Although it is somewhat difficult to discern from the Plaintiffs' conclusory allegations in their pleadings and memoranda exactly what it is that they claim the Legislature has failed to do, it appears that they wish to engage in litigation over three adequacy-related issues:

1. the definition of a constitutionally adequate education;

2. the cost of an adequate education; and

3. a system of accountability for the delivery of an adequate education.

See Memorandum of Law in Support of Motion for Procedural Order, p. 24. See also, id. at p. 3 & n. 1; Motion for Procedural Order , para. 3B.

A. What is an "Adequate'' Education?

Let us begin with the definition of a constitutionally adequate education. The Legislature adopted such a definition in its 1998 session by passing HB 1075. See RSA 193-E. The definition adopted by the Legislature was essentially the same one that had been included in the so-called ABC Plan, which this Court, in an advisory opinion rendered to the Senate, ruled unconstitutional on other grounds. See Opinion of the Justices (School Financing ), 142 N.H. 892 (1998). In that decision, the Court stated that, "we note the commendable steps taken by the Governor and legislature in reaching their definition of a constitutionally adequate education.''

Nevertheless, on November 10, 1998, the Plaintiffs filed a motion to declare State's definition of adequacy unconstitutional. Their motion requested "that this Court declare the definition [of adequacy in HB 1075] unconstitutional as a matter of law.'' In their supporting memorandum of law, the plaintiffs argued, among other things, that the definition in HB 1075 was deficient because (1) it made reference to "the'' opportunity, rather than an equal or a meaningful opportunity, to acquire knowledge and skills, and (2) it did not expressly make reference to that "benchmark'' articulated by this Court in Claremont II regarding "academic or vocational skills''. See Memorandum of Law in Support of Petitioners' Motion to Declare the State's Definition of Adequacy Unconstitutional, p. 6-9.

In their new motions, the Plaintiffs have apparently abandoned these specific objections. Indeed, nowhere in any of the Plaintiffs' current filings can one find any articulated contention as to why the State's definition of educational adequacy in HB 1075 should be considered unconstitutional. Accordingly, unless this Court is inclined to accept the Plaintiffs' invitation for

it to become some type of roving ombudsman, there is nothing about the Legislature's definition of an adequate education for the Court to review.

An equally good reason for the Court not to unnecessarily reach out to review the State's definition of adequacy is that it said it wouldn't do so. In Claremont II, this Court set forth a series of "benchmarks'' which it stated were "general, aspirational guidelines for defining educational adequacy.'' Claremont School District v. Governor, 142 N.H. 462, 474 (1977). Quoting then from a State of Washington case, the Court said that, "While the judiciary has the duty to construe and interpret the word `education' by providing broad constitutional guidelines, the Legislature is obligated to give specific substantive content to the word and to the program it deems necessary to provide that `education' within the broad guidelines''. Ibid. And, if there was any doubt about the Court's future role in this arena, the Court clarified it in its advisory opinion on the ABC Plan: "It is neither our task nor our intent to manage the public school systems of the State.'' Opinion of the Justices (School Financing), 142 N.H. 892 (1998). ¹

I can only assume from these remarks that the Court is not eager to micromanage the Legislature's definition of an adequate education in the manner which the Plaintiffs apparently propose. Justice Horton put it in his dissent to Claremont II, that "one man's adequacy is another's deficiency''. What is "adequate''? How high is "up''? As this Court observed in Sargent v. Cornish, 54 N.H. 18, 22 (1873), if one wished to let one' s imagination soar, the appropriate goals of education are virtually infinite:

It would seem to be impossible to prescribe in definite terms the almost innumerable objects of liberal bounty, with which a town might be advantageously and happily endowed, directly or in trust. It would probably be agreed by all, that a town in this state may hold property in trust for educational purposes. And what are they? Not merely the means of instruction in grammar, or mathematics, or the arts and sciences, but all that series of instruction and discipline which is intended to enlighten the understanding, correct the temper, purify the heart, elevate the affections, and to inculcate generous and patriotic sentiments, and to form the manners and habits of rising generations, and so fit them for usefulness in their future stations.

It is precisely this type of soaring imagination that the Plaintiffs hope to take advantage of by referring this issue out to a factfinder with no identification by them of the specifics of their claim and no further direction by this Court. Exactly what is it that they challenge about the State's definition of an adequate education? I suspect that it is just what they claimed in their November, 1998 motion - except that they have rethought their position and decided that it was so weak that they would have a better chance of success if they kept a low profile in this Court and got the issue into a forum where it would be subjected to resolution by the all-too-common "battle of the experts''.² Here is what the Plaintiffs are up to. As identified by the Attorney General's Office in their Objection to Motion to Declare State's Definition of Adequacy Unconstitutional, the first thing the Plaintiffs want is to relitigate their contention that Article 83, Part II of the Constitution creates a right, not just to an "adequate'' education, but also to an "equal'' education. See p. 8-9. As the Attorney General pointed out, this Court rejected such a claim in Claremont II: "We emphasize that the fundamental right at issue here is the right to a state funded constitutionally adequate public education. It is not the right to horizontal resource replication from school to school and district to district.'' Claremont School District v. Governor, 142 N.H. 462, 473-4 (1997). The Plaintiffs, however, don't want to give up on this point and hope to backdoor it through a "factfinding'' process.

The other aim of the Plaintiffs is to secure a substantial expansion of the State's definition of educational adequacy to include more items and more detail. The mechanism by which the Plaintiffs apparently seek to accomplish this is by focusing upon this Court's vocational benchmark which it said was designed to "provide sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or the job market.'' Claremont School District v. Governor , 142 N.H. 462, 475 (1997). Again, the idea is to get the "experts'' into a forum in which they can express their opinions on all manner of minutia which they will claim are essential elements of a modern, job-oriented education.

As the Attorney General pointed out earlier, HB 1075 does not ignore the Court's vocational benchmark. Objection to Motion to Declare State 's Definition of Adequacy Unconstitutional, p. 9-10. But that is not a full answer to why this Court should not travel down the road the Plaintiffs apparently suggest. The real reason is that, of all the benchmarks that this Court established in Claremont II, the one with the least historical justification (and, as the Plaintiffs recognize, the most open-ended one) is its vocational benchmark.

Justice Horton made the point in his dissent in Claremont II that Article 83 ought to be read in the light of its "constitutional'' purpose. Claremont School District v. Governor, 142 N.H. 462, 479 (1997). He then found that purpose to be stated in the text of Article 83 as "the preservation of a free government''. Ibid. One can only assume that the majority of the Court agreed with Justice Horton on his first point, but disagreed with him on the second point.

If one examines the history of Article 83 and the contemporaneous understanding of its meaning, it is clear that Justice Horton was at least right that Article 83's primary purpose was the preservation of a free government. In a wonderful book directly on point by Lorraine Smith Pangle and Thomas L. Pangle called THE LEARNING OF LIBERTY - THE EDUCATIONAL IDEAS OF THE AMERICAN FOUNDERS (U. of Kansas Press, 1993), the authors argue that the most commonly recognized goal of public education in the new republics which had so recently broken their ties with what they considered to be an oppressive and overweening government was "the collective awakening of individuals, as citizens, to a cooperative vigilance against government's overstepping of its strictly circumscribed legitimate bounds''. Id . at 5. In other words, the primary purpose of public education in a democracy was to teach people how to protect themselves against their own government.

As we know, Article 83 was modeled upon the Encouragement of Literature clause in the Massachusetts Constitution of 1780. The Supreme Court of Massachusetts recites much of the history of that provision and the thoughts of the Massachusetts political leaders of the time on the subject of education in its decision in McDuffy v. Secretary of the Executive, 415 Mass. 545, 615, N.E. 2d 516, 582-593 (1997). The common thread of their thinking was, as expressed by Samuel Adams, that the purpose of public education was to "qualif[y] them [the youth] to discover any error, if there should be such, in the forms and administration of Governments, and point out the method of correcting them.'' Address to the Massachusetts Legislature, January 17, 1794, 4 THE WRITINGS OF SAMUEL ADAMS, p. 359-360 (H.A. Cushing, ed. 1968). However, Sam's cousin John Adams, the actual draftsman of the Encouragement of Literature clause, said it even better years before in his work entitled A Dissertation on the Canon and Feudal Law (1765):

And liberty cannot be preserved without a general knowledge among the people, who have a right, from the frame of their nature, to knowledge, as their great Creator, who does nothing in vain, has given them understandings, and a desire to know, but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge - I mean, of the character and conducts of their rulers.

