Enforcement of public rights by private citizens.
"The danger of minding other people's business is twofold. First, there is the danger that a man may leave his own business unattended to; and second, there is the danger of an impertinent interference with another's affairs. The "friends of humanity" almost always run into both dangers. William Graham Sumner: WHAT SOCIAL CLASSES OWE TO EACH OTHER (1883).
a. "The right to an adequate education mandated by the constitution is not based on the exclusive needs of a particular individual, but rather a right held by the public to enforce the State's duty. Any citizen has standing to enforce this right." Claremont I.
b. "Nor are these plaintiffs competent to call in question the validity of these laws [concerning the governance of Dartmouth College] in a court of justice, on the ground that they are injurious to the public interests .... If these acts be injurious to the public interests, the remedy is to be sought in their repeal, not in courts of law." Trustees of Dartmouth College v. Woodward (1817).
The propriety of towns bringing claims against the State to enforce constitutional provisions.
"No constitution carries within it the seeds of its own destruction." George Washington.
a. "The plaintiffs are five `property poor' school districts and five school children and five taxpayers, one from each of the school districts." Claremont I. (emphasis added).
"The plaintiffs are five school districts, five students, and eight taxpayers and parents." Claremont II.. (emphasis added). b. "[W]e see no reason in this case to deviate from the general rule that a town has no standing to bring challenges against the State based upon constitutional protections of individuals." Appeal of Town of Exeter (1985).
"In the present case, the State questions the standing of [the Town of Madbury] to sue the State. It points out that towns are created by the State and are within its entire control. In the exercise of the power of taxation, the Town acts under the authority of the State and, except as authorized by statutes, has no right to be heard on an abatement or assessment by a State agency of taxes levied in the town." Madbury v. State (1975).
"[The Town of] Hampton argues that [the Court's] interpretation [of the statute at issue in this case] would violate the State constitutional prohibition against retrospective laws. N.H. CONST. Pt. I, Art. 23. Public entities such as school districts, however, have no standing to assert any rights under that article." In Re: Gary B. (1983).
The presumption of constitutionality.
"It has always seemed to me that [the] ... presumption of constitutionality makes eminent good sense. If the Supreme Court wrongly decides that a law enacted by Congress is constitutional, it has made a mistake, but the result of its mistake is only to leave the nation with a law duly enacted by the popularly chosen members of the House of Representatives and the Senate and signed into law by the popularly chosen president. But if the Supreme Court wrongly decides that a law enacted by Congress is not constitutional, it has made a mistake of considerably greater consequence; it has struck down a law duly enacted by the popularly elected branches of the government not because of any principle in the Constitution, but because of the individual views of desirable policy held by a majority of the nine justices at that time." Justice William H. Rehnquist, THE SUPREME COURT (1987).
"To set aside the acts of [the Legislature], representing in its own field, which is the very highest of all, the ultimate sovereign, should be a solemn, unusual, and painful act. Something is wrong when it can ever be other than that." James Bradley Thayer, JOHN MARSHALL (1901)
a. "[W]hen an individual school or school district offers something less than educational adequacy, the governmental action or lack of action that is the root cause of the disparity will be examined by a standard of strict judicial scrutiny." Claremont II.
b. "And while it is nowhere denied that, in a limited government like ours, acting under a written constitution, irrepealable except by the people themselves, and which imposes many restraints upon the power of the legislature and in which the judiciary is made a coordinate and independent branch of the government, the courts have the power to declare the acts of the legislature void; and it may become their imperative duty to do so, in the faithful exercise of their constitutional powers and discharge of their duties, yet, when called upon to pronounce an act of legislation, packed with all the forms and solemnities requisite to give it the force of law, invalid and void, in consequence of its conflicting with some constitutional provision, courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject; and will never declare a statute void unless the nullity and invalidity of the act are placed, in their judgment, beyond all reasonable doubt." Rich v. Flanders (1859).
Exercising judicial restraint not to decide issues that are not necessary to be decided.
"But what is liberty without wisdom, and without virtue? It is the greatest of all possible evils; for it is folly, vice, and madness, without tuition or restraint." Edmund Burke: REFLECTIONS ON THE REVOLUTION IN FRANCE (1790).
