New Hampshire Politics: Letters To Educators #14

LETTERS TO THE EDUCATORS, NO. 14

If There Is No Remedy, Is There Any Right?

Part I - Introduction

The essential question that we have tried to answer in our previous Letters can be summarized as follows: in our tripartite system of government, what issues are properly resolvable by the courts and what issues are best left to determination by our political institutions - and into which category does the issue of education fit? Up to this point, our answers have mostly been consumed with discussions of rights and duties. What is a duty? When is a duty mandatory? Whose duty is it to cherish education? Do all duties create rights? Do all rights create entitlements? Is there a right to an adequate education? How can one know adequacy when one sees it? If there are educational rights, whose rights are they?

Perhaps, however, there is another way of looking at this problem. In one of our early Letters, we noted that one of the links in the Supreme Court's chain of reasoning in its Claremont decisions was the notion that where there is a right, there must also be a remedy. Assuming this is true, is the inverse of the proposition also true? In other words, where there is no remedy, is there also no right?

In American constitutional jurisprudence, the all-rights-imply-remedies principle dates back to the famous decision of U.S. Supreme Court Chief Justice John Marshall in the 1803 case of Marbury v. Madison, which we discussed in one of our earlier Letters. The case is best known for Justice Marshall's assertion of the Court's power of judicial review, i.e., the Judiciary's power to review the constitutionality of the acts of the political branches. As applied to the facts of the case, the Court ruled that incoming President Jefferson had acted without constitutional authority in withholding from the plaintiff, Mr. Marbury, his appointment as a justice of the peace, the commission for which had been signed but not delivered by lameduck President John Adams.

Having concluded that Mr. Marbury had been deprived of his right to his commission, Justice Marshall phrased the next issue confronting the Court as follows: "If he has a right, and that right has been violated, do the laws of this country afford him a remedy?" Although less well-known than his declaration of the doctrine of judicial review, Marshall's answer to his rhetorical question about remedies was equally as powerful an affirmation of the Judiciary's authority:

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

Take note that when Justice Marshall spoke of rights, he referred to "legal rights". Similarly, when he said that there must be a remedy for legal rights, he referred to a remedy furnished by "the laws". The true statement of Justice Marshall's principle, therefore, is that where there is a legal right, there must be a legal remedy.

This refinement of the principle is especially significant for the issues of institutional power and competence with which we have been dealing because the agency whose function it is to deal with legal rights and remedies is obviously the Court. One way, therefore, to further clarify Justice Marshall's principle is to say that where there is a judicially-determined right, there must be a judicially-enforceable remedy.[fn 1] This, in turn, brings us to the final statement of our inverse principle: where there is no judicial remedy, there is no justiciable right.

Our first question, then, is whether either version of this rights-remedies principle, the positive version or the negative version, has any currency in our New Hampshire jurisprudence. At least as far as the positive version is concerned, the answer to the question is clearly in the affirmative. For example, in the interpretation of statutes, the Court has frequently said such things as "the existence of a statutory right implies the existence of all necessary and appropriate remedies." Likewise, the Court has on occasion recited as a general proposition of law the maxim of the English courts of equity that "equity will not suffer a wrong without a remedy." And, finally, as Chief Justice Doe put it most expansively in the 1890 case of Attorney-General v. Taggart, "as our common law furnishes all writs necessary for the furtherance of justice and the due administration of the laws, there can be no legal right without a remedy."

In fact, the concept that the existence of legal rights implies the existence of legal remedies is expressly memorialized in our Constitution. In this regard, Article 14, Part I, reads as if it came right out of Marbury v. Madison:

Every subject in this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.[fn 2]

Although not similarly incorporated into its own provision of the Constitution, the negative version of the rights-remedies proposition is just as much a part of our jurisprudence as is the positive version. As is exemplified by the doctrine of sovereign immunity (which we shall discuss shortly), because there is no available judicial remedy in a case brought against the State where the State has not consented to be sued, the parties to such a suit are generally not permitted to litigate whether or not anyone's rights are at issue or whether or not they were violated. Indeed, it is frequently the case in the law that the appropriateness of and/or the availability of a remedy dictates whether or not the Court will recognize a right.

Perhaps this is because the law does not favor exercises in futility which, if nothing else, waste precious judicial resources. However, a more basic reason that remediless cases are usually dismissed by courts without any decision on the merits is that they don't need to be decided. If a judge cannot grant a claimant any relief, his involvement in the dispute is voluntary and inconsistent with his role as an impartial umpire. Accordingly, as we discussed in our last Letter, if the case is remediless, the doctrine of judicial restraint counsels the court to preserve its neutrality and abstain from deciding the case.

A judge who fails to heed such advice not only becomes a partisan, but he also becomes a toothless partisan. If a judge cannot grant a remedy, his decision is nothing more than an expression of his opinion. Moreover, if a judge's decision were nothing more than an expression of his opinion, it is presumably no better than anyone else's opinion. And, finally, if a judge's opinion is like everyone else's opinion, it can be followed - but it can also be ignored. In the long run, therefore, allowing judges to declare which party to a dispute is right and which one is wrong, without affording any remedy to the party in the right, raises doubts about the very legitimacy of the Judiciary and, ultimately, jeopardizes its ability to enforce its decrees. Again, therefore, judicial restraint suggests that where there is no available remedy, a court should not concern itself with whether or not there is a right.

Part II - Advisory Opinions

On the other hand, the question of whether or not a court should express its opinion in a case in which it cannot grant a remedy is not simply a matter of judicial restraint; it is also a matter of constitutional authority. Because they liberate courts from the consequences of their decisions, remediless cases are abstract cases. Accordingly, they tend to produce academic dissertations on social theory, which often result in utopian solutions to intractable real-world problems. But a court is not a forum for philosophical disputations. It is not a court's function to decide how many angels can stand on the head of a pin. A court's job is to decide real cases; involving real people; with real problems; who want real solutions.

When a court ventures its opinion outside the context of a concrete case or controversy, it is no longer exercising the "judicial power". Instead, it is engaging in the practice of issuing an "advisory opinion", something which is generally forbidden to courts in New Hampshire (and elsewhere). For example, a court may not render an opinion in a hypothetical case. The hypothetical case is a "what if" case. The "what if" could take the form of make-believe parties positing real facts [fn 3] or real parties positing make-believe facts.[fn 4] In either instance, the issues raised in a hypothetical case lack the urgency and definition of a genuine case or controversy.

The reason that the hypothetical case is not justiciable is that the parties to such a case are not asking for a decision; they are simply seeking advice. The 1965 case of State v. Harvey is a perfect example of just such a case. The defendant, an anti-war activist, had been charged with violation of an ordinance prohibiting the distribution of handbills. The charges, however, were nol prossed by the county attorney who decided that the ordinance would be unconstitutional if applied to the defendant, whose handbills contained anti-war messages. Not satisfied with this result, the defendant appealed to the Supreme Court for a judicial declaration of the ordinance's unconstitutionality, which would be binding upon all other prosecutors who might try to enforce it in identical or similar situations. The Court held that since "the State now makes no claim of any rights adverse to those asserted by the defendant," there was nothing for the Court to decide and it dismissed the case without ruling upon the defendant's claims. In short, the issues posed by the defendant were purely hypothetical and, therefore, if the Court were to decide the case, it would be issuing an advisory opinion.

Remediless cases are very much like hypothetical cases. Since, by definition, the court in a remediless case cannot order anyone to do anything, its decision is the functional equivalent of a suggestion that the parties do something. This, of course, is just another way of saying that an opinion in a remediless case is indeed an advisory opinion.

Our Court has on numerous occasions held that it has no constitutional authority to decide remediless cases. To begin with, such cases often raise due process concerns because the level of abstraction that is inherent in a remediless case often implicates the interests of persons who are not parties to the litigation. This problem is reflected in the Court's refusal to rule upon a request by one party for an adjudication of his legal rights vis-a-vis some other party who has not been notified of the case and who has not been given an opportunity to respond to the claims. For example, in the 1952 case of Petition of Turner, the Court declined to answer questions submitted to it by the State Tax Commission regarding its power to grant a taxpayer's request that the Commission make a certain redistribution of tax revenues from the City of Keene to the Town of Sullivan. The reason for the Court's refusal to act was that the City of Keene had not been joined as a party and, therefore, regardless of the Court's answer to the Commission's questions, the Commission could grant no remedy to the taxpayer which could bind the City. As the Court said, "Since it appears to us that any determination of the question transferred ... would be advisory only, we must respectfully decline to make it."

Remediless cases also tend to involve disputes which may never materialize. Even where all of the potentially interested parties have been notified of a claim, the Court has generally insisted that the case be "ripe" for determination. In this regard, the Court usually requires that some type of injury has been suffered before it will assume jurisdiction over the case. For example, in the 1904 case of Harvey v. Harvey, the Court ruled that it had no power to determine the rights of litigants absent a claim by one party against the other that a wrong had been committed; it was insufficient that a wrong had been threatened, but not accomplished.

It is true that the Court has since backed off from this hard line on the ripeness issue. This was due to the Legislature's passage in 1929 of the so-called declaratory judgment act - which allows parties to sue for a declaration of their rights or title when some other party is merely "claiming adversely to such right or title." In the 1931 case of Faulkner v. Keene, the Court upheld the statute's constitutionality and agreed to accept jurisdiction over actions in which injuries had not yet occurred, but in which they were threatened or were otherwise likely to occur. Nevertheless, implicit in the Court's acceptance of the jurisdiction to issue declaratory judgments was the notion that the only thing affected by the statute was timing. As the Court stated in the Faulkner decision, "What [the Constitution] does forbid is a failure to give all interested parties notice and an opportunity to be heard before any decree affecting their rights is made. Beyond this there is no constitutional limitation upon the stage of the controversy at which the courts may be appealed to by the contending parties." In other words, although the statute allowed one party to bring suit against another before the other had caused the plaintiff any injury, the case would still have to be one in which the Court could have awarded a remedy to the plaintiff if he had waited until he actually was injured. [fn 5]

Thus, the declaratory judgment has become a regular part of our legal landscape. Indeed, the law of New Hampshire provides numerous examples of cases in which legal rights can be fixed by the courts in advance of a wrong being committed. For example, a party who claims an interest in land may bring a petition to quiet his title to the premises. A trustee of a trust may bring an action wherein the trustee requests instructions from the court as to how the terms of the trust should be construed. A liability insurer may bring an action for purposes of having a court decide whether or not the terms of the insurance policy require the insurer to defend the insured in some pending legal action. In each of these situations, the reason for allowing the court to grant a declaratory judgment is to prevent the violation of some party's legal rights which might otherwise occur, thereby obviating the necessity for the Court ever having to issue a remedy for the violation. In none of the cases, however, is there any question as to the court's power to grant a remedy to the injured party if the parties were to wait until a violation of rights actually occurred. [fn 6]

On the other hand, when the Court has been presented with a case in which it possessed no power to provide a successful litigant with a remedy, it has generally held that issuing a declaratory judgment would constitute the rendering of a prohibited advisory opinion. For example, in the 1969 case of Piper v. Meredith, a resident of the Town of Meredith attempted to have the Court enjoin the town from conducting a special town meeting to pass an ordinance setting limits on the height of buildings. The plaintiff claimed that such an ordinance would be invalid under State law. Although the trial court had denied the injunction, it had also volunteered its opinion that, if the contemplated ordinance were passed, it would be invalid. On appeal, the Supreme Court held that the trial court "properly denied the injunction as it had no power to interfere with proposed legislative action." More importantly, the Court went on to hold that since "the Superior Court has no jurisdiction to give advisory opinions, ... the additional statement of opinion on the proposed action of the town meeting was beyond its jurisdiction." In other words, where it could not have provided a remedy, the trial court should not have got involved with determining whether there was a right. [fn 7]

Although the above quotes from the Piper case are illustrative of our no-remedy- no-rights principle, they also alert us to a wrinkle in the prohibition upon advisory opinions. Note that the Supreme Court stated that the Superior Court had "noD"" jurisdiction to issue advisory opinions. When it comes to the Supreme Court itself, however, you will generally find that the Court expresses itself a little differently. For example, it is typical for the Supreme Court to say that "advisory opinions cannot be given by this court on the petition of private individuals." The reason for the difference is that the Supreme Court does in fact have authority under the Constitution to issue advisory opinions in one very distinct and limited category of cases. In this regard, Article 74, Part II, of the Constitution provides as follows:

Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions.