A secondary theme among the Framers as to the purposes of education was the creation of civic virtue, of the classical republican variety. See generally , Pangles, supra. Thus, the goal was to create good citizens who would participate honorably and selflessly in the operation of government. See Claremont School District v. Governor, 138 N.H. 183, 190-1 (1993) (Response of General Assembly to Address of Governor Wentworth, December 30, 1771 and Address of Governor Gilman to House and Senate, 1795). See also , John Adams, Thoughts on Government (January, 1776), THE SELECTED WRITINGS OF JOHN AND JOHN QUINCY ADAMS (Koch & Peden, eds. 1946), p. 50-57. See generally, Brigham v. State, 166 Vt. 246, 692 A. 2d 384, 392- 4 (1997).³

Other themes find an occasional mention in the literature of the times. One of these lesser considerations was the teaching of reading so that people could understand the Scriptures. See, e.g., The Great Sathan Act of 1647, The General Laws of the Massachusetts Colony (1672). See generally, Pangles, supra at Chpt. 9. Although the goal of enhancing religion does appear to be have been at least a minor theme in the adoption of the Enhancement of Literature clause of the New Hampshire Constitution, it did not command the general acceptance of the population in the way that the political themes did. But see, Article 6, Part I, NH Const.; Muzzy v. Wilkins (Smith Report, N.H., p. 1-38); Kidder v. French (Smith Report, N.H., p. 155-168) (NH Law Library). ⁴

The educational goal that one finds least-mentioned by the men and women of the late nineteenth century is vocational training. See generally , Pangles, supra at Chpt. 4. The primary advocate of education in "useful'' matters was Benjamin Franklin. See, e.g., Proposals Relating to the Education of Youth in Pennsylvania (1749). On the other hand, "Franklin's proposals met with only limited success.'' Pangles, supra at 75. In particular, although one can read things into the occasional references in the New Hampshire sources to education's effect upon "prosperity'', it would appear that Franklin's views were not a motivating factor behind the adoption of Article 83, Part II of our Constitution.

Accordingly, it would torture both the text and the history of Article 83 to make much of this Court's vocational benchmark. This is not to suggest that the Court should retract it, but only that the Plaintiffs not be permitted to elevate it to a stature unintended by our Framers. What is good for Kentucky may not be good for New Hampshire. Let it be the minor player that it should be and guard against any effort to admit it into the big leagues. For if you do not, I assure you that it will grow topsy-turvy - until it completely spins out of control.

B. Must the State Control the "Delivery'' of an Adequate Education?

The second adequacy-related issue which the Plaintiffs wish to have transferred to a master for factfinding concerns the question of accountability and assessment. This issue was also raised by the Plaintiffs in their November 1998 challenge to HB 1075. Memorandum of Law in Support of Petitioners' Motion to Declare the State's Definition of Adequacy Unconstitutional, p. 3-6. The Plaintiffs claimed then that the supposed failure of HB 1075 to provide sufficient mechanisms to assess whether or not individual school districts were providing an adequate education and to aid and/or discipline those that failed to meet State requirements rendered the State's educational system unconstitutional. In this regard, the Plaintiffs suggested that this Court's interpretation of Article 83, Part II of the New Hampshire Constitution in Claremont I as imposing a duty upon the State to "provide'' a constitutionally adequate education mandates the adoption of such assessment and accountability standards.

The Plaintiffs apparently make the same contention in their current motions. Most peculiarly, however, this contention does not appear (except perhaps in a most conclusory form) in either the Plaintiffs' Motion for Procedural Order or its supporting memorandum of law. Instead, it appears in the Plaintiffs' Memorandum of Law in Support of Petitioners' Motion for Sanctions under the heading of "Broken Promises''. See p. 6-8. In support of their request for an award of attorneys fees, the Plaintiffs point to a most unfortunate concession by the Attorney General's Office at the hearing upon the Plaintiffs' November 1998 motion to declare the State's definition of an adequate education unconstitutional. At that time, the Attorney General agreed with the Plaintiffs that this Court's decisions in Claremont I and Claremont II mandated a new "system of implementation'' for the delivery of an adequate education and that the State had not as of that date met the Court's mandate. See generally, Objection to Motion to Declare State's Definition of Adequacy Unconstitutional. ⁵ Since the Attorney General went on to suggest that the Legislature would continue to work on this issue in 1999 and would presumably develop an implementation system by the Court's April 1, 1999 deadline, the Plaintiffs claim that the State has "broken its promise'' by not passing any such statute in its 1999 session.⁶

The Plaintiffs now attempt to bootstrap the Attorney General's concession into a constitutional right. With all due respect to the Attorney General's Office, I suggest that it has neither the power to define constitutional law nor the power to bind the Legislature on such issues. On the first point, it is clear that this Court, not any member of the Executive Branch, is the final arbiter of the meaning of the Constitution. Smith v. State, 118 N.H. 764, 768 (1978). On the second point, it is established that where matters are uniquely within the purview of the legislative branch (and, I suggest, Article 83, Part II establishes that education is one of those things), the Attorney General has no authority to waive the rights of the Legislature. See, e.g., LaRoche, Administrator v. Doe, 134 N.H. 562 (1991) (sovereign immunity). In fact, since the Attorney General has recently taken the position that his office need not defend the Legislature when the constitutionality of a statute is called into question, one cannot presume that he even speaks for the Legislature in such a situation. See Petition of Michael Mone, 143 N.H. 128 (1999). Consequently, regardless of the Attorney General's concession, it is incumbent upon the Plaintiffs to independently establish the existence of a constitutional defect in the State' s educational system.

The Plaintiffs, however, completely fail to carry this burden in their current motions. Without making any reference to or analyzing the State's pre- Claremont educational system- much of which remains intact even after the passage of HB 1075 and HB 117 ⁷ - the Plaintiffs simply adopt the Attorney General's concession as a given and argue that the failure of the Legislature to adopt the accountability provisions of the ABC Plan ipso facto establishes a violation of the State's supposed duty to "implement a definition of educational adequacy''. Memorandum of Law in Support of Petitioners ' Motion for Sanctions, p. 6. Nowhere in Claremont I or Claremont II, however, did this Court declare unconstitutional the State's existing system for the delivery of education.

More importantly, where is it established that the State has any such duty? Claremont I held "that part II, article 83 imposes a duty on the State [1] to provide a constitutionally adequate education to every educable child in the public schools in New Hampshire and [2] to guarantee adequate funding.'' Claremont School District v. Governor, 138 N.H. 183, 184 (1993). Claremont II held that (1) the State Board of Education's definition of educational adequacy "does not sufficiently reflect the letter or spirit of the State Constitution's mandate'', and (2) "the present system of financing public education [is] unconstitutional''. Claremont School District v. Governor, 142 N.H. 462, 471 & 476 (1997). These decisions did not hold that the State has a constitutional duty to guarantee that its educational system will produce educated citizens.

It is one thing for this Court to decide that the Constitution requires the Legislature to define the goals of the State's educational system and to provide the money to fund these goals. Despite the serious Separation of Powers issues which such a decision entails, the nature of the issues (what is an adequate education and how much does it cost) is somewhat cabined. It is another kettle of fish, however, for the Court to decide that the Constitution requires that the Legislature actually achieve a particular result or that it carry out its task in a particular manner. That type of a decision would open the floodgates to litigation by every disgruntled parent who claims that the State has "broken its promise'' to adequately educate his or her child.

How to deliver an adequate education is an infinitely more contentious issue than how to define it or how to pay for it.⁸ The debate over this issue is just as active in New Hampshire as it is anywhere else. See, e.g., Doreen Stern-Gordon, A Proposal to Improve Instruction and Advance Student Learning Across New Hampshire, Book IV, IDEAS FOR NEW HAMPSHIRE (Josiah Bartlett Center for Public Policy, 1997). ⁹ In fact, this is presumably why the recommendations of the Adequate Education and Education Financing Commission created by HB 117 are not expected to be fully implemented until the year 2004. See RSA 198:49V.

This Court was not unaware of the extreme differences of opinion which the issue of educational means can generate among conscientious people of goodwill on all sides of the debate. "We emphasize that the fundamental right at issue is the right to a State funded constitutionally adequate public education. It is not the right to horizontal resource replication from school to school and district to district. The substance of the right may be achieved in different schools possessing, for example, differing library resources, teacher-student ratios, computer software, as well as the myriad tools and techniques that may be employed by those in on-site control of the State's public elementary and secondary school systems.'' Claremont School District v. Governor, 142 N.H. 462, 473-4 (1992).

Thus, I suggest that the Plaintiffs are attempting to convince this Court to jump in media res before the Court has even decided to cross the threshold. As the US Supreme Court cautioned when invited to make the same leap,

[T]his case involves the most persistent and difficult questions of educational policy, another area in which this Court's lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at state and local levels. Education, perhaps more than welfare assistance, presents a myriad of "intractable economic, social and even philosophical problems''. The very complexity of the problems of financing and managing a statewide public school system suggests that "there will be more than one constitutionally permissible method of solving them'', and that, within the limits of rationality, "the legislature's efforts to tackle the problems'' should be entitled to respect.

San Antonio School District v. Rodriguez, 411 U.S. 1, 42 (1974).

Moreover, neither Claremont I nor Claremont II require that New Hampshire's educational delivery system delivery system be dictated by the State. Despite the implicit assumption in the Plaintiffs' position on this issue that the Constitution mandates a State- controlled delivery system, Article 83, Part II of the Constitution says no such thing. It merely enjoins the legislators and magistrates to "cherish'' the interests of literature, etc. There is nothing in the language of that provision which states or even implies that the State may not satisfy its duty of cherishing education by delegating some of its responsibilities to its political subdivisions, i.e., local school districts.

It requires no citation of authority to establish the proposition that local cities, towns and school districts in New Hampshire are creatures of the State and that they are generally subject to its unrestricted regulation. Accordingly, the Legislature may exercise its plenary powers either directly at the State level or indirectly by delegation to the State's political subdivisions. Even some responsibilities which are prescribed by the Constitution as State responsibilities may be delegated. E.g., Boehner v. State, 122 N.H. 79 (1982) (placement and funding of District Courts); Gooch v. Exeter, 70 N.H. 413 (1900) (appointment and compensation of civil officers). Indeed, in some cases, the Constitution even requires that certain State functions be carried out by local municipalities. E.g., Article 32, Part II, NH Const. (election of governor, council and senators). See generally, Claremont School District v. Governor, 142 N.H. 462, 480-1 (1997) (Horton dissent).