"The admonition that judicial self-restraint alone limits arbitrary exercise of our authority is relevant every time we are asked to nullify legislation .... The reason why from the beginning even the narrow judicial authority to nullify legislation has been viewed with a jealous eye is that it serves to prevent the full play of the democratic process. The fact that it may be an undemocratic aspect of our scheme of government does not call for its rejection or its disuse. But it is the best of reasons, as this Court has frequently recognized for, for the greatest caution in its use." Justice Felix Frankfurter, West Virginia State Bd. of Education v. Barnette (US, 1943) (dissenting).
a. "We look to the seven criteria articulated by the Supreme Court of Kentucky as establishing general, aspirational guidelines for defining educational adequacy.... We view these guidelines as benchmarks of a constitutionally adequate public education." Claremont II.
b. "The rule of construction universally adopted is, that when a statute may constitutionally operate upon certain persons, or in certain cases, and was not evidently intended to conflict with the constitution, it is not to be held unconstitutional merely because there may be persons to whom, or cases in which it cannot constitutionally apply; but it is to be deemed constitutional, and to be construed not to apply to the latter persons or cases, on the ground that courts are bound to presume that the legislature did not intend to violate the constitution." Opinion of the Justices (1861)
"Because this case can be resolved on statutory grounds, we do not reach the constitutional issues." Appeal of Astro Spectacular (1994).
Judicial interference with the legislative process.
"The house of representatives shall choose their own speaker, appoint their own officers, and settle the rules of proceedings in their own house." Article 22, part II, N.H. Constitution.
"The senate shall appoint their president and other officers, and determine their own rules of proceedings." Article 37, Part II, N.H. Constitution.
"The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any action, complaint, or prosecution in any other court or place whatsoever." Article 30, Part I, N.H. Constitution.
a. "[W]e anticipate that [the Governor and the Legislature] will promptly develop and adopt specific criteria implementing these guidelines and, in completing this task, will appeal to a broad constituency." Claremont II.
"[W]e note the commendable steps taken by the Governor and legislature in reaching their definition of a constitutionally adequate education. The legislatures's involvement of a broad cross-section of the community in the process can only lead to a definition that will serve this State's school-age citizens well as they journey toward achievement in the world around them." Claremont IV.
b. There is nothing in the constitution prescribing the method which the [legislature] must adopt to acquaint themselves with the contents of any proposed measure before its passage". Opinion of the Justices (1911).
"It is well settled that [a] question being `wholly legislative', a hearing is not essential to due process." Brouillard v. Atwood (1976).
"In our opinion, there are no independent procedural requirements under the due process clauses of either the United States or New Hampshire Constitutions affecting the validity of the legislative process .... Accordingly, the remedy for those who feel aggrieved by either the statute or the procedures employed by the legislature in its adoption is at the ballot box, not in the courts." Seabrook Citizens v. Yankee Greyhound Racing, Inc. (1983).
Collectivism or individualism?
"Every man, as long as he does not violate the laws of justice, is left perfectly free to pursue his own interest in his own way, and to bring both his industry and capital into competition with those of any other man, or order of man." Adam Smith, THE WEALTH OF NATIONS (1776).
"To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical." Thomas Jefferson.
"[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection .... [T]he only purpose for which power can be rightly exercised over any member of a civilized community, against his will, is to prevent harm to others." John Stuart Mill, ON LIBERTY (1859).
"It is especially incompatible with our form of democratic republic to charge the state with many and various functions, for our state should be simple to the last possible degree. It should handle as little money as possible; it should encourage the constant individual activity of its citizens and never do anything to weaken individual initiative. But the tendency today is all the other way." William Graham Sumner, ESSAYS (1934).
a. "Because the diffusion of knowledge and learning is regarded by the State Constitution as `essential to the preservation of a free government', it is only just that those who enjoy such government should equally assist in contributing to its preservation." Claremont II.
"[I]t is basic to our collective well-being that all citizens of the State share in the common burden of educating our children." Claremont IV.
b. "The meaning of the bill of rights is largely a matter of historical fact. Its historic meaning agrees with the ordinary and natural sense of its language, which is distinctly brought out by an isolated grant, written in the express terms of a grant. As a matter of legal signification, shown by history and by every relevant rule and reason of interpretation, jury trial is no more a constitutional right granted to the state than is the right of religious belief and worship, habeas corpus, freedom of the press, or immunity from general warrants, compulsory self-crimination, trial after acquittal, retrospective legislation, unauthorized taxation, and excessive bail. It is a security, not for the sovereignty, the independence, or the public property of the state, but for private life, private liberty, and private property against all power, public and private." Wooster v. Plymouth (1882).