In other words, in contrast to the general constitutional prohibition upon advisory opinions, Article 74 specifically requires the Court to render advisory opinions when so requested by a select group of public officials: the House of Representatives, the Senate, the Governor and the Council. [fn 8]

Fully aware of the inconsistency between the prescriptions of Article 74 and the general prohibition upon courts issuing advisory opinions, the Supreme Court has generally exercised a fair degree of judicial restraint in interpreting its own powers and responsibilities under Article 74. As the Court observed in the 1984 case of Petition of Public Service Co. of N.H., "Because such advisory opinions do not arise out of an adversary relationship between contending parties, we have strictly construed even the power to issue them and from time to time have denied advice to our coordinate branches of government." To begin with, the Court has limited its advisory role to responding to only those requests which involve a proposed action by a party entitled to request its opinion. The reasons for this are twofold. First, the rationale for Article 74 is that, prior to taking any contemplated action, the executive and/or the legislative branches of government ought to have access to authoritative legal counsel so that missteps may be avoided. On the other hand, if they have already taken action, the water is over the dam and any advice which the Court might offer concerning their past actions would serve no useful purpose. Secondly, accomplished acts by the political branches - such as the passage of a statute by the Legislature - create vested rights in private parties. Accordingly, if the Court were to respond to a request by the executive or the legislative branch for its opinion as to some past act which has already acquired the force of law, the rights and liabilities of unrepresented third parties would inevitably be affected. As the Court stated in a 1976 Opinion of the Justices, "It has been the long-established law of this State that the constitutional provision for advisory opinions ... does not permit the Supreme Court to advise the Legislature as to the meaning of existing statutes. Similar considerations prevent the Supreme Court from rendering advisory opinions on the constitutionality of existing laws as distinct from the constitutionality of proposed legislation." [fn 9]

As reflected in the foregoing quotation, even as to proposed legislation, the Court has limited itself to offering advice only as to the constitutionality of the proposal. In deference to the principle of separation of powers, the Court does not opine upon matters of policy or expediency. As the Court has so often said, "the wisdom of particular ... measures is for the legislature and not the courts to determine." Moreover, even if the question to the Court concerns a matter of constitutionality and even if it relates to an act which has yet to occur, similar separation of powers considerations have caused the Court to refrain from answering a question posed by a branch of government which is not the one contemplating the action. For example, in an 1875 Opinion of the Justices, the Court did not answer a question presented to it by the House of Representatives involving an action of the Governor and Council. As the Court put it, "[T]o offer the opinion of the court unasked, would obviously be an interference with the duties of the executive entirely unwarranted by the constitution." The Court's reluctance to issue advisory opinions except in situations where Article 74, Part II of the Constitution clearly requires it is the common theme running through all of these cases. Indeed, the Court is well aware of the fact that its Article 74 responsibility to issue advisory opinions does not constitute an exercise of the "judicial power". In this regard, the Court has frequently stated that, "In giving such opinions, the justices do not act as a court, but as the constitutional advisers of the body requiring their opinion." Indeed, as a consequence of this characteristic of an Article 74 advisory opinion, it is not binding upon either the government agencies which requested it or upon the Court itself. As the Court has noted, because an advisory opinion is "in no sense an adjudication of the question", the Court is free to change its mind when and if it confronts the issue in a genuine case or controversy. [fn 10]

The Court's squeamishness with respect to accepting the role of a constitutional advisor, as opposed to an adjudicator of cases, is well-founded. Although New Hampshire is not alone among the states in granting its Supreme Court a limited power to issue advisory opinions in response to requests therefor from the executive and/or legislative branches, this is clearly not the scheme at the federal level. Proposals to grant the US Supreme Court just such a power were made in the Philadelphia Convention, but they were rejected by the delegates and thus never made it into the Federal Constitution. [fn 11]

There was good reason for the architects of the new national union, on the one hand, to have rejected advisory opinions completely and for our own Court, on the other hand, to have construed its granted powers quite narrowly. For one thing, rendering an advisory opinion with respect to a piece of legislation which may or may not ever get passed is a classic case of answering a hypothetical question. As Felix Frankfurter wrote several years before he assumed his position on the US Supreme Court,

Legislation is largely empirical, based on probabilities, on hopes and fears and not on demonstration .... To submit legislative proposals rather than the deliberate enactments of the legislature to judicial judgment is to submit legislative doubts instead of legislative convictions. The whole focus of the judicial vision thereby becomes altered .... Experience has shown that ... advisory opinions are bound to move in an unreal atmosphere. In the attitude of court and counsel, in the availability of facts which underly litigation, there is a wide gulf between opinions in advance of legislation or executive action, and decisions in litigation after such proposals are embodied into law or carried into execution.

It is this same "unreal atmosphere" which militates against a court deciding a remediless case. Although a remediless case does not necessarily involve proposed legislation and, therefore, it does exist within a specific factual milieu, it is nevertheless like an advisory opinion in its quality of abstraction. Accordingly, like the request for an advisory opinion, it is likely to generate a decision which reads more like a tract in philosophy than a judicial opinion. As Justice Frankfurter stated in the same article quoted from above, "Every tendency to deal with constitutional questions abstractly, to formulate them in terms of barren legal questions, leads to dialectics, to sterile conclusions unrelated to actualities." This is why Claremont II, a remediless case, reads so much like Claremont IV, a true Article 74 advisory opinion.

The other thing that a remediless case like Claremont has in common with an Article 74 advisory opinion is its lack of finality. In the case of the remediless case, there is no finality because the Court issues no order to the parties and, thus, they can decide for themselves whether or not to change their behavior. Similarly, when the Court issues an advisory opinion concerning the constitutionality of proposed legislation, the Legislature can still elect whether to pass the bill as is or to modify it. More importantly, even if the Court assumes that the parties in both cases are more likely than not to comply with its edicts, the Court knows that its pronouncements will not have any material adverse consequences. In the remediless case, this is because the defendant is not charged with any penalty for his violation of the plaintiff's rights and in the advisory opinion case, it is because it involves something which is not yet a law and, therefore, no one has even acquired any rights which can be taken away.

Because the Court's decisions in these types of cases do not result in the same kinds of consequences which attend their decisions in genuine cases and controversies, the Court is tempted to cross over the line between determining the legality or illegality of the matters under consideration and expressing its opinion upon their wisdom and expediency. Accordingly, both the remediless case and the advisory opinion compound the problems of abstraction with considerations of separation of powers. Again, the admonitions of Justice Frankfurter are instructive:

[On the one hand,] advisory opinions involve the judges too intimately in the process of policy and thereby weaken confidence in the disinterestedness of their judicatory functions. On the other hand, advisory opinions weaken legislative and popular responsibility. It is not merely the right of the legislature to legislate and of the executive to act; it is their duty. Legislatures and executives may inform themselves as best they can; but the burden of decision ought not to be shifted to the tribunal whose task is the most delicate in our whole scheme of government, involving as it does the power to set limits to legislative and executive action within those vague bounds which are undefined and a priori undefinable.

The point is that the existence of our Court's limited authority to issue advisory opinions in the situations called for by Article 74 is not an argument for ceding the Court authority to decide a remediless case. On the contrary, the fact that Article 74 is so distinctly an exception to the normal rule is ample reason for the court to hold its ambitions in check whenever it is presented with an invitation to become involved in a case in which it can do nothing but give the parties the benefit of its advice. This, of course, is precisely the essence of the remediless case and, therefore, if one is brought before the Court, it should be rejected as being beyond its jurisdiction to decide. [fn 12]

In fact, an examination of several cases in which the Court has declined to issue an advisory opinion even when brought by a party entitled to submit a request under Article 74 reveals that the remediless case is always beyond its jurisdiction. Just as was the case with respect to our earlier discussion of the Court's power to issue declaratory judgments, it has been an implicit, but unstated, assumption of our discussion of the Court's responsibility to issue advisory opinions in Article 74 cases that if the same issue arose in the context of a genuine case or controversy, the Court could grant a remedy. In other words, so long as the matter under consideration by the Court was one over which the Court could exercise the full extent of its jurisdiction, as problematical as the hypothetical nature of an Article 74 case was, the Court's eventual power to issue a remedy was not at issue.

But what if a request for an advisory opinion involved an issue over which the Court had no remedial power even if the issue were presented to it in a genuine case or controversy? That was exactly the type of case which the Court faced in an 1875 Opinion of the Justices. In that case, the Senate submitted a request for an advisory opinion in which the Court was asked to determine whether or not two persons whom the Senate had already seated had in fact received the requisite number of votes to be elected. Noting that Article 35, Part II, of the Constitution made the Senate the "final judge" of the election of its members, the Court stated that, "We are of the opinion that from the action of the senate in this respect there can be no appeal." Moreover, said the Court, "If the framers of our organic law had intended that some court or other tribunal should have the power, by writ of quo warranto or mandamus, or other process, to reverse the action of the senate, they would have so expressed themselves, in language which could not be misunderstood." Since, therefore, the Court had no power to grant a remedy, it declined to answer the Senate's inquiry. In other words, even where the Court had the constitutional obligation to issue an advisory opinion, where there was no remedy, the Court would not decide whether or not there was a right. [fn 13]

Part III - The Confluence of Rights and Remedies

We have now encountered the Court's refusal to get involved in an election contest in both the context of a case and controversy and the context of a request for an advisory opinion. In an earlier Letter, we discussed the 1965 case of Brown v. Lamprey where the Court refused on account of Article 35, Part II, to intervene in behalf of an aggrieved voter; in the 1875 case discussed above, it refused to answer a question from the Senate itself. I have argued in both instances that one reason that the Court declined to act was because it would have been entering an area in which it had no remedial powers. On the other hand, it could be argued that the reason for the Court's reluctance to act was not because it had no power to grant a judicial remedy in an election contest; it was because the reference in Article 35, Part II, to the Senate being the "final judge" of the elections of its members meant that no one had a judicial right in an election contest.

These alternative approaches demonstrate the interrelationship between legal rights and legal remedies. The supposed distinction between them has bedeviled New Hampshire jurisprudence for years. It most frequently comes up in cases involving the prohibition in Article 23, Part I, of the Constitution upon retrospective laws where the Court, for better or for worse, has held that the provision is violated where a law adversely affects a party's vested rights, but it is not violated where the law only affects his remedies. Without going into any detail on this issue, I can assure you that the Court's efforts to parse a law into the right that it creates and the remedies it affords has been nothing short of metaphysical. As Justice Bellows wrote in his dissent to the 1859 case of Rich v. Flanders:

The cause of this conflict is to be found in the difficulty of defining the boundaries between rights and remedies. In fact, they run into each other with such irregular lines of approach, that the most eminent ability must despair of defining them.