It is true that some State responsibilities may not be so delegated. As this Court recently decided in Opinion of the Justices (Tax Plan Referendum) , 143 N.H. ___, ___ (1999), the Legislature may not submit to local referendum a statute "affecting the whole State''. On the other hand, it recognized the continued vitality of the "exception to the rule ... for localities.'' See also, Bowles v. Landaff, 59 N.H. 164, 192 (1879) ("Legislative power can be delegated to towns only in local affairs'').

What, then, is a "local affair''? One way to define it is that it involves an issue which does not require statewide uniformity. But that would simply beg a new question: what things require statewide uniformity? One possible answer is that it involves those things which are required by the Constitution to be uniform. That would certainly explain the Court's decision in Claremont II to the effect that since a tax to raise the money necessary to fund an adequate education is a State tax, Article 5, Part II of the Constitution requires that the tax be proportional, i.e., uniform, throughout the State. Accordingly, taxes designed to fund an adequate education may not be submitted to the vote of each local school district, with the attendant possibility that this would cause them to vary from district to district.

But, for the following reasons, that would not be a completely satisfactory resolution of the problem. On the one hand, non-delegability might be limited under such a theory only to matters of State taxation. See, Gould v. Raymond , 59 N.H. 260 (1879); Bowles v. Landaff, 59 N.H. 164 (1879). This is because, except with respect to state taxation, there is no requirement in the Constitution that laws be uniform throughout the State. See, e.g. , Opinion of the Justices, 102 N.H. 240, 242 (1959); Canaan v. District , 74 N.H. 517, 547 (1908); State v. Griffin, 69 N.H. 1 (1896). See also, Article 28-a, Part I, NH Const. (permitting unfunded State mandates to be approved by local referendum).¹⁰ On the other hand, there are suggestions in this Court's opinion in Claremont II and in its advisory opinion on the ABC Plan that even if there were no Article 5, Part II of the Constitution, the funding of an adequate education through taxation might still be required to be uniform throughout the State. Claremont School District v. Governor, 142 N.H. 462, 476 (1997) ("Imposing dissimilar and unreasonable tax burdens on the school districts creates serious impediments to the State's constitutional charge to provide an adequate education for its public school students.''); Opinion of the Justices (School Financing), 142 N.H. 892, 902 (1998) ("[I]t is basic to our collective well-being that all citizens of the State share in the common burden of educating our children.'')

I suggest that the key to distinguishing State from local affairs and, therefore, to evaluating the permissibility of delegation lies not only in the text of the Constitution but also in our customs and traditions. As this Court stated in Opinion of the Justices (Tax Plan Referendum), 143 N.H. ___, ___ (1999): "In New Hampshire, this exception [for local affairs] is implied from the tradition of local self-government. (citations omitted) Even under this exception, however, the scope of what may be delegated is limited: the legislation must involve matters of local concern.'' To decide what involves "matters of local concern'', therefore, one must look not only to the Constitution, but also to history. See generally, State v. Hayes, 61 N.H. 264 (1881).

When it comes to education funding - at least within the threshold of adequacy - we not only have constitutional authority for non-delegability (Article 83, Part II, as impacted by Article 5, Part II), but we also have the benefit of a supporting historical experience. As is now much better understood than even when the opinion in Claremont I was written by this Court, the New Hampshire Legislature, from 1789 through 1939, has consistently imposed a minimum property tax for the support of education. ¹¹ See generally, Douglas E. Hall, Lessons From New Hampshire: What We Can Learn From the History of the State's Role in School Finance 1642-1998 (NH Center for Public Policy Studies, April 1998); Karen Alexander, Brief Report on the History of School Funding in the State of New Hampshire (report submitted to Legislature by Rep. Frank Sapareto, March 17, 1998); Walter A. Backofen, New Hampshire's Education Reform Act of 1789 and the Next One Hundred and Thirty Years (Lord Timothy Dexter Press, East Plainfield, N.H., March 15, 1998). Although the School Tax was collected and spent locally (i.e., there was no redistribution among towns), the tax rate was set by the State and it was applied equally and uniformly to all property owners in the State. Was this a State tax or was it a local tax? That depends upon how some defines such things. See generally , Boston, Concord, Etc. Railroad v. State, 60 N.H. 87 (1880); State v. Express Co., 60 N.H. 219 (1880). Perhaps most importantly, so long as it existed, the School Tax was treated as a State tax by the Legislature and, therefore, it probably is appropriate that we recognize it as such. See, e.g., Opinion of the Justices, 4 N.H. 565, 571 (1828); Tucker v. Aiken, 7 N.H. 113 (1934); School District No. 1 in Danville v. Sanborn, 25 N.H. 34, 28 (1852). Compare, RSA 198:1, with RSA 78:20.

Claremont II, of course, took these facts and gave them a new twist. It held that any tax which supported an adequate education must be a State tax. Consequently, even though there has been no School Tax since 1939, the Court in essence held that there must always be one. Although many constitutional scholars and historians dispute the Court's leap of logic, that is water over the dam and Claremont II is now the law of the land.

On the other hand, this Court has never held that the delivery of education, as opposed to its funding, must be the subject of State command and control and cannot be delegated locally. In fact, the Court has said just the opposite. For example, in Holt v. Antrim, 64 N.H. 284, 286 (1887), the Court expressly stated that "Local education is a local purpose for which legislative power may be delegated to towns.'' Likewise, in State v. Hayes , the seminal case on the delegability of State functions to localities, the Court cites with approval numerous examples of legislative delegation of authority to towns, cities and school districts with respect to matters pertaining to the operation of schools. 61 N.H. 264, 325, 334 & 336 (1881).

These statements by the Court are amply supported by history. From the very beginning, the delivery of education has been a local matter. See generally , G. Bush, HISTORY OF EDUCATION IN NEW HAMPSHIRE (1898). Beginning with the Great Act of 1647, when New Hampshire was a part of the colonial province of Massachusetts, each town of 50 or more households was required to appoint its own teacher for its own school children. This principle was reaffirmed by the province of New Hampshire when it separated from Massachusetts in 1693. See Claremont School District v. Governor, 138 N.H. 183, 189 (1993). Soon after the adoption of New Hampshire's Constitution of 1784, on June 18, 1789, the Legislature repealed all existing school laws and required that the Selectmen of each town should assess upon the inhabitants thereof a specified tax which "shall be applied to the sole purpose of keeping an English Grammar School or Schools for teaching reading, writing and arithmetic, within the towns and parishes for which the same shall be assessed''. Volume 5, Laws of New Hampshire - First Constitutional Period, p. 449-450. See also , "An Act for Regulating Towns and the Choice of Town Officers'', February 8, 1791, id. at ____.

Although local school districts, run by prudential committees, were created for the purposes of raising money to build and repair schoolhouses, the responsibility for appropriating monies for the general support of education and the responsibility for hiring teachers continued to be delegated to local selectmen until 1827. School District No. 7 in Auburn v. Sherburne , 48 N.H. 52, 55 (1868). Thereafter,

By successive changes in the acts of 1827, 1829, and the Revised Statutes in 1842, the whole duty of appropriating money to the support of schools has been transferred to the school districts and the officers of the districts. The money is required to be paid over to the prudential committee, and that officer is charged with the duty of appropriating it. After payment to him the selectmen have no control of the money, nor any official responsibility for it. Prudential committees were first chosen under the law of 1829, and under the law they were charged with the duty of hiring teachers, etc. But further important changes were made by the Revised Statutes. By them it was first provided that every school district should be a body politic and corporate, with power to sue and be sued, and to take, hold, manage and convey real and personal property for the use of the district. Rev. Stats. ch. 70, Sec. 1. And by ch. 73, Sec. 10, the district is made liable for the wages of teachers and for all contracts lawfully made by the prudential committee; and provision was also then made for satisfying judgments recovered against school districts. [Ibid.]¹²

It was against this backdrop that the Constitutional Convention of 1850 was held. This was an exceedingly important event in this State's constitutional history. No constitutional convention had been held and, except for several amendments which had been adopted in 1792, no amendments to the New Hampshire Constitution had been adopted in the sixty-five years since the Constitution had originally been ratified in 1784. As this Court itself noted in its decision in Hale v. Everett, 53 N.H. 9, 173 (1868), "The convention was a very remarkable assembly of the highest learning and ability of the state, both the political parties of the time being amply represented in it by men of experience and distinction in public affairs.'' See also , William Plumer, The Amended Constitution of New Hampshire With Resolutions for Submitting the Amendments to the People (1851) (State Law Library, manuscript). Indeed, the person elected presiding officer of the convention was none other than Franklin Pierce, a future President of the United States. Suffice it to say, therefore, that the delegates to this Convention were very familiar with the history of New Hampshire, including the fact that, from well before the adoption of the New Hampshire Constitution until well into the middle of the 19th Century, the State had very little to do with the actual "delivery'' of education in New Hampshire.