Government from the top down or from the bottom up?
"In the end, what informs the American political tradition is a proposition and a premise. The proposition is that the best national government is, to use a phrase the founding fathers were fond of, "mild government." The premise is that you can only achieve mild government if you have a solid bedrock of local self-government, so that the responsibilities of national government are limited in scope." Irving Kristol, REFLECTIONS OF A NEOCONSERVATIVE (1983).
"If the functional autonomy of social units is to be respected, if localism, regionalism, and the whole spirit of voluntary association is to flourish, power wielded by government must be distributed into as many hands as possible - not abstract, desocialized political hands but those we actually see in the social order, those of workers, enterprises, professionals, families, and neighborhoods .... Few things have more grievously wounded the political community in our time than the kind of centralization that has become virtually a passion in the political clerisy during most of this century. ...." Robert A Nisbet, THE TWILIGHT OF AUTHORITY (1975).
a. "It should not be forgotten that New Hampshire is not a random collection of isolated cities and towns. Indeed, all of us live in a single state. The benefits of adequately educated children are shared statewide and are not limited to a particular town or district. We live in a highly mobile society such that a child may be educated in Pittsfield and, as an adult, reside in Moultonborough. That adult may serve or influence the town or State and as an elected or appointed official, a business or civic leader, or in various other endeavors. The benefits of that citizen's public education and contributions to community may be felt far beyond the boundaries of the educating town or district. Therefore, it is basic to our collective well-being that all citizens of the State share in the common burden of educating our children." Claremont IV.
b. "In contradistinction to those governments where power is concentrated in one man, or in one or more bodies of men, whose supervision and active control extend to all of the objects of government within the territorial limits of the state the American system is one of complete decentralization, the primary and vital idea of which is that local affairs shall be managed by local authorities, and general affairs only by the central authorities.... The several state constitutions have been framed with this system in view, and the delegations of power which they make, and the express and implied restraints which they impose thereupon, can only be correctly understood and construed by keeping in view its present existence and anticipated continuance. There are few of the general rules of constitutional law that are not more or less affected by the fact that the powers of government are not concentrated in one body of men, but are carefully distributed with a view to being exercised with intelligence, economy, and facility, and, as far as possible, by the persons most directly and immediately interested." State v. Hayes (1881).
Local control over education.
"In our opinion, centralization and bureaucratization of public schooling are the fundamental reasons for [its] deterioration. As financing of public schools has moved further and further away from local control, the educational bureaucracy has tended to replace parents in deciding what and how our children should learn. The most expedient, and perhaps the only, way to return control to parents is an arrangement whereby parents can choose the schools their children attend - and if you are not satisfied - can move their children from one school to another." Milton Friedman, TYRANNY OF THE STATUS QUO (1984).
"In large states public education will always be mediocre, for the same reason that in large kitchens the cooking is usually bad." Friederich Nietzsche: HUMAN ALL-TOO-HUMAN (1878).
"[L]ocal autonomy of school districts is a vital national tradition." Dayton Bd. of Education v. Brinkman (US, 1977).
a. "We recognize that local control plays a valuable role in public education; however, the State cannot use local control as a justification for allowing the existence of educational services below the level of constitutional adequacy." Claremont II
b. "Local education is a local purpose for which legislative power may be delegated to towns." Holt v. Antrim (1886).
School tax as a State or local tax.
"[D]irect control over decisions vitally affecting the education of one's children is a need that is strongly felt in our society." Wright v. Council of the City of Emporia (US, 1972).
"In part, local control means ... the freedom to devote more money to the education of one's children. Equally important, however, is the opportunity if offers for participation in the decision making process that determines how those local tax dollars will be spent." San Antonio School District v. Rodriguez. (US, 1974).
a. "We find the purpose of the school tax to be overwhelmingly a State purpose and dispositive of the issue of the character of the tax .... That the State, through a complex statutory framework, has shifted most of the responsibility for supporting public schools to local school districts does not diminish the State purpose of the school tax." Claremont II.
b. "Local education is a local purpose for which legislative power may be delegated to towns. The amount of money to be raised for school-houses and other educational purposes is determined, under some restrictions, by municipal corporations." Holt v. Antrim (1886).