In fact, we have already encountered several other instances where the impropriety of judicial review could be analyzed in terms of the absence of a legal right or the lack of a legal remedy. For example, we noted that one of the reasons that the requirement in Article 31, Part I, that the Legislature shall "assemble for the redress of public grievances and for making such laws as the public good may require" is non-justiciable is because the Court can provide no remedy for the Legislature's non-compliance with the Constitution's directive. On the other hand, we could just as easily say that Article 31 does not create any legal rights. In other words, if Article 31 is construed to recognize the people's "right" to have the Legislature redress their grievances and pass good laws, the right which it recognizes is a political one, not a legal one.

Another example of a constitutional right which is not justiciable because it is not enforceable by the Judiciary is the right of revolution. This is addressed in Article 10, Part I, of the Constitution as follows:

Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, the public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

On the other hand, as Chief Justice Doe wrote in his dissent to the 1874 case of Orr v. Quimby, "For exceptional reasons, applicable to the construction of article 10, the right of insurrection there declared is evidently a moral right, not reserved as a legal one." The point is that whether the "right" of revolution suffers from the unavailability of a remedy or the non-legality of its designation as a right, no court (at least no court north of the Mason-Dixon Line) would be open to a citizen who tried to exercise such a right.

In the same sense that some things such as the right of revolution are not justiciable both because they are not conceptualized as legal rights and because they do not contemplate judicial enforcement, there are other interests which clearly are justiciable both because they are recognized by the Constitution as legal rights and because they quite clearly do envisage a judicial remedy. These consist of the many trial rights which are specifically enumerated in the Constitution such as the right to trial by jury, the privilege against self-incrimination, the right to counsel, the right to confront one's accusers, etc. Since these rights involve what happens in the courtroom, they are unquestionably enforceable by the courts and no one would think of challenging the Court's jurisdiction to determine their nature and extent.

Once we get away from the Judiciary's obvious control over the enforcement of trial rights, however, it is technically true that the Court has no power to enforce any of its decrees. As Alexander Hamilton said in The Federalist, No. 79, the Judiciary "may truly be said to have neither FORCE nor WILL, but merely judgment". Accordingly, it "must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments". But this fact alone can surely not mean that all rights other than those which involve what happens in the courtroom are non-justiciable. Although that would be carrying where-there-is - no-remedy, there-is-no-right principle to its logical conclusion, the logic of the argument would confront the equally valid logic that dictates that if courts are to have a role in establishing the rule of law, we must accept it as an article of faith that their remedial orders issued in cases within their jurisdiction will be complied with. As the Court put it in the 1934 case of Tirrell v. Johnston, in a government of laws and not men, we must assume that "when the law is settled, it will be obeyed."

In order, therefore, for an issue to be judicially non-remediable and thus non-justiciable, there must be some larger impediment to the Court's authority than the sole fact that the Judiciary has to depend upon the Executive for enforcement of its orders. There must either be something about the nature of the issue which makes it inherently incapable of judicial remediation or there must be some express or implied prohibition upon the Court's remedial authority in the Constitution itself.

This brings us to the issue at hand - education. The obvious starting point for determining whether the "right to a constitutionally adequate education, adequately funded" is judicially remediable is Article 83, Part II, of the Constitution, from whence the right to an adequate education supposedly sprang. The problem is that Article 83 is totally silent about the issue of remedies. As we have already observed, it doesn't even make mention of rights, never mind remedies. What remedy, then, does the Court award if the legislators and magistrates fail in their duty to "cherish" education?

But before we review those provisions of the Constitution which potentially bear upon the Court's remedial powers over education, let us first examine the Claremont decisions to see what the Court itself had to say about this subject. As we noted in our last Letter, the Court essentially ducked the issue: "[W]e do not remand for consideration of remedies at this time, but instead stay all further proceedings until the end of the upcoming legislative session and further order of this court to permit the legislature to address the issues involved in this case." Why does the Court hesitate? Is it because it wishes to display its respect for the Legislature? Hardly! Despite the Court's lip-service to institutional deference, its Claremont decisions are much more reflective of hubris than they are of humility. Consequently, I suspect that the real reason that the Court says nothing about remedies is that there is nothing for it to say!

The fact, however, that the Court skirted the question of remedies in Claremont makes it very difficult for us to discuss this issue. It is always easier to discuss whether some specific remedy is verboten than it is to attempt to determine whether all remedies are off limits. As in any case where one is attempting to prove a negative, one is compelled to conjure up the full range of possibilities and then pick them off, one by one. Nevertheless, that it what we shall try to do here. And if we are successful, the exercise will reveal the final reason for us to conclude that the Court has overstepped the bounds of its proper jurisdiction in Claremont. That reason, of course, is that the Court-created "right to an adequate education" is a right for which there is no legal remedy. And, as we have discussed above, if there is no legal remedy, there is no legal right.

Part IV - Sovereign Immunity.

However, before we get into the specifics of the Court's remedial powers over education policy and education funding, there is one other aspect of the no-remedy-no-right principle which needs to be considered. Up to this point, we have analyzed the issue of justiciability primarily from the point of view of the plaintiff or of the Court itself. In this regard, we have asked either "does the plaintiff have a right?" or "can the Court grant a remedy?" There is, however, another party whose perspective must be considered: the defendant.

We have noted previously that the Court is reluctant to issue an order directed to a representative of one of its co-equal branches, especially the Governor. This is not simply a matter of institutional deference. It also has to do with the fact that such persons are representative of the State itself. "So what," you ask. "Don't people sue the Government all the time?" The answer to your question is, "Yes, they do - but only because the Government says they can." This is known as the doctrine of sovereign immunity. According to this doctrine, the State is immune from lawsuits unless it agrees to them. Therefore, the only reason that people can sue the State is because the State has agreed to it.

Historically, sovereign immunity originated in the proposition that "the King can do no wrong". Admittedly, we in America have no kings and we also believe that no one is above the law. In fact, as Chief Justice Doe noted in his opinion in 1874 in Orr v. Quimby, one of the reasons that we have a written Constitution is "that government not only can do wrong, but is exceedingly apt to do wrong." On the other hand, we still have the doctrine of sovereign immunity - but for different reasons. As the Court observed in the 1860 case of State v. Kinne:

[I]t is a principle of the common law as old as the law itself, that `the king is not bound by any statute, if he be not expressly named to be so bound.' .... With us, the State stands in the place of the crown; it is the crown. The people are sovereign; the State is the embodiment of the people, hence the very embodiment of sovereignty; and the rule has generally, we think, been applied in the same way in the United States as in England. [fn 14]

Despite having been subjected to great criticism over the years from lawyers, judges and academics, the doctrine of sovereign immunity is still alive and well in New Hampshire. As the Court itself has observed on numerous occasions, "The doctrine of sovereign immunity is deeply entrenched in this jurisdiction." Among other things, the Legislature has declared it to be the official policy of the State to retain sovereign immunity to the fullest extent compatible with the Constitution. Accordingly, RSA 99-D:1 states in the clearest of terms:

The doctrine of sovereign immunity of the state, and by extension of that doctrine, the official immunity of officers, trustees, officials, or employees of the state or any agency thereof acting within the scope of official duty and not in a wanton or reckless manner, except as otherwise expressly provided by statute, is hereby adopted as the law of this state.

It is important that one understand that, when it applies, sovereign immunity really means what it says. For example, in the 1951 case of Rothrock v. Loon Island, parties who disputed the State's claim to an island in Silver Lake attempted to get the Carroll County Superior Court to quiet the title to the property. When the case was transferred to the Supreme Court, it ruled that "Since the State cannot be sued in our courts without its consent and there is no statute, general or special, authorizing the present proceeding, it must be dismissed as against the State." In other words, in its broadest form, sovereign immunity does more than just deny an aggrieved party his traditional legal remedies; it keeps him out of court altogether. As the Court put it in Rothrock, unless the State consents, it "cannot be sued". Note, however, that RSA 99-D provides that the State asserts its sovereign immunity "except as otherwise expressly provided by statute." In fact, the Legislature has, in RSA 491-8 , waived the State's sovereign immunity for all suits on express and implied contracts, and in RSA 541-B, the State's immunity for tort claims - subject, however, to certain substantial exceptions. What are these exceptions? As the law currently stands, the State may not be sued for the tortious acts of its agents which they arise out of the exercise of their "discretionary functions". Discretionary functions - for which the State still retains its immunity from suit - are defined by the statute as those which involve:

(a) the exercise of a legislative or judicial function, and (b) the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion.

If we apply this definition of sovereign immunity to a suit for a violation of the so- called right to an adequate education, it is obvious that such a claim could not survive the test. Under any conceivable conception of what a discretionary function is, the determination of what makes up an adequate education simply must be such an animal. Whether the claim of the "injured party" is that there should have been less arts and more music, or there should have been smaller classes, or there should have been a larger library - or there should have been more or less of anything else - these are quintessentially issues of judgment which would warrant the invocation of a sovereign immunity defense. In other words, unless the Court were to rule that sovereign immunity is somehow inapplicable to the Claremont case, the right to an adequate education is clearly a right for which there is no remedy.

Moreover, if this sounds rather like our previous discussion of the political question doctrine, which holds that issues of social policy are not justiciable because of their multi-dimensional nature, it should. The fact is that the doctrine of sovereign immunity - in its current form - has much in common with the political question doctrine. Each of them accepts the fact that there is a domain in which the Judiciary lacks the competence to make decisions. The political question doctrine addresses the situation from the front end; it says that such questions are non-remedial because they are non-justiciable. The doctrine of sovereign immunity addresses the problem from the back end; it says that claims are non-justiciable because they are non-remediable. In either case, whenever the Court approaches this domain of institutional incompetence, the message that both of these doctrines send to the Court is the same: Thou shalt not enter.

Does this mean that the Claremont case should have been dismissed at the very outset because it was a suit against the State? Unless there is something special about the so-called right to an adequate education, it would appear that the answer to this question should be "yes". After all, if you can't even get into court, you certainly can't obtain a judicial remedy, and if there is no remedy, there is no right.

On the other hand, there is something special about a claim of a deprivation of the right to an adequate education. This is the fact that the claim arises under the Constitution. That is significant for several reasons. First of all, only the Government can violate the Constitution. Contrary to popular opinion, private citizens (for the most part) cannot violate the constitutional rights of other private citizens; only Government can. That is because the Constitution speaks to the relationship of citizens to their government and not to their relationship to each other. Consequently, it would be most peculiar if sovereign immunity would immunize the only party which can violate the Constitution from any liability for doing so. Secondly, the usual way in which we determine whether or not the Government has violated the Constitution is through a judicial determination of liability. Again, if sovereign immunity were a bar to all such suits against the State, judicial review would be an empty promise because the Court would never be permitted to determine whether or not a violation had occurred.