As this Court has observed on numerous occasions, the understanding of delegates to a constitutional convention with respect to the meaning of the Constitution and the need to amend it in order to achieve some different meaning is of significant aid to the Court in its role as the final interpreter of the document. Opinion of the Justices (Tax Plan Referendum) , 143 N.H. ___, ___ (1999). The Court has also noted that the understanding of the delegates is especially persuasive when they also happen to "serve in one of the branches of government'', as was certainly the case here. Warburton v. Thomas, 136 N.H. 383, 390-391 (1992). Finally, this Court has had occasion, in another context, to expressly interpret a provision of the Constitution on the basis of an amendment proposed by the Constitutional Convention of 1850. Opinion of the Justices , 102 N.H. 75, 78-79 (1959).

One of the proposals to amend the Constitution which the Convention of 1850 adopted was to strike Article 83, Part II out of the Constitution and to replace it with the following three new sections:

PROPOSAL #XI

Art. 89. The Legislature shall make provision for the establishment and maintenance of free common schools at the public expense, and for the assessment and collection, annually, in the several towns and places in this State of a sum not less than One Hundred Twenty-Five Dollars for every dollar of state taxes apportioned to them respectively, to be applied exclusively to the support of such schools.

Art. 90. The supervision of public instruction shall be vested in a state superintendent, and such other officers as the Legislature shall direct.

Art. 91. The State Superintendent shall be chosen biannually by the qualified electors of the state in such manner as the Legislature shall provide; his powers, duties, and compensation shall be prescribed by law.

Were we left with the mere language of the Convention's Proposal #XI, this evidence alone would provide only modest support for the proposition that Article 83, Part II was not originally understood to mandate State control of the delivery of education. However, much more substantial evidence in fact exists. In a written report rendered to the Convention on November 21, 1850, the Committee on Education laid out in great detail the reasons for its proposal to require the appointment of a State Superintendent of Education. The language of the report on the question at hand is quite instructive:

While free schools are admitted by all to be indispensable to our security and prosperity as a people, there is not the same unanimity of sentiment with reference to the best methods of improving and superintending them. Many men think that the powers already conceded to the Legislature by the Constitution are entirely adequate to the wants of the people. The resolution which the committee have agreed to offer for the consideration of the Convention does not confer new power upon the Legislature, but it proposes to make that permanent which is now changeable; to make that imperative which is now optional . It makes it incumbent upon the people to elect, from time to time, at least one officer who shall devote his time and talents to the great work of public education. .... It will be readily admitted to be essential to the success of any system of State policy, that there shall be unity of purpose and unity of action in those who execute the decrees of the people. When a corporation is chartered, the stockholders are careful to elect a superintendent who will attend faithfully to their interests and devote himself entirely to the duties of his office. The oversight of common schools requires the same unity in counsels, the same devotion to professional laborers and the same executive energy. .... Let him devise the best methods of securing good school houses, good teachers and good books. Let him study school architecture and bring before the people the most approved modes of constructing, warming and ventilating school houses. .... With reference to a State superintendent, some gentlemen prefer to leave the power where it now is, so that future Legislatures may or may not appoint such an officer, as they please. This leaves the interest of education entirely at the mercy of party leaders. .... If the office of Superintendent be made a constitutional one, it will be beyond the reach of faction or comprise. Its influence will be constantly increasing because the materials of usefulness must accumulate in a department of State, which is permanent. [Journal of the Constitutional Convention of 1850, p. 91-100 (State Archives) (emphasis supplied)].

It is thus quite clear that the members of the Constitutional Convention of 1850 never understood Article 83, Part II of the Constitution to require the type of State supervision of local school districts and/or direct regulation of educational policy and delivery which the Plaintiffs now advocate. This does not mean that the State is precluded from taking over the entire administration of education in New Hampshire. On the contrary, New Hampshire is not a home rule state and, therefore, the Legislature is free to exercise as much control over education as it wishes. See, e.g., School District No. 7 v. Sherburne, 48 N.H. 52 (1868); Coleman v. School Board of Rochester, 87 N.H. 465, 466-70 (1936) (describing reorganization of N.H.'s education system in 1919, including formation of the State Board of Education, and holding that local school district rules must be approved by the State Board in order to be effective); Perkins v. Langmaid, 34 N.H. 315 (1857) (referring to power of the State to allow the re-drawing of school district boundaries); Trustees of Dartmouth College v. Woodward, 1 N.H. 111 (1818).¹³ On the other hand, in the words of the Report of the Committee on Education quoted above, what the Plaintiffs are attempting to do with their current round of motions is "to make that imperative which is now optional''.¹⁴

C. What is an "Adequate'' Funding Level for an Adequate Education?

The final adequacy issue which the Plaintiffs desire to have transferred to a master for factfinding is the adequacy of funding. What is so incredible about this proposal is that the Plaintiffs make no direct challenge to the merits of the Legislature's substantive determination of the cost of an adequate education. Nowhere in the Plaintiffs' pleadings or supporting memoranda does one find any claim that $825 million is not enough to fund an adequate education in New Hampshire. Instead, the Plaintiffs' sole assault is upon the methods devised by the Legislature in HB 117 to calculate the $825 million.

For example, in arguing for sanctions, they claim that "the methodology used by the State to determine the cost of an adequate education in HB 117 is severely flawed in numerous areas and is nothing more than a mechanism to calculate a predetermined amount of money that is based entirely upon a political desire to keep the State's financial obligation below a certain level.'' Memorandum of Law in Support of Petitioners' Motion for Sanctions, p. 9. Likewise, in arguing that the Court should refer the question of the cost of an adequate education to a factfinder, the Plaintiffs advise the Court that, "The reliance on a single outcome factor, the choice of districts and the use of the lower spending districts in the quintile are decisions that petitioners will challenge in the second phase of the proposed litigation concerning remedy, because all of these decisions are subject to expert proof and require factual development.'' Memorandum of Law in Support of Motion for Procedural Order, p. 11. At no point, however, do the Plaintiffs come right out and say that the $825 million figure which was derived by application of these supposedly flawed factors is just too small.

To paraphrase Macauley, the Plaintiffs' challenge to HB 117's methods of calculation is "all sail and no anchor''.¹⁵ Without an articulated, supportable claim that $825 million is insufficient to fund an adequate education, what difference does it make how the Legislature arrived at its figure? If $825 million is "adequate'' (or perhaps even more than adequate), it should make no difference whether the Legislature derives its figure from some scientific formula or from an astrological chart. The issue is whether or not the Legislature has satisfied its constitutional duty to cause the State to provide "an adequate level of resources for all students in New Hampshire''. Claremont School District v. Governor, 142 N.H. 462, 476 (1997).

The universal prerequisite for making a legal challenge to a putatively illegal act of government is a showing of harm. A subset of this principle is that individual miscalculations are not actionable unless there is a net prejudice to the complaining party. E.g., Stearns v. O 'Dowd, 78 N.H. 358, 363 (1917) (individual errors in counting ballots are not cause for voiding election unless counting them properly would change the result). This is especially the rule in tax cases, where the law is clear that a taxpayer is not entitled to an abatement unless his total tax burden is disproportionate to the burden imposed upon other taxpayers, regardless of individual errors which may have gone into that total. Amoskeag Mfg. Co. v. Manchester, 70 N.H. 200 (1899) and 336 (1900). As this Court has said, "Justice does not require the correction of errors of valuation whose joint effect is not injurious to the appellant.'' Edes v. Boardman, 58 N.H. 580, 588 (1879). In other words, no harm - no foul.

The Plaintiffs complain that the $825 million number "is the result of nothing but sheer political negotiations''. Memorandum of Law in Support of Petitioners' Motion for Sanctions, p. 9. Even if that were so, it would not be unusual; political compromise is the hallmark of the legislative process. We all know the old saying: "There are two things that you don't want to see how they are made: the first is sausage and the other is the law.''

As the Supreme Court of the United States recently remarked, "Judicial deference [to the legislature], in most cases, is based not on the state of the legislative record Congress compiles but `on due regard for the decisions of the body constitutionally appointed to decide.' (citation omitted) As a general matter, it is for Congress to determine the method by which it will reach a decision.'' City of Boerne v. Flores, 138 L. Ed. 2d 624, 646 (1997) (emphasis supplied). This Court said much the same thing in Seabrook Citizens v. Yankee Greyhound Racing, Inc., 123 N.H. 103, 110 (1983): "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 employed in the adoption of the questioned statute. 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."

Absent a violation of a specific constitutional provision - none of which are called into question by the case at bar - there are no constitutionally-imposed procedural requirements for the making of laws in New Hampshire. For example, the Legislature has no responsibility to personally notify persons who may be affected by pending legislation when such legislation is about to be acted upon. State v. 4.7 Acres of Land , 95 N.H. 291, 294-5 (1948). See also, Kerouac v. Town of Hollis , 139 N.H. 554, 560-1 (1998). Indeed, there is not even any constitutional requirement that proposed legislation be preceded by a hearing to which members of the general public are invited. E.g., Brouillard v. Atwood, 116 N.H. 842, 845 (1976); Opinion of the Justices, 63 N.H. 625 (1885). As this Court observed many years ago, "There is nothing in the constitution prescribing the method which [a legislative body] must adopt to acquaint themselves with the contents of any proposed measure before its passage.'' Opinion of the Justices, 76 N.H. 601, 604 (1911). ¹⁶

Indeed, I suggest that the Plaintiffs' effort to go behind the substance of HB 117 and to inquire into the manner it was passed is expressly forbidden by the Constitution. Articles 22 and 37, Part II of the Constitution specifically provide that each house of the Legislature shall determine its own "rules of proceedings''. This Court has held, on numerous occasions, that these provisions mean exactly what they say. E.g., Seabrook Citizens v. Yankee Greyhound Racing, Inc., 123 N.H. 103, 110 (1983) ("[I]t remains for the legislature to establish the rules and procedures applicable to the legislative process.''); Opinion of the Justices, 76 N.H. 601, 604 (1911).