The proportionality and fairness of school taxes which vary from town to town.
"It is essential that you should practically bear in mind, that towards the payment of debts there must be Revenue; that to have Revenue there must be taxes; that no taxes can be devised which are not more or less inconvenient and unpleasant; that the intrinsic embarrassment inseparable from the selection of the proper objects (which is always a choice of difficulties) ought to be a decisive motive for a candid construction of the Conduct of the Government in making it, and for a spirit of a acquiescence in the measures for obtaining Revenue which the public exigencies may at any time dictate." George Washington, Farewell Address (1796).
"The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized . . [T]he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. . . It has . . . been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes . . ." Madden v. Kentucky, (US, 1940).
"Any scheme of local taxation - indeed the very existence of identifiable local government units - requires the establishment of jurisdictional boundaries that are inevitably arbitrary. It is equally inevitable that some localities are going to be blessed with more taxable assets than others. Nor is local wealth a static quantity. Changes in the level of taxable wealth within any district may result from any number of events, some of which local residents can and do influence. For instance, commercial and industrial enterprises may be encouraged to locate within a district by various actions - public and private. Moreover, if local taxation for local expenditures were an unconstitutional method of providing for education than it might be an equally impermissible means of providing other necessary services customarily financed largely from local property taxes, including local police and fire protection, public health and hospitals, and public utility facililities of various kinds. We perceive no justification for such a severe denigration of local property taxation and control as would follow from appellees' contentions. It has simply never been within the constitutional prerogative of this court to nullify statewide measures for financing public services merely because the burdens or benefits thereof fall unevenly depending upon the relative wealth of the political subdivisions in which citizens live." San Antonio School District v. Rodriguez, (US, l974)
a. "Evidence introduced at trial established that the equalized tax rate for the 1994-1995 school year in Pittsfield was $25.26 per thousand while the rate in Moultonborough was $5.56 per thousand. The tax rate in Pittsfield, therefore, was more than four times, or over 400 percent, higher than in Moultonborough .... We need look no further to hold that the school tax is disproportionate in violation of our State Constitution .... In addition, we conclude that the school tax as presently assessed is unreasonable. There is nothing fair or just about taxing a home or other real estate in one turn at four times the rate that similar property is taxed in another town to fulfill the same purpose of meeting the State's educational duty." Claremont II.
"Essentially, the proponents [of the abatement feature of the Governor's ABC Plan] seek to measure proportionality and fairness on a municipality-by-municipality or district-by-district basis, rather than statewide. But, to the extent that a property tax is used to raise revenue to satisfy the State's obligation to provide an adequate education, it must be proportional across the State .... This obligation cannot be avoided or lessened by the mere circumstance of a town having few children or a Town having a wealth of property value, including wealth generated by the presence of heavy industry." Claremont IV.
b. "[F]or the academic year 1964-65 Troy must pay $598.28 for each of its 368 students; Fitzwilliam $782.62 for each of its 208 students; and Gilsum only $109.36 or $260 for each of its 165 students .... The factors for determining the share of costs of operating Monadnock [the cooperative school district of which Troy, Fitzwilliam and Gilsum are members] to be paid by a constituent town are the average daily number of its students attending the school and its equalized valuation. We fail to see how this method of determining costs can be deemed arbitrary or to result in the denial of equal protection of the laws to the citizens of Troy or of any other town in Monadnock .... To promote the general welfare by equalizing the educational opportunities of all of the children of the State, the Legislature can provide foundation aid to districts and towns otherwise unable to provide adequate education for its inhabitants. The fact that the receipt of this aid together with the computation of the operating costs of the district school according to a formula contained in the act authorizing the creation of such a district results in one town in the district having to raise more dollars per pupil attending the cooperative school than any other town in the same district does not place an unequal tax burden on any inhabitant of a particular taxing district which is the constitutional equality required. The Constitution does not guarantee that all taxing districts shall have an equal number of pupils to educate, or that the aggregate costs of education shall be identical." Monadnock School District v. Fitzwilliam (1964).