In fact, if sovereign immunity had no limits, it would completely swallow up, as to the State, the notion that where there is a right, there is a remedy. Consequently, the Court has indicated that absolute sovereign immunity would itself be unconstitutional. For example, in the 1983 case of State v. Brosseau, the Court suggested that the then existing statutory damage cap of $50,000 on common law tort claims against the State was probably unconstitutionally low. [fn 15] Obviously, if a $50,000 threshold was already too low, an across-the-board ban on all torts suits against the State would never be permitted. Moreover, if sovereign immunity has constitutional limits when the State commits a garden-variety tort, it surely cannot impose an absolute bar against suits versus the State when the State violates someone's rights under the Constitution.

What, then, are the permissible limits of the sovereign immunity defense? In other words, how much sovereign immunity can the State retain without running afoul of the Constitution? The Court answered this question in a 1985 Opinion of the Justices as follows:

When the particular conduct which caused the injury is one characterized by the high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning, governmental entities should remain immune from liability.

In other words, at least as to those "discretionary acts", which RSA 541-B had immunized from liability, the State was permitted to close the doors to its courts.

But, you ask, does the State's power to close its courts to claims involving its discretionary acts also include claims for its violation of the Constitution? Shouldn't all violations of the Constitution by the State, even ones that involve policy-making functions and other directionary acts, be actionable in a court of law? In other words, is it possible that sovereign immunity may properly only be raised as a defense to claims against the State for violations of statutory and common law rights, but it may never be properly interposed as a defense to a constitutional claim?

There are a number of different arguments which could be used to support such a proposition. For example, one can view the Constitution as a contract between the people and their Government which assumes a certain mutuality of obligation. There is some basis for this concept in Article 3, Part I, of the Constitution which provides that, "When men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void." On the other hand, this provision has never been interpreted by our Court as something which grants citizens remedial interests in the Constitution; on the contrary, to the extent that it has received any judicial construction (which has been very little), it has generally been viewed as one of those provisions of the Constitution which was intended to be merely a statement of underlying principles and, therefore, is non-justiciable. [fn 16]

Another tack that could be taken is to treat the Constitution itself as a grand waiver of sovereign immunity for anything that the document requires the State to do or not to do. As you may recall, the doctrine of sovereign immunity provides that the State cannot be sued "unless it consents". One could argue that the original ratification of the Constitution by the voters of 1784 (and its continued "ratification" by each succeeding generation's failure to amend it) constitutes the implicit consent of the people to allow themselves (i.e., the State) to be sued when they (i.e., the State) violate its provisions. Besides the fact that such a symbolic identification of the State as the alter ego of the people is antithetical to our anti-statist traditions, the argument is one which has never been accepted by the Court. In fact, in only one instance has the Court held that a provision of the Constitution itself constituted a waiver of sovereign immunity: the clause in Article 12, Part I, which requires the State to compensate a citizen for a taking of his private property for public purposes. [fn 16]

The fact of the matter is that the Court has never ruled that the Constitution requires any blanket exception to the doctrine of sovereign immunity for claims arising out of the instrument itself. In fact, the Court has specifically relied upon sovereign immunity doctrine in the exercise of its own powers to fashion remedies to deny relief to a party for an alleged constitutional violation.. For example, in the 1986 case of Rockhouse Mt. Property Owners Assoc. v. Town of Conway, a group of persons who owned property in the Town of Conway but who did not live there charged that the municipality had unconstitutionally discriminated against them on account of their non-residence, allegedly in violation of their right to equal protection of the laws guaranteed by Article 12, Part I, of the Constitution. Their complaint arose out of the Town's refusal to lay out a public road within their residential development. The Court, however, ruled that even if the plaintiffs could prove their case, it would be inappropriate for the Court to allow them to sue the Town for damages. Among other things, the Court held that the policies behind the doctrine of sovereign immunity should defeat a claim for damages because matters of highway layout "require the exercise of a high enough order of discretion to justify legal immunity".

Note the Court's reference again to the concept of discretionary acts. As we learned above, the Court had already determined that although the Constitution did place limits upon the doctrine of sovereign immunity, the Legislature could constitutionally refuse to waive the State's sovereign immunity for its discretionary acts. Now, in Rockhouse we have the Court itself carving out an area of official non-liability for exactly the same type of conduct. And equally as significant, we have it occurring in a case where the claim involved an alleged violation of constitutional rights.

It is important to understand, however, that the Rockhouse case was not a suit against the State; it was a suit against the Town of Conway, a political subdivision of the State. As a result, the question of whether or not the Town was entitled to immunity from suit was technically not dictated by sovereign immunity. Nevertheless, sovereign immunity concepts informed the Court's decision as to whether or not, as a matter of policy, it ought to create a judge-made cause of action for the Town's allegedly unconstitutional conduct. So what do you think would be the result in such a case if the defendant had been the State itself? Assume that the Legislature had neither asserted the State's sovereign immunity (i.e., there was no RSA 99-D), nor partially waived it (i.e., there was no RSA 541-B) and that the Court was free - as it was in Rockhouse - to decide for itself whether or not to allow a suit against the State. Would the Court immunize the State's discretionary acts, like it had done for those of the Town of Conway? [fn 17]

It is quite clear that the Court would do just that. In fact, there are indications in its decisions that the Court would exempt the State from liability for its discretionary acts - including for constitutional claims - because the Constitution requires it. This suggestion that the doctrine of sovereign immunity has a constitutional basis - at least insofar as it is limited to immunity from suits for discretionary acts - finds support in the well-known concurring opinion of Justices Douglas and Batchelder in the Brosseau case: "The distinction between routine activities that are not uniquely governmental in nature and activities that are discretionary and inherently governmental has been accurately described as an extension of the separation-of-powers doctrine." Ironically, the very same sentiments were echoed in an opinion written just eight months before Claremont by Chief Justice Brock, Mahan v. N.H. Dep't of Admin. Services:

The retention of sovereign and municipal immunity for discretionary functions stems from the separation of powers doctrine. This exception reflects judicial reluctance to evaluate the wisdom of an executive or legislative choice of public policy goals or the means to accomplish those goals ....

But in order to really test the theory that there is a constitutional imperative to sovereign immunity, let us take things to the final extreme. Assume that the Legislature passed a statute which purported to completely waive the State's sovereign immunity, even for its discretionary acts. Indeed, assume that the Legislature specifically authorized suits against itself for failing to pass "wholesome and reasonable" laws, suits against the Governor for failing to "faithfully" execute the laws and against the Judiciary for failing to "impartially" interpret the laws. It is my suspicion that the Court would hold all of these laws unconstitutional, including the one by which the Legislature tried to waive the State's sovereign immunity for its own discretionary acts. [fn 18]

Among other things, my belief in the probable unconstitutionality of such laws is based upon the Court's 1985 Opinion of the Justices, wherein the Court reviewed the policies underlying the doctrine of sovereign immunity in some detail. Indeed, its statement in that case of the considerations supporting the doctrine has generally been accepted as the standard against which all efforts to expand or contract sovereign immunity must be measured. The constitutional flavor of the Courts' reasoning is apparent and pervasive:

"Four considerations support continuation of the immunity doctrine. First, exposure to liability would force the State to obtain funds to satisfy, process, and insure against claims against the State by either increasing revenues or diverting funds from other uses. If the State incurred significant liability, the payment of these costs could impair the financial ability of the State to render governmental services. Second, exposure to liability for the State's tortious performance of functions that it alone can perform, such as law enforcement, in a sense, would penalize the State for undertaking these obligations. Unlike an individual or private entity, which can select its activities to minimize its liability exposure, the State may not eschew certain functions, even if the attendant liability exposure is onerous. Third, exposure to liability could inhibit the ability of the legislature and the executive to exercise effectively their discretion. To allow persons to challenge a governmental policy of the ground that it was negligently developed would force courts to re-evaluate the policy's wisdom and thus to invade the prerogatives of the legislature and the executive. See N.H. Const. pt.I, art. 37 (separation of powers). Finally, exposure to liability for the judiciary's negligent disposition of suits would greatly impair the ability of the courts to render final judgments and could undermine the confidence in the court system that is essential to its effective operation.

Where, then, does this discussion of sovereign immunity leave us? On the one hand, sovereign immunity appears to be constitutionally limited by the notion that a written constitution demands that the State not be permitted to violate the Constitution with impunity and by the notion that judicial review demands that the Court be entitled to provide a remedy for such violations. On the other hand, sovereign immunity appears to be a constitutional requirement derived from the principle of separation of powers which, in turn, restricts that same Court from interfering with certain acts of the State which are accomplished by the Executive and the Legislature. At another level, it appears to be merely a defense to legal actions which can be waived at will by the Legislature; yet the Legislature's power to waive it with respect to claims against the Judiciary and the Executive appears to be limited. And finally, it appears at times to be applied or withdrawn by the Judiciary itself, at its own election, as a part of its inherent powers to fashion remedies for violations of constitutional rights.

With the law in such a state of disarray, it is no wonder that the Court itself is confused about how sovereign immunity affects its powers to grant remedies in constitutional cases. The best that I can conclude about all of this is that however one gets there, the bottom line of sovereign immunity is that it instructs the Court that claims against the State for alleged violations of the Constitution are not justiciable when the challenged act or omission is one which is within the jurisdiction of the actor and is characterized by a high degree of discretionary choice. In fact, in the very opinion which is most often cited for the clearest exegesis of sovereign immunity, the concurring opinion of Justices Douglas and Batchelder in the Brosseau case, the authors state flatly that, "The remedy in those instances where a State official or his appointee is protected by sovereign immunity lies at the ballot-box, not in the courts".

On the other hand, the Court should not bear all the blame for not having considered the effect of sovereign immunity upon the Claremont case. On of the reasons that the Court did not have to deal with the issue is that the State did not raise it!

Nevertheless, all is not lost. Remember what the Court said about the doctrine in the Rothrock case: where sovereign immunity applies, "the State cannot be sued in our courts without its consent." Consent implies an affirmative act and, therefore, the fact that no one raised the issue in the lawsuit does not mean that consent has been given. More importantly, the Court has ruled many times that only the Legislature can give such consent. In fact, in the 1991 case of LaRoche, Administrtor v. Doe, the Court expressly ruled that the failure of the Attorney General - who was defending the State in that case - to raise the defense of sovereign immunity at the time that defenses must normally be raised in a litigated matter did not preclude him from raising the defense at a later time. This was because the defense belonged to the Legislature and since the Legislature had not, by statute or otherwise, waived its sovereign immunity for the type of claim being brought in that case, the defense could be raised by the Attorney General (or even by the Court) at any time. As the Court put it, "sovereign immunity is a jurisdictional question."

What, then, is the message for the Legislature? One possibility is that the Legislature could request the Attorney General by resolution to petition the Court to reopen the Claremont case in order for him to assert the State's sovereign immunity. Alternatively, perhaps the Legislature could even move to intervene in its own capacity and assert the defense. [fn 19] On the other hand, if the Legislature were not inclined to get itself directly involved in the Claremont litigation, it could pass a statute to provide- in no uncertain terms - that, at least for future cases, the State does not waive its sovereign immunity with respect to claims arising under Article 83, Part II, of the Constitution.

The real message, therefore, is that the Legislature is not impotent in these matters. On the contrary, it can and should assert its independence and its primacy with respect to educational policy and funding - and, if it does so, there is even a chance (however minimal it may be) that the Court would go along!

Part IV - Damages

Let us assume, however, that we are where we are and that neither the Attorney General, the Legislature nor the Court is going to raise the issue of sovereign immunity as a complete defense to Claremont and, therefore, that the case does not get dismissed on this ground. Let us further assume that the "legislators and the magistrates" fail to comply with the Court's deadline to alter the educational system of New Hampshire in a manner which complies with the dictates of Claremont I, II and IV. The Court would then be faced with the issue that it has so-far avoided: what to do about remedies?

