors or the form of their government.

Accordingly, not all "duties" prescribed by a constitution are duties owed by Government to its people. Likewise, not all "rights" given recognition in a constitution are rights which necessarily belong to the State's citizens. For example, the Constitution may well impose a "duty" upon a government institution, the function of which is to preserve, protect and facilitate the operation of that institution. It is not the function of such duties to create rights in others which are then enforceable against that institution itself. Consequently, if such a duty creates a corresponding right, the right belongs to the institution, not to you and me.

An example of this type of duty appears in Article 35, Part II, of the Constitution which provides that, "The senate shall be the final judges of the elections, returns and qualifications, of their own members." In the case of Brown v. Lamprey, several persons claimed to have been elected to the State Senate. The Senate, however, refused to seat them on the grounds that they had not been residents of their senatorial districts for the requisite period prescribed by the constitution; instead, the Senate seated the candidates from those districts who had received the second highest number of votes. The Court refused to get involved in the dispute because "[W]e have no authority to approve or disapprove the action thus taken by the Senate. For this court to interfere would be a usurpation of the authority of the Senate granted to it by the Constitution." In other words, even though the Constitution imposed a duty upon the Senate to judge its own elections (the Senate "shall" be the judges), this created no right in the voters or in the candidates running for office to seek enforcement of that duty in the courts. Or, to put it another way, the intended beneficiary of the duty was the Senate itself, not the people.

The Legislature is not the only branch of government to which the Constitution has assigned areas of exclusive responsibility for the purpose giving it the means of self-preservation. The executive branch is the recipient of several similar grants of authority. For example, Articles 46 & 47, Part II, of the Constitution prescribe the specific manner by which the Governor and Council nominate and appoint, respectively, certain executive officers. In a number of Opinions of the Justices, the Court has affirmed that these "duties" do not grant "rights" to putative officeholders or to the general citizenry which may be enforced against the Governor and Council in a court of law.

Finally, the Court itself possesses exclusive spheres of influence which may not, in turn, be invaded by its co-equal branches. Indeed, it would not be unfair to say that the Court's most ardent defenses of the notion that the institutions of Government have a legitimate interest in protecting their own integrity have come in those cases in which the Court has safeguarded its own turf.[fn 1] For example, in an Opinion of the Justices issued in 1933, the Court ruled that it would be unconstitutional for the Legislature to place a monetary cap on judicially-imposed fines for contempt of court. According to the Court, the power to punish violators of its own orders is an inherent power of any court which is necessary for its "essential operations" and, therefore, cannot be taken away without destroying the very institution itself:

The constitution confers upon the legislature "full power and authority to erect and constitute judicatories and courts." Const. Pt. II, art. 4. The question now presented is whether this grant of power is broad enough to authorize the legislature to take from the judicial department of the government a power which has always, both here and elsewhere, been recognized as an essential attribute of judicial tribunals. We are of the opinion that it does not confer such power. The existence of the judiciary as one of the three essential parts of government is declared in terms. It is "to be kept as separate from, and independent of" the legislature "as the nature of a free government will admit." Const. Pt. I, art. 37. If one of the essential attributes might be taken away from the judiciary, so might many or all of them; and our courts might be directed to proceed in accordance with regulations at variance with all known ideas of the functions of a court. The constitution creates no such supremacy of the legislative department over the judicial.

Although we have previously suggested that the Encouragement of Literature Clause, like a number of similar provisions in our Constitution, was not directed to any institution, but was instead addressed to the individual officers of Government - including judges - the Court in Claremont says that this is not so. Let us assume for purposes of argument that the Court is correct and that Article 83 imposed the duty to cherish education upon the Legislature and the Governor in their corporate, institutional capacities. As we all know, the Court went on to hold that the duty prescribed by Article 83, in turn, creates a right to a so-called constitutionally adequate public education. the question then becomes: for whose benefit were the Governor and the Legislature charged with this duty to cherish education? Alternatively, if this duty creates education rights, whose rights are they?