"The financial ability of the various school districts in the state to provide an adequate education for its school children is dependent in large measure on the equalized valuation of the towns which compose the district." Opinion of the Justices (1965)
Disproportionalities in taxes based upon disproportionate consumption of the public resources or disproportionate assumption of the public burden.
"What reason is there that he which laboreth much, and, sparing the fruits of his labor, consumeth little, should be more charged than he that, living idly, getteth little and spendeth all he gets, seeing the one hath no more protection from the commonwealth than the other?" Thomas Hobbes, LEVIATHAN (1651).
"To take from one, because it is thought that his own industry and that of his fathers has acquired too much in order to spare to others, who, or whose fathers[,] have not exercised equal industry and skill is to violate arbitrarily the first principle of association, `the guarantee to every one of a free exercise of his industry, and the fruits acquired by it.'" Thomas Jefferson, Letter to Joseph Milligan (April 6, 1816).
a. "Proponents of the [Governor's ABC Plan] also assert that the special abatement is designed to protect towns from financially contributing to the adequate education of children in other towns or school districts.... While good cause or just reasons [for a tax exemption or abatement] can be created by public policy determined by the Legislature, public policy cannot undermine the constitutional requirement of proportionality .... This obligation cannot be avoided or lessened by the mere circumstance of a town having few children or a town having a wealth of property value, including wealth generated by the presence of heavy industry." Claremont IV.
b. "The basis principle that all taxpayers shall share in the public expense equally, however, is not violated by a legislative exemption of a certain class of property from taxation, in whole or in part, provided the exemption serves the public welfare.... In enacting RSA Ch. 162-I [providing for a tax exemption for Industrial Development Authority-owned industrial facilities], the legislature declared that there was a need `to foster and encourage the development of industrial facilities.'.... In considering the original draft of RSA 162-I:15, the supreme court justices cautioned the house of representatives that a corporation leasing an industrial facility which did not make any payment in lieu of taxes would unconstitutionally be relieved of paying its just share of the public expense.... We hold, therefore, that `just share of the public expense' does not equal assessed valuation and that the board of taxation should consider all factors deemed relevant in making its determination of what constitutes a just share. Among those factors are: (1) the fair market value of the industrial facility, (2) the increase in the cost of public expenses due to the new facility, (3) the share in the cost of the existing public expenses, (4) the benefit to the community of having the particular industry locate in the community, and (5) the employment opportunities to be created or retained within the community or its environs." Eltra Corp. v. Town of Hopkinton (1979).
The proper scope of judicial review over legislative decisions on education - the so-called "strict scrutiny" test.
"The present case [involving a claimed right to an adequate education] is significantly different from any of the cases in which the Court has applied strict scrutiny to state or federal legislation touching upon constitutionally protected rights. Each of our prior cases involved legislation which `deprived,' `infringed,' or `interfered' with the free exercise of some such fundamental personal right or liberty .... It should be clear ... that this is not a case in which the challenged state action must be subjected to the searching judicial scrutiny reserved for laws that create suspect classifications or impinge upon constitutionally protected rights." San Antonio School District v. Rodriguez (US, 1974).
a. " We emphasize that the fundamental right at issue is the right to a State funded constitutionally adequate public education .... [W]hen an individual school or school district offers something less than educational adequacy, the governmental action or lack of action that is the root cause of the disparity will be examined by a standard of strict judicial scrutiny." Claremont II.
b. "Nor is the expediency, or the policy of such laws [regarding education], a subject for judicial decision. The constitution has given to the [legislature] full power and authority to make and ordain all such laws `as they may judge for the benefit and welfare of this state.' Should we assume the power of declaring statutes valid or invalid, according to our opinions of their expediency, it would not be endured for a moment, but would be justly viewed by all, as a wanton occupation, altogether repugnant to the principles of our government." Trustees of Dartmouth College v. Woodward (1817).
Which rights are "fundamental" and which rights are something less?