One would presumably begin this task by referring to the constitutional provision at issue in this case: Article 83, Part II. But, as we have already observed, Article 83 does not say anything at all about remedies. What about Article 14, Part I? It certainly speaks to remedies. However, all it says is that "every subject in this state is entitled to a certain remedy ... for any injuries he may receive"; it doesn't tell us anything about what remedy an injured party should receive - much less one whose injury consists of being deprived of an adequate education.

We must take it as a given that the Court is not free to create remedies for constitutional violations ex nihilo (out of nothing). Even the Court would not subscribe to such a view. Moreover, this is not a new dilemma for the Court. In fact, the Court had occasion to deal with such a problem quite recently in the case of Marguay v. Eno. In that case, a group of former students who claimed to have been sexually abused by their teachers when they were in school argued that their rights to "life and liberty" guaranteed by Article 2, Part I of the Constitution had been violated and that they were entitled to a remedy. Noting that "our constitution does not specify remedies for its violation", the Court stated that the Court itself "ultimately has the authority to fashion a common law remedy for the violation of a particular constitutional right." As it turned out, the Court declined to exercise its claimed authority in Marguay because it concluded that other adequate remedies were available to the plaintiffs. Nevertheless, the point is that the Court will look to the common law for guidance in determining what remedies are appropriate for the vindication of constitutional rights.

This is generally how the Court has also interpreted Article 14, Part I. Despite the seemingly unequivocal language of Article 14, the Court has consistently ruled that this provision is not absolute. For example, in the 1979 case of Estate of Cargill v. City of Rochester, the Court noted that "the rights guaranteed by part I, article 14 are necessarily relative." More particularly, as the Court observed in a 1973 Opinion of the Justices, "the remedies provided in article 14 are to be `conformably to the laws'. This means the rules of statutory and common law applicable at the time the injury is sustained." In other words, the Court rejected the notion that Article 14 had constitutionalized some abstract, all-pervasive notion that the violation of a provision in the instrument entitled a party who claimed injury to any remedy which the Court might conjure up. On the contrary, what Article 14, Part I, did was to import into the Constitution a sense of historical time and place. It gave recognition to the fact that legal rights do not hang in space like some "brooding omnipresence"; rather, they exist in a milieu of historically accepted forms, procedures and remedies. [fn 20]

At common law, the customary remedy was a damages remedy. Indeed, an examination of the old English cases make this connection quite clear. For example, in the 1703 case of Ashby v. White, from which the axiom about every right having a remedy was derived, the plaintiff sought damages against an election official who had disallowed his vote in a parliamentary election, contrary to a statute governing the matter. Despite the fact that the statute prescribed no remedy for its violation and in the face of a claim that the plaintiff should seek his relief, if any, from the parliamentary committee on elections, the House of Lords decided that he was entitled to pursue his action in the courts for money damages.

All of this is quite consistent with what we generally mean by the term "remedy". In the law, the typical definition of the word is "compensate"; it usually refers to making someone whole for the injury he received. Accordingly, remediation has a retrospective connotation to it in the sense of its focus upon things which happened in the past. Thus it is often said that the purpose of a legal remedy is to restore the victim of an injury to the status quo ante, i.e., his condition before the injury. And since money is the common medium of exchange, it is generally accepted that the appropriate way to make all sorts of different people whole for all sorts of different injuries is to award them damages.

Claremont would not be the first case in which the Court has been confronted with a claim for money damages for a violation of the Constitution and where - as in the case of Article 83, Part II - the Constitution itself does not specify a remedy. These are said to involve claims for "constitutional torts". The interesting thing about such cases is that although the Court has frequently asserted its power to recognize such claims, it does not appear to have ever done so. Beginning with the 1819 case of Evans v. Foster and ending just three years ago with Marquay v. Eno, the Court has always found a reason to avoid the judicial creation of a civil cause of action for damages directly under the Constitution. In most cases, the Court has deferred because it concluded that already existing common law or statutory causes of action afforded the injured party an adequate remedy and, therefore, there was no need for the Court to fashion a remedy of its own

The sixty-four-dollar question, then, is whether or not the Court would or could grant a damages remedy to the Claremont plaintiffs. I believe that the answer to this question is probably "no". To begin with, if the Court went down this road, it would soon be dealing with a sixty-four-million-dollar question. If it were to grant a damages remedy to each and every child in New Hampshire who claims not to have received a constitutionally adequate education (whatever that may be) , the potential verdicts could soon dwarf the current State budget. Moreover, the transaction costs of the litigation in terms of lawyers' fees, consumption of judicial resources and deferred justice in other cases would be equally horrific.

The second reason is that damages are really not an appropriate remedy for the right at issue. As we have discussed before, the right to an adequate education is an affirmative right. Unlike the conventional rights which have traditionally been recognized under our Constitution (and, for that matter, under constitutions in general), the right to an adequate education is an entitlement. It is not something that is protected against governmental infringement; it is something which government must affirmatively give to everyone. Accordingly, if the State has violated the Constitution, it is not because it took something away from a citizen which the citizen previously had and for which the citizen can be made whole by a damages award.

That is not to say that damages can never be awarded to compensate someone for something which he was promised and didn't receive. On the contrary, that is exactly what damages are used for in a breach of contract suit; they are the measure of what the aggrieved party would have received if the contract had been honored. But providing a citizen with the fair market value of the adequate education to which he was supposedly entitled, but didn't get, in no way vindicates the purpose of Article 83, Part II, of the Constitution, which is to "spread the opportunities and advantages of education throughout the various parts of the country" in order to "promote ... the preservation of a free government."

This is presumably why the plaintiffs in the Claremont suit did not even ask for a damages remedy. The goal of the Claremont plaintiffs was not to obtain some personal damage award for the State's alleged failure in the past to have provided the children of Claremont, Allenstown, Franklin, etc. with an adequate education; their goal was to have the Court order the State to mend its ways and do things differently in the future. Indeed, this is implicit in the Court's comment in Claremont I that "the right to an adequate education mandated by the constitution is not based on the exclusive needs of a particular individual, but rather is a right held by the public to enforce the State's duty." Accordingly, awarding money damages to individual plaintiffs would not be responsive to the public's rights.

Another reason that the common law remedy of damages should not be available to compensate one for the State's failure to provide him with an adequate education is that the so-called right to an adequate education never existed at common law. That does not mean that a damages remedy for such a right could not be created by the Legislature. The Legislature could pass a statute providing for a damages remedy, but that has not happened and that is not what the Claremont suit is all about. [fn 21] The Claremont suit is all about the Court creating a remedy for a supposed constitutional right where the Constitution itself is silent on the matter and, as we discussed above, one of the things which the Court looks to when it engages in such an exercise is whether or not a particular remedy for a particular right existed at common law. Since there was no common law analog to the right to an adequate education, the Court would simply not feel compelled to grant the common law remedy of money damages.

When all is said and done, however, the real reason that the Court should not and, I believe, would not grant a damages remedy for the deprivation of someone's right to an adequate education is our old friend sovereign immunity. For if sovereign immunity has any force at all - whether as a constitutional imperative, as a statutory reservation or as a judicially self-imposed limit upon the Court's power to fashion remedies - it exerts its greatest weight when money damages are at issue. [fn 22] And if the State's immunity from suits for money damages extends at least to its discretionary, policy-making functions, it is almost impossible to see how the State's failure to define, implement or fund a citizen's right to an "adequate" education could ever subject it to liability for damages.

Accordingly, damages are out!

Part V - Mandamus

As we pointed out above, one of the characteristics of the so-called right to an adequate education is that it is an affirmative right, i.e., it is a right to something. Consequently, the most effective remedy for a deprivation of such a right would be a judicial order addressed to an appropriate governmental body or official directing such party to provide the plaintiff with what he was supposed to get. This is known in the law as a "writ of mandamus" (or, sometimes, a "mandatory injunction").

If the Court were to remand the Claremont suit to the Trial Court for a consideration of remedies, a mandamus order would clearly be something which would be requested by the plaintiffs. But to whom would such an order run? The Governor? The Legislature? The State Board of Education? The Claremont School District? The Claremont School Board? And what would such an order require? Would it direct the addressee to "provide the plaintiffs with an adequate education"? What if the addressee said that it didn't know what an adequate education was? Would the order require the party to "define an adequate education"? What if the addressee said it didn't have the money to provide an adequate education? Would the order tell the party to "raise the money"?

To begin with, it is clear that the Court simply has no power to order "the State" in its corporate, sovereign capacity to do anything. Likewise, the Court may not issue affirmative orders to one of its coordinate branches of government. For example, in the Piper v. Meredith case discussed above, the Court held that a court may not prevent a legislative body (there, the Meredith town meeting) from conducting its proper business, i.e., passing laws - even if the laws might not be constitutional. Although there is some question as to whether this prohibition applies equally to the Governor, this is due to the conceptual problem created by the fact that the Governor is not only the embodiment of the Executive branch, but is also a specific person holding an office within the Executive branch. In any case, whether or not the Court has the power to issue an order to the Executive, qua Executive, the fact is that it has historically not attempted to do so.

One of the reasons that the Court does not issue orders to its coordinate branches is simple comity. As we mentioned in our discussion of judicial restraint in an earlier Letter, it is essential for the Court to maintain amicable relations with the political branches, both because it enhances the likelihood that they will accede to its rulings and because it reduces the Court's vulnerability to their potential retaliation.

On the other hand, the overriding reason that the Court does not issue orders directing the Governor or the Legislature to do something is the doctrine of separation of powers. The executive power resides with the Governor and the legislative power resides with the Legislature and the Court has no power to compel either of them to exercise their powers. [fn 24]

Although one may seek to get around the Court's lack of power to issue directives to the other institutions of government by suing a particular government official, one will only be successful in obtaining a remedy if the official's duty which one wants the Court to enforce can be characterized as "ministerial". If the duty is "discretionary", the Court will not order the official to act. Therefore, just as in the case of the sovereign immunity defense to a claim for damages, if the act complained of involves a high degree of official judgment, the plaintiff will obtain no remedy for the violation of his rights.

This distinction between ministerial and discretionary acts is, in the first instance, a technical one which is associated with the historical uses of the writ of mandamus. As Chief Justice Doe observed in Attorney-General v. Taggart, "Mandamus ... extends to all cases of neglect to perform a legal duty .... If it be ministerial, then the mandamus will direct the specific duty to be performed .... [But] the Court will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties ... [i.e., duties which require] an exercise of judgment on a question of fact [which] is frequently called discretion."

On the other hand, the relationship between the amount of discretion involved in an official's discharge of his public duty and the Court's power to direct him in its exercise has constitutional implications, as well. Indeed, the propriety of the Court issuing a mandamus order to a public official was at issue in Marbury v. Madison. After Chief Justice Marshall had determined that Mr. Marbury had a legal right to his commission as justice of the peace and that the existence of his legal right implied the existence of a legal remedy, he still had to decide whether or not a writ of mandamus was the property remedy. Upon concluding that the mere delivery of Mr. Marbury's commission to him by Secretary of State Madison would be nothing more than a ministerial act, he ruled that the writ would be proper. Nevertheless, he noted that if the act required of Madison had involved the exercise of judgment, the Court would have had no jurisdiction to interfere:

It is scarcely necessary for the court to disclaim all pretensions to such jurisdiction. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.