The Court's answer in Claremont I was as follows: "The right to an adequate education mandated by the constitution is not based on the needs of a particular individual, but rather is a right held by the public to enforce the State's duty." The historical evidence and the Court's own precedents, however, do not support the Court's contention. What they do demonstrate is that the purpose of Article 83 was to affirm the significance of education as a prerequisite for an effective democracy. As the Constitution states in several places, legitimate government is founded upon the "consent of the people". See Articles 1, 8, 12 & 28, Part I. The Framers, however, did not believe that democracy alone led to good government. They believed that an educated people was - as Article 83 itself states - "essential to the preservation of a free government." The purpose of Article 83, therefore, was to encourage the creation of an educated citizenry who would make wise choices in their selection of representatives who, in turn, would make wise choices in their selection of public policies. In this way, the institutions of government themselves could most effectively satisfy the obligation imposed upon them by Article 31, Part I, of "making such laws as the public good may require."

The Court expressly acknowledged that this was the purpose of Article 83 in the 1912 case of Fogg v. Board of Education of Littleton. That case involved the claim by parents of a nine year old boy who had to walk four miles to get to the nearest school that he had a right to be transported to school at public expense. Although the Court found that he did have such a right under a State statute, its discussion of the constitutional issue is diametrically opposed to the rationale of the Claremont decisions:

The primary purpose of the maintenance of the common-school system is the promotion of the general intelligence of the people constituting the body politic and thereby to increase the usefulness and efficiency of the citizens, upon which the government of society depends. Free schooling furnished by the state is not so much a right granted to pupils as a duty imposed upon them for the public good. If they do not voluntarily attend the schools provided for them, they may be compelled to do so. P.S., c.93. s.6 State v. Hall, 74 N.H. 61; State v. Jackson, 71 N.H. 552. While most people regard the public schools as the means of great personal advantage to the pupils, the fact is too often overlooked that they are governmental means of protecting the state from the consequences of an ignorant and incompetent citizenship. "Knowledge and learning generally diffused through a community being essential to the preservation of a free government, and spreading the opportunities and advantages of education through the various parts of the country being highly conducive to promote this end, it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools." Const., art. 82 [83]. In accordance with this injunction, the state has always maintained for its protection and at great expense a common-school system which long ago became one of the most important governmental agencies.

At no point in either of its Claremont decisions does the Court seek to overrule or, distinguish this language in the Fogg case. [fn 3] The Court's recitation in Claremont I of the importance of public education in colonial and post-Revolutionary times does nothing to contradict Fogg. No one disputes the importance of education - then or now. Fogg itself acknowledges that education "long ago became one of the most important governmental agencies." The question is not whether education is important. It is why it is important. And this, in turn, leads us to the real question about education which the Claremont case posed, the separation of powers question. In short, if providing education was a duty entrusted by the Constitution to the legislative and/or executive branches, did the Framers (or anyone else in that last 200 years) contemplate that the courts would be telling the other two branches how to do their jobs.

In its much more extensive review of the contemporaneous literature on the importance of education to the Framers, the decision of the Supreme Judicial Court of Massachusetts in the McDuffy case had quoted from the writing of John Adams in which he extolled the value of education. It is interesting to note that even though our Court in Claremont I relied upon and quoted liberally from the McDuffy opinion because it interpreted the Encouragement of Literature provision of the Massachusetts constitution from which our Article 83 was drawn, our Court did not focus upon the fact that the reputed author of the provision was John Adams.

It is fortunate for the deceased Mr. Adams - who probably is still rolling over in his grave after the Massachusetts court gave him credit for its McDuffy decision - that our Court did not ascribe its Claremont decisions to him. For in addition to being such an advocate of education, John Adams also had a few pertinent things to say about the doctrine of separation of powers. Besides the fact that he was apparently the one who coined the phrase "a government of laws, not men" (which also appears in the Massachusetts constitution), he had this to say about the unchecked concentrations of political power:

The fundamental article of my political creed is that despotism, or unlimited sovereignty, or absolute power, is the same in the majority of a popular assembly, an aristocratical council, an oligarchical junto, and a single emperor.

But perhaps we are jumping ahead of ourselves. Let us return to our discussions within the same framework of analysis that the Court used in Claremont: first we have duties; then we have rights; and, finally, we have paries to whom those rights belong. Fogg said they belong to the State. Claremont says they belong to the public.