Finally, whether or not the $825 million established by HB 117 was "based entirely upon a political desire to keep the State's financial obligation below a certain level,'' as asserted by the Plaintiffs, is irrelevant to its validity; the motives which actuated the Legislature have no effect upon the legitimacy of its acts. As this Court has held in numerous cases, the good faith or bad faith of the Legislature is not a matter to be inquired into. Boehner v. State, 122 N.H. 79, 85 (1982) ("Indeed, our task is not to second-guess the legislature or question the factors which went into its decision.''); Opinion of the Justices, 102 N.H. 80, 84 (1959) ("[t]he reason for [one house] refusing to concur [with the acts of the other house] are not subject to judicial scrutiny''); Coleman v. School District of Rochester , 87 N.H. 465, 471 (1936) ("The general rule is that if a law is valid when its maker is actuated by right motives, it is equally so when he is not.''); Opinion of the Justices, 84 N.H. 559, 581 (1930) ("If the act be within the authority granted, the motive inducing its passage is immaterial.''); Curry v. Spencer, 61 N.H. 624, 631 (1882) ("But within the limits of legislative authority, we have nothing to do with . . . motives . . .'' ).

I suggest that the reason the Plaintiffs so assiduously avoid any direct attack upon the Legislature's determination of $825 million as the cost of an adequate education is the same reason that they rely exclusively upon the Attorney General's aforementioned concession in formulating their claim as to the Legislature's alleged failure to properly devise an educational delivery system. That is because the Plaintiffs are incapable of offering to this Court any principled basis upon which it could judge the acts of the Legislature unconstitutional. In other words, even though the Plaintiffs' attorneys have been wracking their brains on this issue for months, they cannot come forth with any reasonably objective standard by which this Court can determine the cost of an adequate education. Thus, the ploy is to avoid the issue for now, get this Court to refer the matter for factfinding, see if they can gin up a bunch of "experts'' to make a credible record, and then see if they can get the Court to place its constitutional imprimatur upon the result.

When one examines the hurdles which a party would have to overcome in order to provide this Court with a meaningful, objective standard by which to review the Legislature's determination of an adequate level of funding for education, one can readily comprehend why the Plaintiffs in this case have attempted to avoid the issue. Although this Court's Claremont decisions have, for better or for worse, established that the adequacy of educational funding is justiciable, one must admit that such an issue tests the limits of the Judiciary' s power and competence.

Justiciability is customarily defined in terms of the so-called "political question'' doctrine. The classic statement of that doctrine is a passage in the United States Supreme Court case of Baker v. Carr, 369 U.S. 186, 209 (1962), in which the Court set forth six criteria by which to gauge whether a case involves a political question:

1. "A texturally demonstrable commitment of the issue to a coordinate political department;''

2. "A lack of judicially discoverable and manageable standards for resolving it;''

3. "The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;''

4. "The impossibility of a court's undertaking independent resolution without expressing lack of respect to coordinate branches of government;''

5. "An unusual need for unquestioning adherence to a political decision already made;'' and

6. "The potentiality of embarrassment from multifarious pronouncements by various departments on one question.''

Quoted from Powell v. McCormack, 395 U.S. 486, 518 (1969).

As noted by the Court in Baker v. Carr, "The nonjusticiability of a political question is primarily a function of the separation of powers.'' Id. at 210. And, quite obviously, judicial oversight over the "adequacy'' of educational funding has daunting Separation of Powers implications. To begin with, only the Legislature has the authority to pass laws. Article 5, Part II, NH Const. Likewise, a special prerogative of the Legislature is the raising of taxes and the determination of where and how such tax money is to be spent. Article 28, Part I; Article 5, Part II; and Article 6, Part II; NH Const. And finally, the spending power is consigned to the Executive. Articles 5 & 56, Part II, NH Const. In the recent advisory opinion rendered by this Court on the constitutionality of a referendum, an issue which was occasioned by the Legislature's efforts to comply with the Court's Claremont decisions, this Court reaffirmed the primacy of the Legislature in matters of law-making and tax-raising. Opinion of the Justices (Tax Plan Referendum), 143 NH ____ (1999). See also, Hampton v. Marvin, 105 NH 34, 36 (1963); Morrison v. Manchester , 58 NH 538, 549 (1879); Mack v. Jones, 21 NH 393 (1850); Brewster v. Hough, 10 NH 138 (1839).

Another of Baker v. Carr's political question criteria, the lack of manageable standards for the making of a decision, sets up an equally formidable barrier to the justiciability of an "adequacy'' question. This is the type of problem which faces a court when it is asked to answer the classic political question: what is the proper form or structure of government? E.g., Tiews v. Timberlane Regional School District , 111 NH 14, 18 (1971) ("[I]t is not the province of the judicial branch of government to decide among competing theories of government.''); cf. The Dublin Case, 38 N.H. 459, 509-10 (1859) ("What is theologically true in religion it is agreed on all hands that the court are not competent to decide; nor have they power to determine what is really and intruisically substantial and essential in matters of doctrine''.) See also, Worcester v. Georgia, 31 U.S. 515, 592 (1832) (what constitutes a separate Indian nation); Luther v. Borden, 48 U.S. 1 (1849) (what is a "republican form of government''). Such structure-of-government issues are often close to the surface when a court undertakes to review the apportionment of representation within a legislative body. See, e.g., Opinion of the Justices, 111 NH 146, 150-1 (1971) (propriety of multi-member versus single-member districts). See also, McGovern v. Secretary of State, 138 NH 128 (1993); Monier v. Gallen, 122, NH 474 (1982); Levitt v. Maynard, 105 NH 447 (1964); Opinion of the Justices, 105 NH 125 (1963). Even more complex are the affirmative action cases in which a reapportionment is ostensibly proposed to compensate for past racial discrimination. See, e.g., Abrams v. Johnson, 138 L.Ed. 2d 285, 322 (1997) (Breyer dissent) ("It seems particularly difficult...to find principled legal answers to what, in the redistricting context, are traditionally political questions.'' )

A good example in the non-constitutional context of how a lack of objective standards creates a problem of justiciability is zoning. For example, in the case of Caspersen v. Town of Lyme, 139 NH 637 (1995), the owners of certain real property in the Town of Lyme challenged the Town's fifty acre minimum lot size requirement in its zoning ordinance. The plaintiffs claimed that requiring fifty acres was a violation of due process of law. In rejecting their claim, this Court held that, "There is no arbitrary maximum lot size controlling a substantive due process analysis.'' In other words, the Court was acknowledging that it was not capable of determining how big was too big. See also, e.g., Britton v. Town of Chester , 134 NH 434, 441-2 (1991) ("It is not, however, within the power of this court to act as a super zoning board.'')

Note that this Court has expressed its concern over the lack of manageable standards in a number of contexts which specifically involve questions of "adequacy'', the very subject at issue in this case. For example, in State v. Robert H. , 118 NH 713 (1978), the Court declined to construe a statute in a manner which would require the Judiciary to decide what is " inadequate'' parenting. Even more to the point, in Petition of Strandell , 132 NH 110 (1989), the Court refused to order the Director of the Division of Mental Health to transfer legislatively appropriated monies from one account to another in order to provide "sufficient'' funding to satisfy the alleged needs of a certain class of the Division's developmentally disabled clients. Among other things, the Court observed that, "It would be improvident for this court to find the application of [certain statutes and regulations] to be mandatory in all circumstances, because to do so would be to substitute the judgment and control of the court for the judgment and control of those who are by law vested with the responsibility of administering these programs.'' Id. at 122. See also , Lampert v. Town of Hudson, 136 NH 196, 200 (1992) (suggesting that a requirement in a zoning ordinance that a property owner is responsible for securing "adequate provisions'' in order to meet certain enumerated general requirements in the ordinance "may be considered ambiguous''.) ¹⁷

As the Plaintiffs well know, this Court has never held that the Legislature has failed to meet its constitutional responsibility to fund anything. This not to say that the Court has never stated that it lacked the power to make such a determination in a proper case; on the contrary, there are implications in several cases that the Court does in fact believe that it has such a power. Petition of Michael Mone, 143 NH 128, 139, (1999); Smith v. State, 118 NH 764, 771 (1978); Daniels v. Hanson, 115 NH 445, 451-2 (1975). On the other hand, even the dictum in such cases fails to articulate any standard upon which the Court could base such a decision.¹⁸

Any attempt to second-guess the Legislature with respect to an "adequate'' level of funding for education is fraught with the same indeterminability as is presented by any other adequacy case.¹⁹ To begin with, what is an appropriate level of funding for education cannot be determined in a vacuum. The State's fisc is subject to innumerable, worthy, competing claims for public monies, only one of which is education. As noted by Judge Easterbrook, writing for the Court in Archie v. City of Racine, 847 F 2d, 1211, 1224 (7th Cir. 1988),

[Government] may decide to spend more on parks or museums and less on rescue, even though its officials know that recreation and education are coming at the expense of health. It may do this without subsequently answering in damages to people who subsequently expire before they reach a hospital. People through the democratic process may choose more or less safety by altering their support of the fire department, the police, the courts, schools, social welfare programs, and programs of safety inspections. This choice is one without a single right answer, and therefore one for the political rather than the judicial branches.