Note Justice Marshall's mention of the so-called political question doctrine in the context of the Court's power to fashion a remedy. What he is suggesting is that any remedy which places the Court in the position of directing the discretionary actions of a member of the executive or the legislative branch implicates it in the exercise of a non-judicial power. In fact, this part of his decision mirrors our prior discussion about the distinction between what happens when the Court exercises its traditional, negative power of judicial review to declare a law unconstitutional and when it attempts to create affirmative rights in the nature of entitlements. When the Court declares a law unconstitutional, it need not decide what, if anything, should be put in its place. Likewise if it orders a public official to either do or not do a ministerial act, the Court's task is easy. However, when the Court defines an entitlement or when it issues a mandamus order to a public official which instructs him how to exercise his discretion, the Court's task is polycentric, non-linear and non-judicial.

A perfect case to illustrate this point is the Brouillard case mentioned in several footnotes above. According to a statute then in effect, the Governor and Council were required to appoint a Commissioner of Health and Welfare from the "two or more nominees" presented to them by an advisory commission. The advisory commission nominated four persons; the Council approved two and rejected two; the Governor, however, rejected both of the two approved by the Council. The advisory commission then sued the Governor and Council and requested the Court to order them to appoint one of the commission's nominees. Despite having concluded that Governor had failed to comply with his obligation under the statute to appoint one of the nominees, the Court declined to issue any order. Indeed, what order could have it have issued? Who should it have ordered the Governor to appoint? How could the Court decide?

Some might suggest that it would be a sufficient remedy in this case for the Court to simply order the Legislature and/or the Executive to do their duty without telling them how to do it. Such a contention would be based upon language in cases like the Rockhouse case where the Court stated that, "When an official is given discretion to decide how to resolve an issue before him, a mandamus order may require him to address the issue, but it cannot require a particular result." What this apparently means is that a Court has the power to issue an order to a public official to exercise his discretion.

Besides the fact that issuing such an order would just be a sham designed to get around the proscriptions against deciding remediless cases, it would not be even colorably appropriate in the Claremont case. It is one thing to issue this type of order to an official who is capable of exercising his discretion, but refuses to do so, but it is a very different thing to issue it to a deliberative body like the Legislature. The Legislature can only act when a sufficient number of its members (usually a majority) agree on something. How does the Court issue an order to such a body? Assume that there are several proposals on the table to define and/or to fund an adequate education. Which faction is allowed to become the majority and which ones have to give in and agree? The point is that an order directing a deliberative body to "exercise its discretion" in such a situation is not only a futile act; it is a silly act.

Note that the situation would not be any different in this case if the Legislature were to act, but the Court were to conclude that its efforts were insufficient to comply with its constitutional duty. Suppose, for example, that the Legislature were to enact the Governor's so-called ABC Plan, the one which the Court has already advised in Claremont IV would be unconstitutional if adopted. And now the Claremont case is remanded for a consideration of remedies. The Trial Court certainly could - and presumably would - be prepared to declare the new law unconstitutional. But that does not give the plaintiffs any remedy. Suppose the Court issues a mandamus order to the agents of the State not to collect the local property tax by which the ABC Plan would have funded education. I agree that the Court could do this because collection of the tax is a ministerial duty. [fn 25] But how does that remedy the plaintiffs' deficiently funded education? In fact, doesn't this do the plaintiffs much more harm than good? For by ordering that local property taxes cannot be assessed and collected to fund education, the Court guarantees that the plaintiffs will not receive an adequate education. In fact, they may get no education at all.

The explanation for this anomaly relates back to the distinction between positive rights and negative rights. In the typical case where the Government is violating the Constitution, it is doing something it isn't supposed to be doing. It is taking something away from the citizens which they already have; it is depriving them of their "rights". In this situation, an order to the agents of the State to cease and desist from their unconstitutional behavior is responsive to the harm being suffered by the plaintiff. It is truly a "remedy". But where the right at issue is an affirmative right like the right to an adequate education, issuing an order to an official to stop enforcing an unconstitutional law doesn't do the plaintiff any good. Indeed, by preventing the State from giving the plaintiff the something which it offers to him on the grounds that the something is not enough, the plaintiff ends up worse off than if he had not sued.

Accordingly, mandamus is out!

Part VI - Exculpatory Relief

For the same reasons that issuing an order to State officials not to collect an illegal tax or not to enforce an illegal education law would provide the plaintiffs with no remedy for their rights, granting the plaintiffs permission not to comply with such illegal laws is equally unavailing. In either case, the plaintiffs get less, not more education.

For example, let us again assume that the Legislature enacts the ABC Plan, but instead of ordering the State not to collect the unconstitutional tax, the Court orders that the plaintiffs (and others) need not pay the tax. Hasn't the Court accomplished the same thing? If people don't pay the school portion of their tax bills, there will be no money to support the schools and the Court itself will have insured that the will not receive their "constitutionally adequate education".

On the other hand, I will admit that to the extent that the tax equity aspect of the Claremont case is viewed in isolation, the picture does look different. As you recall, Claremont I was an education case, but Claremont II (excluding, of course, all the surplusage about the proper definition of an adequate education and the gratuitous reference to the "strict scrutiny" test) was a tax case. Although Claremont II was tied to Claremont I because of the Court's conclusion that the State's supposed duty to fund an adequate education made the school tax a State tax, the Court's declaration that local property taxes which varied from school district to school district created a group of potential plaintiffs who may well care not a hoot about education - but who would be delighted not to have to pay their school taxes.

So which constitutional right does the Court prefer over the other? Does it relieve the taxpayer group from paying an unconstitutional tax, but let the education group go without or does it let the education group continue to receive an education but let taxpayers suffer the burden of paying a disproportionate tax? Note that the effect of the Court's decision in Claremont II to delay the effective date of its ruling until the commencement of the 1999-2000 tax year was to choose the second option and to prefer the education interests over the taxpayer interests. But if nothing happens prior to April 1, 1999 to change the Claremont decisions, change the tax laws or change the Constitution, how will the Court resolve its Hobson's Choice the next time?

Some might argue that educational interests would in fact be benefitted by the Court responding primarily to the interests of taxpayers. They suggest that the Court should exonerate taxpayers from paying the school tax for the very purpose of bringing our educational system to a halt. Alternatively, they advocate that the Court exonerate all school children from the truancy laws so that only those who wanted to go to school would have to go. Again, they contend that the way for the Court to respond to the fact that the plaintiffs are not being provided an adequate education is to shut the schools down. The remedy for the violation of their right, therefore, is to punish the State.

This type of thinking comes from those who hold that an appropriate element of the Judiciary's remedial power is the creation of deterrents. According to this theory, a judge may properly look beyond the case at hand and fashion a remedial order which is designed to promote desirable conduct or deter undesirable conduct in the future.. In other words, in the name of the "greater good", the interests of the parties to the current lawsuit may properly be subordinated to the interests of all citizens, present and future.

The primary example of this philosophy of judging is the so-called Exclusionary Rule, the problematical notion that if the police treat a criminal suspect improperly, the courts should refuse to admit the "tainted" evidence at the suspect's trial in order to deter the police from committing a similar misdeed in the future. In the famous words of Supreme Court Justice Cardozo, "if the constable blunders, the guilty goes free." The net result of this two-wrongs-make-a-right jurisprudence, of course, is that both the criminal and the bad cop go unpunished!

This is neither the time nor the place to debate the merits of the Exclusionary Rule. Suffice it to say that, despite its continued vitality, most responsible commentators (including a number of former and present Justices of the US Supreme Court) recognize that it has no principled basis. Consequently, it provides no precedent for the importation of its methodology into other areas of the law. Moreover, even though our own Court has retained the Exclusionary Rule in cases of illegal searches and seizures and illegally obtained confessions, it has eschewed the theoretical basis of the Rule in other contexts. Indeed, in a recent Opinion of the Justices, the Court expressly stated that "under the State Constitution, as elsewhere in life, two wrongs do not make a right."

Accordingly, exculpatory relief is out!

Part VII - Krytocracy.

If the Court can't order the State or its officials to provide and/or fund an adequate education; if it can't relieve the plaintiffs from their obligations to go to school or to pay taxes; and if it can't award the plaintiffs money damages for the State's inaction; what is left? The only thing that is left is the one thing that the Court said it didn't want to do:

"We were not appointed to establish educational policy, nor to determine the proper way to finance its implementation". Claremont II.

"It is neither our task nor intent to manage the public school systems of this State ...." Claremont IV.

If one were to accept the Court's words as a promise, that would be the end of the matter. The plaintiffs would have no remedy and where there is no remedy, there is no right. But please don't fault me if I remain skeptical. I suggest we discuss the matter anyway.

The question is whether the Judiciary has the constitutional authority to itself establish educational policy, raise taxes to fund the schools and spend those funds to provide students with an "adequate" education. In my opinion, the answer to each one of these questions is a resounding "no". In the words of Alexander Hamilton in The Federalist, No. 78:

The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse.

We have already discussed the Judiciary's lack of power to actually run the schools in our prior Letters dealing with the nature of the "judicial power." Notwithstanding the Court's bizarre offering of its own "benchmark" definition of an adequate education in Claremont II, the Court has not previously deigned to overtly exercise the legislative power and to actually pass a law. [fn 26] Likewise, it has rejected offers from the Legislature to be delegated executive powers, such as when it held that a law purporting to give the probate courts the responsibility of establishing and administering a system of pauper relief would be a violation of the doctrine of separation of powers.

But suppose that our Court attempted - as others have - to take over the operation of the schools. This would mean establishing curriculum, hiring and firing teachers, setting standards for graduation, disciplining students and undertaking all of the other tasks necessary to insure that students received an adequate education. What tools does the Court have to do this job?

To begin with, the Court has a limited capacity to accumulate and digest the necessary facts which must be gathered in order to set good policy (assuming, of course, that we could even agree upon what "good" policy is). As noted by ex-New Hampshire Supreme Court Justice and now US Supreme Court Justice David Souter in the case of Washington v. Glucksberg, decided just last year:

[F]acts necessary to resolve the controversy are not readily ascertainable through the judicial process; but they are more readily subject to discovery through legislative fact finding and experimentation. Legislatures, on the other hand, have superior opportunities to obtain the facts necessary for a judgment about the present controversy. No only do they have more flexible mechanisms for fact finding than the Judiciary, but their mechanisms include the power to experiment, moving forward and pulling back as facts emerge within their own jurisdictions.

Although Justice Souter was talking about setting policy with respect to euthanasia, his comments hold just as true when it comes to education. Even more to the point, however, are the remarks of Justice Clarence Thomas in his concurring opinion in the 1995 case of Missouri v. Jenkins - in which the US Supreme Court set aside the wide-ranging remedial orders which a single District Court judge had issued in the course of his 20-year effort to personally desegregate the Kansas City school system:

[C]ourts simply cannot gather sufficient information to render an effective decree, have limited resources to induce compliance and cannot seek political and public support for their remedies.

Moreover, even if the Judiciary had the wherewithal to undertake the legislative component of providing an adequate education, it certainly does not have the resources to actually operate a school system. It has no staff of administrators. How would it enforce its policies? Send out the court bailiffs to drive the buses, to teach in the classrooms, or even to supervise others in doing these things? Just posing the hypotheticals illustrates how ludicrous this proposition is.