On the other hand, even if we assume that Article 83's duty to cherish education was intended to benefit the public, that doesn't necessarily get educational issues into the courtroom. It is the Court's next proposition which accomplishes this task. After stating that the rights supposedly created by Article 83 belong to the public, the Court went on to assert that "any citizen has standing to enforce this right". Yet this proposition is quite contrary to the Court's jurisprudence in other areas. For example, the Court has held in a number of cases that, "to sustain the liability against a municipality or its servants, the duty breached must be more than a duty owing to the general public."

This principle is known as the public duty rule, which holds that a State official may not be sued for a violation of a duty which is owed to the public in general. For example, in the 1984 case of Hartman v. Town of Hooksett, the court refused to allow a party who had been injured on account of a frostheave in a State highway to sue the Town of Hooksett for the failure of its police officers to warn travelers of defective conditions in the pubic ways of which the officers had or should have had knowledge. The plaintiff's theory of liability was that the police officers had breached a statutory duty "to act as conservators of the peace". The Court, however, declined to allow recovery under such a theory, ruling that more than just a public duty must be involved and that "there must exist a special relationship between the municipality and the plaintiff, resulting in the creation of a duty to use due care for the benefit of particular persons or classes of persons."

I acknowledge that the public duty rule is a creation of tort law, not constitutional law, and that its function is to set limits upon the occasions when an injured party may collect damages form a public official. Nevertheless, the notion that the breach of a duty owed to the public in general is not actionable in a court is instructive on the constitutional issues presented by the Claremont case. The point is that if - as the Court says - this creates a right "held by the public", there was good reason for the Court to have held that the right was only enforcible at the ballot box and not in a courtroom.

One of the current problems created by Claremont's notion that any private citizen can enforce the public's supposed right to an adequate education is that we are all now at the mercy of any self-appointed protector of this public right who purports to speak in our behalf. In fact, some of the lawyers for the Claremont plaintiffs have been proclaiming that they are so-called "private attorney-general" who are authorized to enforce the public's rights against Government without your and my permission - and apparently even without the permission of their own clients. This should remind one of laws which purport to give rights to snail darters and spotted owls. In any case, the point is that in a democracy, no one is entitled to speak for the citizens without their consent and none of us have consented to have the Claremont plaintiffs or their lawyers speak for us about whether or not the Legislature is performing its public duties. We are perfectly capable - thank you very much - of speaking for ourselves. [fn 4]

[footnote 1] In fact, there is even a school of thought that the Court's power of judicial review was intended for no other purpose than to protect the Court's own jurisdiction, i.e., that it was a defensive weapon only. Adherents of this position include prominent historians Louis B. Boudin and William W. Crosskey. There is clear support for this on the Federal level. For example, James Madison, one of the advocates among the Framers of the Court's power to declare laws unconstitutional, apparently contemplate that it would especially be exercised in cases "of a Judiciary Nature." In New Hampshire, the concept obtains some credibility from the fact that the seminal case establishing our Court's power of judicial review, the 1818 Merrill v. Sherburne, involved a legislative encroachment upon the prerogatives of the Judiciary (i.e., passage of a statute which purported to grant a litigant who had lost in court a new trial).

[footnote 2] By the same token, the Court acknowledged in this Opinion that, "the authority to punish contempt is [also] a necessary incident, inherent in the very organization of all Legislative bodies". Presumably, therefore, this was an acknowledgment that if the shoe had been on the other foot, the Court would have ruled that the Legislature's power of contempt is immune from judicial interference.

[footnote 3] On the contrary, in what can only be described as a display of judicial hutzpah, the Court in Claremont I actually cited Fogg in support of its holding that the Constitution establishes a right to education by every citizen in the courts.

[footnote 4] Moreover, you should know that the claim of the plaintiffs and/or their lawyers in the Claremont case that they are entitled to act as "private attorney-general" is simply a misapplication of the concept to the current controversy. This is a doctrine which was created to justify the claims of private parties against other private parties in furtherance of a governmental policy. For example, the federal antitrust laws prohibit unreasonable restraints of trade and authorize private parties to sue other private parties to enforce this public policy. However, the doctrine does not contemplate that the so-called private attorney general could bring a claim against the Government itself. This is eminently clear in New Hampshire where, by virtue of the Constitution itself (Article 41, Part II), the Governor - and, therefore, even the real Attorney General - "shall not...[bring] any action or proceeding against the legislative or judicial branches ... to restrain violation of any constitutional or legislative power, duty, or right, by any officer, department or agency of the state."

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