The Plaintiffs would surely respond to the foregoing by saying that Claremont has established that Article 83, Part I of the New Hampshire Constitution gives education a trump over all other public expenditures. I respectfully urge this Court to take great care before following the Plaintiffs down this intellectual road. Article 83, Part I of the Constitution speaks about many things. Not only are "public schools'' mentioned, but there is also reference to "agriculture'', "arts'', "sciences'', "commerce'', "trades'', "manufacturers'', "natural history'', and "the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections, and generous sentiments''. No distinction is made between any of these designated beneficiaries of the public largesse with respect to the nature of the State's responsibility; all are prefaced with the phrase "it shall be the duty of the legislators and magistrates, in all future periods of this government, to ....'' If, therefore, we take seriously this Court's holding in Claremont I that the phrase "shall be the duty'' is no mere statement of aspiration, but is instead a command to the State, the day will surely come when it will be argued before this Court that each of the social policy objectives enumerated in Article 83 has constitutional stature. Although the Court may be able to devise some artful way to articulate reasoned distinctions among these provisions, prudence would dictate that the Court not get unnecessarily over-committed in advance to any notion of an educational trump. ²⁰

It should be understood that there would be a substantial historical basis for the proposition that the non-educational provisions of Article 83, Part II were taken just as seriously by the Framers as were the educational provisions. For example, Article 83 enjoins the legislators and magistrates to cherish the interests of "literature and the sciences''. History reveals that the Framers did not limit the promotion of literature and the sciences to the curricula of the public schools. For example, in the immediate post-constitutional period, the Legislature passed many statutes to establish libraries to be funded at the public expense. E.g., Vol. 6, Laws of New Hampshire - Second Constitutional Period, p. 399-400 (Chester Library); 401-2 (New Durham Library). Virtually all of these statutes begin with a preamble reciting the value of the "general diffusion of useful knowledge'' which "in a land of liberty has a happy tendency to preserve freedom and make better men and better citizens.'' Fairly obviously, this is language which comes from Article 83, Part II of the Constitution. Indeed, the preeminent contemporaneous New Hampshire historian of that period took the occasion in his oft-quoted work to take the Legislature to task for not having done enough to satisfy its constitutional responsibilities to promote, fund and stock the State's public libraries. Vol. III, JEREMY BELKNAP'S NEW HAMPSHIRE - AN ACCOUNT OF THE STATE IN 1792, p. 247-8 (G.T. Lord ed. 1973; originally published in 1812). See also, id. at 221.

Interestingly enough, Belknap's famous history was itself involved in another aspect of the Legislature's constitutional duty to cherish literature. For it was under the specific authority of Article 83 that Jeremy Belknap importuned the New Hampshire Legislature to pay for the printing of his book. Id. at Introduction, p. XVIII-XIX & XXXII. Although Belknap apparently never received as much as he claimed in costs, the Legislature did in fact authorize the expenditure of public funds for the publication of his history of New Hampshire. Vol. XXII, State Papers, p. 102 & 365.

Another example of the reach of Article 83 comes from the man who is generally regarded as the principal author of its Massachusetts counterpart, John Adams. See McDuffy v. Secretary of the Executive Office of Education , 415 Mass. 545, 615 N.E. 2d 516, 533-4 & n. 39 & 40 (1993); MANUAL OF THE CONSTITUTION, p. 94-99. In a letter that Adams wrote on August 7, 1805 to Benjamin Waterhouse, he made specific reference to his drafting of the Encouragement of Literature clause in the Massachusetts Constitution:

As the words flowed from my pen, from the heart in reality rather that the head, in composing this paragraph, I could not help laughing, to myself alone in my closet at the oddity of it. I expected it would be attacked in the convention from all quarters, on the score of affectation, pedantry, hypocrisy, and above all economy. Many ideas in it implied expense : and I knew then as well as I have known since that too large a portion of the people and their representatives had rather starve their souls than draw upon their purses to pay for nourishment of them; and therefore no mercy was to be expected for a paragraph that I would not now exchange for a scepter, and wish may be engraved on my tombstone.

But to my great surprise, instead of objections, it was received with applause and adopted I believe with unanimity, and without any amendment. Even the natural history of the country received no opposition ....

THE SELECTED WRITINGS OF JOHN AND JOHN QUINCY ADAMS, p. 147 (Adrienne Koch & William Peden, eds. 1946). For Adams, therefore, the "natural history'' provision was no idle inclusion and was just as worthy a candidate for participation in the public budget as anything else. See also, THE WORKS OF JOHN ADAMS p. ___ (Charles Francis Adams, ed. 1851) ("I was somewhat apprehensive that criticism and objections would be made to the section, and particularly that the `natural history', and the `good humor' would be stricken out; but the whole was received very kindly, and passed the convention unanimously, without amendment.'')

Finally, a review of the statutes passed within the first several decades after the adoption of the Constitution of 1784 reveals numerous acts designed "for the promotion of agriculture, arts, sciences, commerce, trades, [and] manufactures''. Many of these reflect the early Legislatures' understanding that their adoption was pursuant to the constitutional mandates of Article 83. Moreover, if one reviews the addresses of the early New Hampshire Governors to the Legislature at the beginning of each new session and the responses of the Legislature thereto, one will find a number of references to the State's Article 83-inspired duty to support "agriculture'' and "manufactures''. See Claremont School District v. Governor, 138 N.H. 183, 190-1 (1993) (citing such gubernatorial addresses and responses as evidence of the contemporaneous understanding of the meaning of Article 83).

Even if this Court were to limit the supposed funding trump of Article 83 to education, it would be hard-pressed to further restrict the State's duty to the funding of only public primary and secondary schools. For the Court would find itself confronted with historical evidence of a duty to fund colleges and perhaps even quasi-private schools such as charter schools.

The case for colleges is quite clear. In the same clause of Article 83 in which "public schools'' are mentioned'', the word "seminaries'' appears. Numerous cases decided by this Court have held that the reference in Article 83 to "seminaries'' means colleges. E.g., Sisters of Mercy v. Town of Hooksett, 93 N.H. 301 (1945) (Mount Saint Mary College); New London v. Colby Academy, 69 N.H. 443 (1898) (Colby-Sawyer College); Warde v. Manchester, 56 N.H. 508 (1876) (a finishing school for Catholic young ladies in Manchester); Dartmouth College v. Woodbury , 1 N.H. 111 (1818) (Dartmouth College).

Dartmouth College, of course, is the most obvious case in point. Jeremy Belknap called it a "seminary of literature''. Vol. III, JEREMY BELKNAP'S NEW HAMPSHIRE - AN ACCOUNT OF THE STATE IN 1792, p. 221. In fact, it was Dartmouth's frequent, and usually successful, entreaties to the Legislature for public funding that probably provoked the Legislature's packing of its board of trustees, which, in turn, eventually led to the famous Dartmouth College case. Lynn W. Turner, WILLIAM PLUMER OF NEW HAMPSHIRE, 1759-1850, p. 303-4 & 323 (1962). See generally, Robert Remini, DANIEL WEBSTER - THE MAN AND HIS TIME, Chpt. 7 (1999). See also, Opinion of the Justices , 62 N.H. 704 (1816). Whether that be the case or not, the point is that in the College's petitions to the Legislature, "the trustees invariably stressed the constitutional mandate to `cherish the interests of ... seminaries' and declared that it was `only under the patronage [and] by the aids of the public' that the college could perform its function.'' Lynn W. Turner, supra at 247, n. 29.²¹

As far as private schools are concerned, the early statutes are also replete with instances of the Legislature chartering "academies'', which were generally high schools operated by private boards of trustees, but subject to legislative oversight. In many instances, the preamble to these statutes specifically quoted the authority of Article 83 as the basis for the Legislature's actions. E.g., Vol. 6, Laws of New Hampshire - Second Constitutional Period, p. 272-4 (Salisbury Academy, 1795) & p. 143-5 (Haverhill Academy, 1795). See also, Vol. 5, supra at p. 451-3 (New Ipswich Academy - 1789), p. 475-7 (Chesterfield Academy - 1790), p. 709-711 (Charlestown Academy - 1791), p. 729-31 (Atkinson Academy - 1791), p. 734-6 (Amherst Academy - 1791) (no citation of Article 83, but clear linguistic references to it). Although the primary public assistance offered to the academies was an exemption from real estate taxes, let it not be thought that no public monies were expended for their support. Indeed, Claremont I specifically makes reference to a resolution of the Senate and House of July 7, 1846 granting 10,000 acres of land to the trustees of Colbrook Academy. Claremont School District v. Governor, 138 N.H. 183, 141 (1993).