Equally as ludicrous is the notion of the Court setting tax policy and running a tax system to fund the schools. Again, the Court would be faced with the same problems of information gathering, policy-setting, administration and enforcement. It goes without saying that the Court has no staff of accountants, actuaries or other personnel capable of evaluating economic data to predict the revenues from or to evaluate the impact of one tax versus another. And even assuming that it could devise a fair tax (assuming, again, that we could agree upon what a "fair" tax is), the Court has no means to assess or collect such a tax.

In an earlier decision in the notorious Missouri v. Jenkins case, Justice Kennedy addressed the special issues that are raised when a court becomes embroiled in setting tax policy or gets entangled in tax administration:

The operation of tax systems is among the most difficult aspects of public administration. It is not a function the judiciary as an institution is designed to exercise. Unlike legislative bodies, which may hold hearings on how best to raise revenues, all subject to the views of constituents to whom the legislature is accountable, the judiciary must grope ahead with only the assistance of the parties, or perhaps random amici curiae. Those hearings would be without principled directions, for there exists no body of juridical axioms by which to guide or review them .... Day-to-day administration of the tax must be accomplished by judicial trial and error, requisitioning the staff of the existing tax authority, or the hiring of a staff under the direction of the judge .... Forcing citizens to make financial decisions in fear of the fledgling judicial tax collector's next misstep must detract from the dignity and independence of the federal courts.

In any case, when it comes to taxes, we don't need to rely upon the Court's concern for its own institutional "dignity and independence". We have the express words of our Constitution:

No subsidy, charge, tax, impost, or duty, shall be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people, or their representatives in the legislature, or authority derived from that body. Article 28, Part I.

But no part of a man's property shall be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. Article 12, Part I.

Full power and authority are hereby given and granted to the said general court to impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and residents within, the said state; and upon all estates within the same. Article 5, Part II.

All money bills shall originate in the house of representatives; but the senate may propose, or concur with amendments, as on other bills. Article 18, Part II.

These constitutional provisions are very familiar to the Court, having been the subject of interpretation in numerous cases. For example, the Court stated in the 1978 case of Crown Paper Co. v. City of Berlin in the clearest of terms that, "absent legislative authority, taxes cannot be assessed in New Hampshire." Even more apropos to Claremont, in the 1908 case of Canaan v. District, the Court expressly dealt with the suggestion that where it declares a tax unlawful because it does not comply with the "proportional and reasonable" requirements of Article 5, Part II, the Court has the power to revise the law to make it comply:

The constitution is not self-executing in this respect. It does not authorize any officials or department to assess taxes, except by authority from the legislature. If the true construction of the constitution requires the legislature to impose taxation upon all classes of property in the state, the failure of the legislature to comply with the constitutional command would be a violation of duty imposed on it by the fundamental law. If we assume the action of the legislature to have been unconstitutional because of a failure to tax all classes of property, the unconstitutional action of the legislature in refusing or neglecting to provide for the taxation of certain classes of property would not authorize the court to invade the domain of the legislature and order the taxation of such property; for the power of taxation is included within the supreme legislative power vested by article 2 of the constitution in the senate and house of representatives.

In other words, the Court has neither the power to create a tax of its own, nor the power to modify an existing tax, nor the power to direct the Legislature to do what it is powerless to do itself. All that the Court can do in the realm of taxation is declare an existing tax unconstitutional - as it purported to do in Claremont II - and either order the tax collector not to collect it or exonerate the taxpayer from paying it - as the plaintiffs may or may not argue it should do when and if we ever get to Claremont V.

But even assuming that the Court were to invent its own tax and find a way to collect it, does the Court have the power to spend the money? Again, the Constitution speaks directly to this issue and, again, the answer is "no".

No moneys shall be issued out of the treasury of this state, and disposed of, (except as may be appropriated for the redemption of bills of credit, or treasurer's notes, or for the payment of interest arising thereon) but by warrant under the hand of the governor for the time being, by and with the advice and consent of the council, for the necessary support and defense of this state, and for the necessary protection and preservation of the inhabitants thereof, agreeably to the acts and resolves of the general court. Article 56, Part II.

[Taxes are] to be issued and disposed of by warrant, under the hand of the governor of this state for the time being, with the advice and consent of the council, for the public service, in the necessary defense and support of the government of this state, and the protection and preservation of the subjects thereof, according to such acts as are, or shall be, in force within the same. Article 5, Part II.

These provisions have also been interpreted by the Court to mean what they say. For example, in a 1910 Opinion of the Justices, the Court stated that "From these provisions of the constitution, it is clear that the governor has no authority to draw his warrant upon the treasury in a particular case, unless there is some existing act or resolve authorizing such payment."Moreover, in the 1950 case of State v. Kimball, the Court made it clear that no one except the Governor and Council may direct that funds be withdrawn from the State treasury, even upon proper legislative authorization. In other words, a judicial authorization for an expenditure would be unavailing and the State Treasurer would be acting wrongfully to comply with it.

The mere fact that some judges in some other states have purported to wield the power of purse and the sword in their efforts to remediate perceived constitutional violations involving the schools in their jurisdictions is surely no good reason for our Court to do likewise. Besides potential differences between our Constitution and those of the states which have been victimized by such judicial orders, most of these orders were simply exercises in judicial hubris. A political scientist writing about the Depression-era Court coined a word for this brand of tyranny; he called it "krytocracy". It means government by judges. The Constitution of New Hampshire, however, contemplates a different form of government; it is one based upon the consent of the governed. We call it "democracy".

Accordingly, orders from the Krytocracy are out!

Part VIII - Conclusion

Although it is virtually impossible to canvas all remedies that the Court might contemplate for the Claremont plaintiffs when and if the case ever gets to the remedy stage, I think we have fairly well covered the range of realistic possibilities. And the landscape looks pretty barren. I just don't see any appropriate legal remedy for the supposed legal "right to an adequate education, adequately funded". Maybe the Court has a different crystal ball, but I doubt it. My guess is that the Court thought that by delaying the effective date of its decisions, it would simply be able to sidestep the issue because the Governor and the Legislature would just roll over and change the laws.

But whether the laws get changed or whether they don't, and whether the Claremont case ever gets to a remedy stage or whether it doesn't, is not the be all and end all of the matter. As Justice Kennedy stated in Missouri v. Jenkins, "This case is a stark illustration of the ever-present question whether ends justify the means." According to our own Court in Petition of Public Service Company of N.H., however, "Desirable ends will not validate unlawful means."

As Chief Justice Doe said in his opinion for the Court in Edes v. Boardman, decided in 1879, `[I]t is a vain thing to imagine a right without a remedy. Want of right and want of remedy are reciprocal .... When the law ... declines to interfere between the claimant and his disturber, and stands, as it were, neutral between them, it is manifest that, in respect to the matter involved, no claim to the legal rights can be advanced". The point is that the Claremont case is a judicial decision in a remediless case. As such, it is no more than an advisory opinion. It should have been dismissed by the Court at the outset. In fact, there is even a longshot chance that it could still get dismissed if the Governor and/or Legislature take appropriate action to press the point.

If the Court's overreaching in the Claremont case is ultimately the cause of its undoing, it will have no one to blame but itself. The Justices of our Supreme Court apparently think that our system of education is in need of reform. Contrary to what they may believe, however, if the Court had declined to decide Claremont, that would not be the equivalent of the Court approving of the existing educational scheme in New Hampshire. As the US Supreme Court stated when it refused 25 years ago in the Rodriguez case to find an affirmative right to education in the Federal Constitution, "We hardly need add that this Court's action today is not to be viewed as placing its judicial imprimatur on the status quo."

If only the Court had heeded its own words, penned by the majority in the Public Service Company case quoted from above in response to an argument of the dissenters (led by then Associate Justice Brock) that the Court should issue an advisory opinion because the issue was "important":

All across our State and nation, lawyers daily are faced with important legal questions which they would prefer to have definitively answered by an appellate court. Our constitutional republic, however, confines the judiciary to deciding cases and not to serving as a "super law firm," no matter how high the stakes or how important the question. Were we to accept this transfer, the power of the judiciary would be expanded beyond anything heretofore known in America. The hydraulic pressure of a hard case cannot compel us to expand our limited authority under the constitution. The judiciary's ship is not to meant to be all sail and no anchor.

Rasputin

Footnotes

[Footnote 1] Indeed, when the principle is phrased in this manner, one can more fully understand the connection between the otherwise separate parts of Justice Marshall's opinion in Marbury v. Madison. In his mind, the doctrine of judicial review and the notion that judicially-determined rights imply judicially-enforceable remedies were inextricably linked together. To put it simply, if the Court's power to declare things unconstitutional were to have any real meaning, the Court had to have the power to do something about it. Or, as others have since expressed the matter, unless the Court can be deemed to have the power to grant a remedy for the violation of a constitutional right, the Constitution is but a "mere form of words".

[Footnote 2] Note, however, that Article 14 can also be read in another, more limited, way. In its guarantee of a remedy for "injuries" to one's "person, property or character", the provision has a certain tort-law flavor to it. On this level, Article 14 appears to be simply a guarantee that common law remedies for personal injury claims, especially the remedy of money damages, will not be impaired. This is certainly the way in which the provision was interpreted in the 1979 case of Estate of Cargill v. City of Rochester, where the Court stated that, "the purpose of part I, article 14 was to make civil remedies readily available, and to guard against arbitrary and discriminatory infringements on access to the courts." On the other hand, Article 14 can also be read as intending to guarantee a judicial remedy for the violation of all justiciable rights, including, but not limited to, those guaranteed by the Constitution. This is the way the Court read the provision in the recent case of Marguay v. Eno, where it cited Article 14 for the proposition that "a denial of a constitutional right demands some vindication in the law."

[Footnote 3] The concern over suits by hypothetical parties manifests itself in the doctrine of "standing." Among other things, this generally means that the parties to litigation must have a personal interest in the dispute and that, unless so authorized by a specific statute, they do not appear exclusively in a representative capacity as a proxy for someone else. For example, the Court held in the 1982 case of Sununu v. Clamshell Alliance that "neither the constitution nor the laws of this State authorize a taxpayer to bring a suit on behalf of the State." In addition, the claims that a party may assert must be "definite and concrete touching the legal relations of adverse parties." This requirement of adversity, in turn, means that the interests at issue must be something more than just amorphous political, social or moral interests such as the interest which all citizens presumably have in seeing the law is obeyed. Accordingly, prior to Claremont, the Court generally required that either (1) the plaintiff have some type of personal economic interest which was affected by the dispute at hand (such as a taxpayer contesting the validity of a tax), (2) the plaintiff claim that some protected legal interest of his had been or probably will be injured (as in the case of the victim of a tort or of the non-breaching party in a contract dispute), or that the plaintiff be a member of a class expressly granted standing by a statute (such as an abutter to a proposed real estate development who is defined as "an aggrieved party" under our zoning and planning laws)

As we learned in an earlier Letter, Claremont eviscerated much of the lore of standing when the Court held that any citizen may bring an action to enforce what the Court said was the public's right to an adequate education. [It must be acknowledged, however, that Claremont is not the only case in which our Court failed to honor the established rules of standing. For example, in the 1974 case of O'Neil v. Thomson, the Court allowed the officers of the House and Senate to bring an action challenging certain executive orders of the Governor which imposed a State hiring freeze, but which did not affect any of the plaintiffs personally. The Court held that the plaintiffs "have sufficient right and interest in the performance by public officers of their public duties and in the preservation of an orderly and lawful government to entitle them to maintain these proceedings." On the other hand, the plaintiffs in O'Neil were not just ordinary citizens and, therefore, there was at least an arguable basis for giving them standing to enforce public rights.]