"There is no warrant in the constitutional basis of this Court's authority for attributing different roles to it depending upon the nature of the challenge to the legislation. Our power does not vary according to the particular provision of the Bill of Rights which is invoked. The right not to have property taken without just compensation has, so far as the scope of judicial power is concerned, the same constitutional dignity as the right to be protected against unreasonable searches and seizures and the latter has no less claim than freedom of the press or freedom of speech or religious freedom. In no instance is this Court the primary protector of the particular liberty that is invoked." Justice Felix Frankfurter, West Virginia State Bd. of Education Barnette (US, 1943) (dissent).
a. "We hold that in this State a constitutionally adequate public education is a fundamental right." Claremont II.
b. "Maintenance of a free public school system "is not so much a right granted to pupils as a duty imposed upon them for the public good." Fogg v. Board of Education of Littleton (1912).
"We have held ... that the right to recover for one's injuries is not a fundamental right." Carson v. Maurer (1980).
"The right to work in one's occupation has never been placed on equal footing with fundamental personal rights." Petition of Grimm (1993).
"The right of a citizen "in being free from the exaction of a forfeiture of his property" is not a fundamental right." Allgeyer v. Lincoln (1984).
Avoiding or delaying a decision on the grounds of expediency.
"A good and faithful judge prefers what is right to what is expedient." Seneca.
"Justice is a certain rectitude of mind whereby a man does what he ought to do in the circumstances confronting him." Thomas Aquinas, SUMMA THEOLOGIAE (c.1265).
"Justice has nothing to do with expediency. It has nothing to do with any temporary standard whatever." Woodrow Wilson, Speech in Washington (Feb. 26, 1916).
"Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary." Schechter Poultry v. United States (US, 1935).
a. "We are mindful of the fact that our decision holding the present system of financing public education unconstitutional raises issues concerning the interim viability of the existing tax system. Because the legislature must be given a reasonable time to effect an orderly transition to a new system, the present funding mechanism may remain in effect through the 1998 tax year." Claremont II.
b. "We are not persuaded that the special abatement provision [of the Governor's ABC Plan] is supported by good cause or just reasons consistent with the Constitution. Proponents of the bill would have us construe Part II, Article 5 as permitting the special abatement in order to prevent social discord and because other tax resolutions could be divisive. That all three branches of government must struggle with difficult decisions which may cause social unrest cannot be a factor in the court's constitutional review of the bill. The duty of those of us who are constitutional officers, no matter in what branch of government, is to resolve important issues of the day within the confines of the constitution for the benefit of the people of New Hampshire." Claremont IV.
Law as politics.
"No matter whether th' constitution follows th' flag or not, th' supreme court follows th' iliction returns." Mr. Dooley's Opinions (1900) (a parody).
a. "[W]e note the commendable steps taken by the Governor and legislature in reaching their definition of a constitutionally adequate education. The legislature's involvement of a broad cross-section of the community in the process can only lead to a definition that will serve this State's school-age citizens well as they journey toward achievement in the world around them. We applaud the Governor and legislature for the work accomplished to date and in advance for that yet to be undertaken." Claremont IV. b. "It is neither our task nor intent to manage the public school systems of the State ...." Claremont IV.
The propriety of the Court declaring rights without providing a remedy
"Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. " THE FEDERALIST, No. 15.
a. "The State's duty to provide for an adequate education is constitutionally compelled. The present system selected and crafted by the State to fund public education is ...unconstitutional .... [However,] we 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." Claremont II.
b. "When the law commands a thing to be done, it puts in requisition the means of executing its command." Boody v. Watson (1886).
"[W]e remain convinced that the conferral of a right implies the existence of a remedy." State v. Brosseau (1983).
"[It is a] settled principle that a denial of a constitutional right demands some vindication in the law." Marquay v. Eno (1996).
The Court's power to issue an advisory opinion.
"[T]he judicial power, as we have seen, is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction .... This attempt to obtain a judicial declaration of the validity of the act of Congress is not presented in a "case" or "controversy", to which, under the Constitution of the United States, the judicial power alone extends .... Such judgment will not conclude private parties, when actual litigation brings to the court the question of the constitutionality of such legislation. In a legal sense the judgment could not be executed, and amounts in fact to no more than an expression of opinion upon the validity of the acts in question." Muskrat v. United States (US, 1911).
a. "We hold that in this State a constitutionally adequate public education is a fundamental right .... [However,] we 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 issued involved in this case." Claremont II.
b. "The law is ... plain that advisory opinions cannot be given by the court on the petition of private individuals." State v. Harvey (1965).
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