So, before one blithely assumes that the Judiciary's task in reviewing the Legislature's determination of the cost of an adequate primary and secondary school education is a matter which can be viewed in a vacuum, unaffected by any competing educational or other societal demands, I suggest that serious consideration be given to the issues of justiciability which are presented by the task. See generally, San Antonio School District v. Rodriguez , 411 U.S. 1 (1974). See also, Burruss v. Wilkerson, 310 F. Supp. 572 (W.D. Va. 1969); McInnis v. Shapiro, 293 F. Supp. 327 (N.D. Ill. 1968). Many of the pre-Claremont decisions of this Court reflect these very same concerns. For example, in State v. Evans, 127 N.H. 501 (1985), the Court addressed a prison inmate's claim that, under the statutes governing the Department of Corrections, including a section requiring the department to adopt rules relative to "standards for the management and operation of rehabilitation related programs, including but not limited to ... Education,'' he had a right to be provided with college-level educational courses. Declining to get involved in the allocation of resources by prison authorities, the Court rejected the plaintiff's claim as follows: "[A]n ad hoc approach to the assignment of rehabilitative or educational opportunities would require disproportionate allocation of limited resources among inmates. At best, this arrangement would simply substitute the judgment of a court for that of the legislature and prison officials, with no guarantee of net benefit.'' See also, City of Franklin v. Hinds , 101 N.H. 344 (1958) (declining to side with local board of education in educational funding dispute with local city council); Tucker v. Aiken , 7 N.H. 113, 127-8 (1834) (declining to side with local selectmen in educational funding dispute against town voters).

On the other hand, if all of this history and the judicial precedents of this Court are not sufficiently instructive on the point, I direct the Court's attention again to the Constitutional Convention of 1850. We have already discussed those provisions of the Convention's Proposal #XI which would have removed the administrative control over education from local school districts and centralized it within the State apparatus. Proposal #XI, however, contained another provision which directly relates to the question of the constitutional standard for educational funding. As noted before, Proposal #XI would have stricken Article 83, Part II and replaced it with two new constitutional provisions requiring centralization of the administration of education in the hands of a State Superintendent. In addition, Proposal #XI would have inserted the following provision in the Constitution in place of Article 83:

Art. 89. The Legislature shall make provision for the establishment and maintenance of free common schools at the public expense, and for the assessment and collection, annually, in the several towns and places in this state, of a sum not less than One Hundred Twenty-Five Dollars for every dollar of state taxes apportioned to them respectively, to be applied exclusively for the support of such schools.

As may be readily seen, this new provision would have done exactly what the Plaintiffs request this Court to do: fix the level of a constitutionally adequate education.

But if there is any doubt about the reasons for this proposed amendment to the Constitution, we are again fortunate to have a report of the Convention' s Committee on Education which explains its purpose. Like the report on the proposal to require a State Superintendent, this report was also presented to the Convention on November 21, 1850. It provides in relevant part as follows:

The legislators of New Hampshire have not been unobservant of that excellent article in our constitution, which enjoined upon them, "the encouragement of literature and the sciences, and the cherishing of all seminaries and public schools.'' Our college, our academies, our high school and our common schools, have done and are still doing much for the interests of education..... But our common schools are still far from being what they should be and might be..... Among the hindrances to the welfare and best success of schools, are the want of more convenient and commodious school houses, of teachers better qualified, and of more interest on the part of parents. If, in order to supply existing wants and remedy existing defects more pecuniary means are needed, there should be a provision in the constitution authorizing and requiring the legislature to grant them.

The sum required to be raised for the support of common schools in this State has been increased at several times, and it is now One Hundred Twenty Dollars on every dollar of the State valuation. It is desirable, we think, that this sum should be materially increased, but never made less..... Many towns do add largely to the sums required by law. But others as appears by the reports of the State Commissioners, raise no more than the law exacts. There is need, therefore, of increasing from time to time the percentage of appropriation that the children and youth in every part of the State may enjoy as nearly as may be practicable, equal advantages of education. Twenty towns out of the 230 in the State raised last year one-third part of all the money required by law for the support of common schools. The number of scholars in these towns is a fraction more than one-fifth of the whole number in the State. This fact affords an additional argument for adopting the provision of the resolution of the Convention.

Journal of the Constitutional Convention of 1850, p. 87-90 (State Archives) (emphasis supplied).

Suffice it to say that if the conventional understanding of the Constitution had been that the Judiciary was empowered by Article 83 to itself determine the cost of an adequate education and to instruct the Legislature to fund it, the delegates to the Convention of 1850 were engaging in an unnecessary act. At a minimum, the Committee on Education would have discussed such an understanding and indicated why resort to the courts was deemed insufficient. Since there was no such discussion, it seems fairly obvious that such was not the common understanding of Article 83. By the same token, if the delegates to the Convention had wanted to amend the Constitution so as to place such a power in the hands of the Judiciary, they could have proposed an amendment which would accomplish that. Again, the fact that they did not is an indication that doing so was not a favored solution.

In any case, the proposed amendment was defeated by the voters. Because no one has to state why he votes against something, we do not know why it was defeated. Consequently, we can never know exactly what the voters' understanding of Proposal #XI was or, even less, what their understanding of Article 83 was. Perhaps some of them thought that the floor for the required education tax was too high. Others probably thought it was a mistake to cast any tax figure in constitutional stone. Since Proposal #XI included both this provision and the provision for a State Superintendent, still others undoubtedly voted against the proposal because they objected to a State takeover of education. Nevertheless, one can feel reasonably secure that the citizens who went to the polls to vote on Proposal #XI would be shocked to find that the Plaintiffs in this litigation were suggesting that this Court should accomplish by judicial fiat what they in 1850 had declined to do with their ballots.

Although one can assume from the Court's assertions in Claremont I that the State has a duty "to guarantee adequate funding'' of a constitutionally adequate education (Claremont School District v. Governor , 138 NH 183, 184 (1993)) and in Claremont II that the State has a responsibility to ensure the provision of "an adequate level of resources for all students in New Hampshire'' (Claremont School District v. Governor , 142 NH 462, 476 (1997)) that the Court intended to exercise some level of judicial review over legislative educational funding decisions. On the other hand, the Court's opinions in the Claremont case are otherwise unilluminating with respect to the scope of review which it contemplates.

It is certainly not up to those of us who oppose the Plaintiffs' current motions to suggest what that standard of review ought to be. All legislative acts are entitled to a presumption on constitutionality. E.g.., Musgrove v. Parker, 84 NH 550, 551 (1931); Rich v. Flanders , 39 NH 305, 311-12 (1859). At least in the first instance, therefore, the burden is upon the Plaintiffs to put forth a standard and to state why HB 117 does not meet it. The Plaintiffs, of course, have not even attempted to satisfy this burden.

Because the Plaintiffs have not carried their burden, there is also no reason for this Court to gratuitously opine upon what test it might devise to review a legislative determination of the cost of an adequate education - when and if the issue were properly presented for judicial review. In the absence of a proper challenge, the Court can be satisfied with an application of the Justice Potter Stewart test of obscenity: "I don't know how to define it, but I know it when I see it.'' Consequently, unless this Court were able to conclude that $825 million was, on its face, a patently inadequate level of funding for a constitutionally adequate education, this Court ought to deny the Plaintiffs' Motions and terminate its jurisdiction over this case. ²²

This is exactly what the Florida Supreme Court did in a somewhat similar case entitled Coalition for Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996). As in the case at bar, the Plaintiffs in that case filed a series of rather vague pleadings which alleged, among other things, that the State of Florida had "failed to allocate adequate resources for a uniform system of free public schools as provided for in the Florida Constitution''. As in the case at bar, the Florida plaintiffs failed to offer the Court any standard by which it could judge the issue of adequacy. The Court's affirmance of the Trial Court's dismissal of the Complaint is instructive: "While we stop short of saying `never,' appellants have failed to demonstrate in their allegations, or in their arguments on appeal, an appropriate standard for determining `adequacy' that would not present a substantial risk of judicial intrusion into the powers and responsibilities assigned to the Legislature, both generally (in determining appropriations) and specifically (in providing by law for an adequate and uniform system of education.)''. Id. at 408.²³

In summary, there are powerful historical and jurisprudential reasons for this Court to exercise great caution before it embarks upon any review of the Legislature's determination of the cost of an adequate education. As the Court noted in its denial of the Plaintiffs' motion in November, 1998, "[W]e have acted in accordance with our duty to interpret the State Constitution to declare the system of financing public, elementary and secondary education in this State unconstitutional.... Now we look to the Governor and the legislature to put into effect a constitutional financing scheme so that together, in a bond of unity and amity, THE STATE OF NEW HAMPSHIRE, see Pt. II, Art. I, may move forward to constitutionally educate our children in the next millennium.'' Claremont School District v. Governor, 143 N.H. 154, 161 (1998). The Legislature and the Governor have now so acted. If that bond of unity and amity between the branches is to be preserved, this Court should demand a vastly superior showing of legislative and gubernatorial breach of constitutional duty than is presented by the current motions of these Plaintiffs.

II. THE SUPREME COURT IS NOT A FACTFINDING BODY

One of the most bizarre elements of the Plaintiffs' Motion for Procedural Order is the request that the Supreme Court appoint a master for "factfinding'' on the so-called adequacy issues. As usual, the Plaintiffs cite no authority for their request. Although this Court does possess some original jurisdiction, this case did not come to the Court pursuant to its original jurisdiction. The Court accepted the case in the exercise of its appellate jurisdiction and the Plaintiffs offer no justification for converting it to anything else.