[Footnote 4] Although the court has said on many occasions that a justiciable controversy "cannot be based on a set of hypothetical facts" and that the facts must be "complete, mature, proximate and ripe", this is not to say that courts may not give any consideration to hypotheticals in their decisions. On the contrary, the use of hypotheticals to test the logic of one's argument is a typical form of legal reasoning. Indeed, the jurisprudential quest for "neutral principles" virtually demands that any legal proposition be subjected to such a test to see how it holds up when applied beyond the case at hand to variant factual situations that may come up in the future. This use of hypotheticals as an intellectual device to establish legal principles of sufficient breadth that we can keep our promise to be a government of laws, not men, however, is a far cry from a court deciding a case in which the facts that are supposedly at issue or the parties who are supposedly at odds with each other are, on the contrary, made up.

[Footnote 5] If the potential problem with a declaratory judgment is its arguable prematurity, at the other end of the timing spectrum is the case which has become moot. This is the case where, for example, some change occurs in a party's status while his case is on appeal which renders irrelevant or unobtainable the relief which he was seeking. For instance, an athlete who sues to be granted a position on an Olympic team has a moot case when the Olympics come and go before his case is heard. Likewise, a convicted criminal who seeks to overturn his conviction and be released from jail loses the remedy he seeks when he serves his entire sentence while his case is pending on appeal. As the Court said in its 1990 decision in Appeal of Hinsdale Federation of Teachers, it will generally refuse to review a question that "no longer presents a justiciable controversy because the issues involved have become academic or dead." Nevertheless, just as with respect to the notion of ripeness, the Court has come to relax its position on whether or not it may decide a moot case. As the Court said recently in the 1996 case of Petition of Brooks, if the issue "involves a significant constitutional question or an issue of significant public concern," a party who desires to pursue a case which has become moot may be permitted to do so. On the other hand, just as in the declaratory judgment situation, the assumption in the moot case is that the only issue is timing and that the Court could have provided a remedy if it had only acted sooner.

[Footnote 6] This is why the mere fact that the Court issues a declaratory judgment, but does not grant the successful plaintiff any remedy does not necessarily mean that the Court has decided a remediless case. There is a genre of cases, especially those involving the Governor or some other highranking member of the executive branch as a defendant, in which the Court has undertaken to declare that the plaintiff was right, but where the Court has also stated that it was unnecessary to issue any remedial order against the defendant(s). The most notable case in this category is the case of O'Neil v. Thomson, mentioned in a prior footnote. Although the Court held that certain executive orders were "beyond the powers of the Governor and invalid", the Court noted that it did "not recommend or issue an injunction" against the Governor. However, the Court clearly could have issued an injunction to the Governor directing him to perform the ministerial act of simply rescinding his executive orders. Consequently, the reason that the Court gave the Plaintiff no remedy was presumably out of deference to the office of the Chief Executive. [Interestingly enough, the only private party which has been accorded the same type of deference is the N.H. Bar Association. For example, in the 1986 case of Petition of Chapman, the Court held that the Bar Association had been engaging in lobbying activities which were contrary to its charter, but it declined to issue a cease and desist order on the grounds that it was unnecessary. Again, however, there is no doubt that the Court could have issued such an order.] On the other hand, where parties of lesser status than the Governor are the defendants, the Court has dismissed the case for lack of jurisdiction if the only thing the plaintiff is seeking is a declaratory judgment as to the legality of the defendants' proposed actions. For example, in the 1938 case of Conway v. Water Resources Board, a taxpayer requested the Court to rule that the expenditure of public funds by the State Water Resources Board was unconstitutional, but the plaintiff specifically withdrew its request for an injunction against such expenditure. Noting that "there is no right to an adjudication of matters not in contention", the Court refused to allow the case to be heard.

[Footnote 7] In fairness, I should point out that there are several New Hampshire declaratory judgment cases which point in the opposite direction. The first of these is the 1890 case of Attorney-General v. Taggart. In that case, Attorney General Barnard petitioned the Supreme Court for an order of mandamus directing the President of the Senate, David Taggart, to assume the duties of then Governor Goodell on account of the latter's extreme sickness. Senator Taggart was reluctant to do so because Article 49, Part II, of the Constitution, which made the Senate President the next in line for succession to the duties of the Governor in the event of a "vacancy", did not specifically mention illness as a cause therefor. The Court, however, had no trouble concluding that a disabling illness was a proper occasion upon which to declare a vacancy in the office. The hard question was whether the court could do anything about the situation. The Court specifically noted that there was a question as to whether or not it had the power to compel Senator Taggart "to exercise the governor's powers in a particular manner (approve and sign a bill passed by the senate and house, concur with the council in the appointment of a justice of the peace or the pardon for a convict ...)". Nevertheless, the Court purported to avoid this issue by limiting its order to simply directing Senator Taggart to serve in the office. As to the possibility that he might not comply with even that order, the Court stated that, "an amendment of the petition could raise the question of whether the best procedure would enable the state to obtain a judgment establishing the fact of an executive vacancy, and the public right to [Mr. Taggart's] service as a substitute. A decision of this question might be as important as an adjudicated reformation of a deed, or as any other establishment of a private right by the declarative judgment."

Almost 100 years later, the Taggart case was cited favorably by the Court in its 1974 decision in Brouillard v. Governor and Council, another declaratory judgment case involving the office of Governor. By statute, the Governor and Council were supposed to appoint the Commissioner of Health and Welfare from a list of two or more nominees submitted by an advisory commission. Governor Meldrin Thomson, however, refused to choose either of the persons whose names were submitted to him by the commission. The Court specifically discussed the question of whether or not, if it found that the Governor had not complied with the law, it had the power to grant the petitioners any remedy. Noting that the act of appointment of a government official was a discretionary one, the Court declined to issue an order against the Governor. Notwithstanding its conclusion that it could not (or at least it would not) issue such an order, the Court nevertheless elected to decide the question of whether or not Governor Thomson was acting in violation of the statute. Accordingly, the Court concluded its opinion with the by-then gratuitous statement that "the responsibility for leaving the office vacant lies with the Governor."

[Footnote 8] This list of parties who may properly ask for advisory opinions may offer some explanation for the Taggart and Brouillard cases. Although they are still anomalies in that they appear to be advisory opinions issued outside the context of Article 74, they do have a kinship to Article 74 cases. In the Taggart case, the petitioner was the Attorney General, but he was apparently acting at the behest of the Governor in bringing the petition. Additionally, the defendant, the President of the Senate, apparently indicated to the Justices that he was desirous of having their advice (and stamp of approval) upon the question of whether or not he should assume the role of the Governor. Similarly, in the Brouillard case, the petitioners were the members of the advisory commission who had submitted the nominees for Commissioner of Health and Welfare to the Governor and the Council. Although their petition was nominally brought against both the Governor and the Council, it appears from the case that the Council supported the petitioners' case. In addition, the impasse concerning the appointment of a Commissioner had already been the subject of two prior advisory opinions, one requested by the Governor and Council and the other requested by the Senate. Thus, although the Court does not rely upon this fact in either of these cases, it appears that they both came about as close as one can get to actually being Article 74 cases.

The similarity of the parties to Article 74 parties and the fact that the case involved the powers of the Governor may also explain the relaxation of the standing rule and some of the other justiciability doctrines which characterize the O'Neil case, also discussed above. On the other hand, the real explanation for the Court's extraordinary extension of its jurisdiction in the O'Neil, case (and in the Brouillard case and a number of other cases decided in the 1970's, as well) is that the Governor who bore the brunt of the Court's judicial wrath was the feisty and iconoclastic Meldrim Thomson, Jr. Suffice it to say that Governor Thomson had a habit of pushing his own authority to its constitutional limits. As the old saying goes, "bad cases make bad law."

[Footnote 9] Even in cases where the Legislature's requests for an advisory opinion concerning the interpretation of existing law may have some bearing upon a pending proposal for new legislation, the Court has generally refused to answer the question. An interesting pre-Claremont example of this is the 1959 Opinion of the Justices involving the question posed to the Court by the Senate concerning a bill pending in that body to allow three specific school districts to enter into a long-term contract for the joint construction, maintenance and funding of a high school. The question which the Senate asked and which the Court declined to answer was, "Do school boards presently have authority or the power to enter into a contract beyond one year?" What makes this case interesting is not the fact that the Court declined to answer the question that the Senate asked. It is the fact that the only question that was asked related to the power of school districts to enter into long-term contracts; nobody apparently even thought to question whether or not local districts should be funding their own schools.

[Footnote 10] In this sense, advisory opinions are just like rulings made by a court in a litigated case which go beyond the facts of the case or which are unnecessary to the court's resolution of the dispute. Such rulings are known as obiter dictum and are not considered to be binding upon courts in future cases. On the other hand, it is probably true that many of the most quoted portions of famous judicial opinions are technically not a part of the holding of the case. For example, as we pointed out in a prior Letter, despite its monumental significance in American jurisprudence, Justice Marshall's grand assertion of the power of judicial review in Marbury v. Madison was actually mere dictum. Nevertheless, when a court egregiously goes out of its way to volunteer its opinion on a matter which is not at issue in the case, the event is likely to provoke dissension within the bench itself. For example, in the 1984-5 case of Appeal of Seacoast Anti-Pollution League, the majority proceeded - "in the interests of conserving judicial resources and judicial economy" - to address an issue raised by the parties, but admittedly made irrelevant by the Court's holding on another point in the case. The consequence of this adventure into the land of dictum was that several Justices felt compelled to write dissents castigating the majority for issuing "a sweeping declaration of the rights of future litigants, utilities and investors." [In fact, the criticism of the dissentors could just as easily have been leveled at Claremont: (1) "the breadth ... of the majority's holding ... abdicates the responsibility of this court as factual situations present themselves in the future"; (2) "the majority's resolution of this case without an adjudicated factual basis violates notions of substantive due process"; and (3) "the majority's acceptance of (its own definition of an adequate education) denies opposition parties procedural due process by impairing their appellate rights without an opportunity to be heard on the factual basis for the decision."]

[Footnote 11] It is interesting to note that the proposal to grant the US Supreme Court advisory opinion authority was phrased in terms which are quite similar to Article 74, Part II, of our Constitution: Each branch of the legislature, as well as the supreme executive, shall have authority to require the opinions of the Supreme Judicial Court upon important questions of law, and upon solemn occasions.

[Footnote 12] In addition to issuing decisions and orders in contested cases and advisory opinions in Article 74 cases, the Court also publishes administrative orders pursuant to its constitutional and inherent powers to supervise the court system and the bar. Although the Court's rule-making is often submitted to public and professional comment, this is not an adversary process and the Court's orders are more in the nature of reports than judicial opinions. In any case, the Court's practice of issuing such orders provides no basis for arguing that it should be able to decide a remediless case.

[Footnote 13] Again, I note that there is some contrary jurisprudence in this area. In an Opinion of the Justices issued in 1881, the Court did answer a request from the Senate concerning its powers under the Federal Constitution to elect a United States Senator. (Prior to the passage of the 17th Amendment to the Constitution, US Senators were not popularly