Even in those very rare cases where the Court's original jurisdiction is properly invoked, the Court has declined to entertain a constitutional challenge to a statute where there is a dispute of fact. For example, in the recent case of Petition of Michael Mone, 143 N.H. 128, 132 (1998), the Court only agreed to accept an original writ of prohibition because "the relevant facts are readily apparent on the face of the statute, and a facial attack on a statute is justiciable.'' Similarly, the Court generally refuses original petitions for habeas corpus where there are outstanding disputes of fact. E.g., Petition of Parker, 111 N.H. 21 (1971); LaBelle v. State, 108 N.H. 241 (1967). But see, Petition of Kerry D. , 143 N.H. ___ (August 30, 1999). Even in responding to requests for advisory opinions pursuant to its authority under Article 74, Part II of the Constitution, the Court does not issue rulings on matters which require a resolution of questions of fact. E.g., Opinion of the Justices (Property Taxation of Tel. Poles), 142 N.H. 102, 107 (1997); Opinion of the Justices, 123 N.H. 510 (1983); Opinion of the Justices, 116 N.H. 358 (1976); Opinion of the Justices, 76 N.H. 601, 603 (1911); Opinion of the Justices, 70 N.H. 638 (1899); Opinion of the Justices , 45 N.H. 607, 608 & 614 (1864).

The Plaintiffs' seek to avoid the problem of the Court itself engaging in a factfinding enterprise by requesting that the adequacy issues be referred to a master. Such a procedure is only appropriate, however, in those cases where the Supreme Court possesses exclusive original jurisdiction, not concurrent original jurisdiction. See, e.g., Budnitz ' Case, 139 N.H. 489 (1995). This is obviously not such a case because it was originally filed in the Superior Court, which such court did indeed have jurisdiction over the cause of action.

Finally, even if proper application were made to this Court to convert its appellate jurisdiction in this case into an exercise of its concurrent original jurisdiction, it would be discretionary with the Court whether to grant such a request. E.g., State v. Superior Court, 116 N.H. 1, 2 (1976). "[T]he original authority of this court will be exercised only sparingly and in exceptional cases where its exercise by the Superior Court will cause undue hardship or delay to meet an emergency or is a mere formality ....'' Nelson v. Morse, 91 N.H. 177, 178 (1940) (emphasis supplied). See also, Petition of Mone, 143 N.H. 128, 132 (1998) ("[W]e will exercise our original jurisdiction ... in circumstances where the parties desire, and public need requires, a speedy determination of the important issues in controversy.'' (emphasis supplied). Since the Plaintiffs advise that it will take them at least a year to prepare their case on the adequacy issues, the case at bar is obviously not an "emergency'' and there will be no "speedy'' determination of the issues in controversy.

Although the Plaintiffs characterize their requested reference to a master as being part of the "remedy'' phase of this litigation, this is at best a misnomer. Their entire factfinding scheme is designed to litigate whether or not there is a wrong to be remedied. If HB 117 is constitutional, there is no need for a remedy. Yet this is exactly the issue that the Plaintiffs propose to have determined (at least in the first instance) by the master. Consequently, describing this procedure as part of a remedial phase is merely a subterfuge for the Plaintiffs' effort to litigate a brand new case directly in the Supreme Court.

Ironically, the Plaintiffs do not even claim that they intend to ask for a remedy. All they claim to want out of this phase of the litigation is a declaration as to "what constitutes adequacy''. Memorandum of Law in Support of Motion for Procedural Order, p. 3, n. 1. This is nothing less than a request for an advisory opinion. This Court, however, has no authority to issue an advisory opinion to private parties. E.g., Petition of Public Service Company of N.H., 125 N.H. 595, 597 (1984); State v. Harvey , 106 N.H. 447, 448 (1965); Petition of Turner, 97 N.H. 449 (1952); In Re School Law Manual, 63 N.H. 574, 576 (1886). The fact that this case was brought as a petition for declaratory judgment does not avail the Plaintiffs, for it is well settled that a declaratory judgment action may not be used to obtain an advisory opinion. E.g., Town of Orford v. N.H. Air Resources Comm., 128 N.H. 539, 541-2 (1986); Delude v. Town of Amherst, 137 N.H. 361 (1993); Piper v. Meredith, 109 NH 329 (1969); Lisbon District v. Lisbon, 85 NH 173 (1931).

Because the Plaintiffs' challenges to HB117 really do constitute a brand new case, this Court ought to deny the Plaintiffs' motions, without prejudice, and terminate its jurisdiction over the matter. If the Plaintiffs wish to bring a new action challenging the constitutionality of HB117, the Superior Courts of this State are open to them. Simply because the current case is an "important" one does not give them any preferential status, nor should it cause this Court to create abnormal forms and procedures not in accordance with our legal traditions. Petition of Public Service Co. of N.H., 125 NH 595, 598 (1984). That is part of what it means to live in a society which is governed by the rule of law, not men.

Even if this Court were disposed to not completely dismiss the case at this time, the only other appropriate course of action would be to remand it to the Superior Court from whence it came.²⁴ This, of course, is exactly what the Court said it would do in the event that a remedial stage were ever reached. "[W]e cannot 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 School District v. Governor, 142 NH 462, 476 (1997) (emphasis supplied). If the Plaintiffs want a trial, let them try the case in the Trial Court where they brought their suit in the first place.²⁵ Only by remanding the case in such a fashion can this Court prevent what appears to be a not-so-subtle effort by the Plaintiffs to engage in judge shopping.

III. THE "TARGETED" PORTIONS OF HB117

Despite claiming that HB117 ought to be shipped off to a factfinder for a constitutional overhaul, the Plaintiffs do not ask to have the law suspended in the interim. On the contrary,

they wish to leave the allegedly unconstitutional HB117 in place - with, however, a few "targeted" exceptions.

First, the Plaintiffs challenge several specific provisions of the statute which they claim arbitrarily reduce HB117's calculation of the cost of educational adequacy. These are the so-called 9.75 percent discount, the 30 percent transportation discount and the exclusion of building costs. Secondly, they argue that the Department of Revenue Administration ought to use a particular formula known as "Total Equalized Valuation" to assess property values for the new State education property tax. Thirdly, they contest the 5 year phase-in of the property tax in the "donor towns." And, finally, they complain about the fact that the reports of the Adequate Education and Education Financing Commission and the Tax Equity and Efficiency Commission, both of which were established by HB117, are not due until various specified dates in the future.

The common characteristic of the Plaintiffs' targeted challenges is that there is no common characteristic. The attack upon the 9.75 discount and the 30 percent transportation discount appear to be based upon some general allegation of irrationality. The exclusion of capital costs is challenged as being in violation of Article 83, Part II of the Constitution. The DRA's use of Total Equalized Valuation and the phase-in of the new State property tax are claimed to violate the uniformity of taxation required by Article 5, Part II of the Constitution. And the timetables for the issuance of the reports of the education adequacy and tax equity commissions are alleged to be evidence the Legislature's bad faith in failing to implement its responsibility to provide and fund an adequate education in a timely manner.

On the other hand, all of the Plaintiffs' targeted claims do share the fact that they focus upon the trees and not upon the forest. As I will discuss later, the Plaintiffs completely ignore the issue of severability; they ask that this Court judge each targeted provision in isolation and, if it is offending, to simply excise it from the law. More importantly, they seek to place this Court in the anomalous position of reviewing a targeted claim on the grounds of its supposed inconsistency with the internal logic of a statute which the Plaintiffs claim has no logic in the first place. It is no wonder that somebody once proclaimed that, "the law is a sort of hocus-pocus science, that smiles in yer face while it picks yer pocket."

A. The Scope of Review

None of the foregoing is meant to imply that if the Plaintiffs were to challenge the $825 million figure, the internal logic of HB 117's formula to determine the cost of an adequate education and/or any legislative history tending to cast doubt upon that logic would be irrelevant. It is admittedly true that the Legislature may not declare black that which is white. See, e.g., Opinion of the Justices, 101 N.H. 549, 556 (1958) ("an assumption contrary to fact which is embodied in a statutory formula may render such a statute unconstitutional.'') For example, the Legislature may not regulate something which the Constitution would otherwise prohibit simply by declaring that the legislation has a "public purpose''. Opinion of the Justices, 113 N.H. 201, 203-4 (1973); Opinion of the Justices , 101 N.H. 546, 548 (1957). Consequently, if the Plaintiffs were to have challenged the validity of $825 million as the cost of an adequate education, it would not be improper to make reference to the alleged arbitrariness of that figure as reflected in the legislative history of HB 117 in order to overcome the customary deference which is afforded legislative findings and declarations. See, e.g., Velishka v. Nashua, 99 N.H. 161, 165 (1954).

But the Plaintiffs do not direct the Court's attention to the legislative history of HB 117 for any such purpose. On the contrary, they attack individual provisions of the statute (the 9.75 percent discount, the 70% transportation factor and the non-inclusion of building costs) as if they were stand-alone laws. In this way, they hope to detach the Court from the relevant inquiry - whether or not the Legislature has caused the State to adequately fund education - and instead to focus upon the abstract wisdom of individual provisions of the statute. This, of course, runs directly counter to this Court's oft-repeated proposition that it is not the function of the Judiciary to judge the wisdom or expediency of a legislative act.; E.g., Opinion of the Justices (Tax Plan Referendum), 143 N.H. ___, ___ (1999); Opinion of the Justices (Property Taxation of Tel-Poles ), 142 N.H. 102, 108 (1997); Sedgewick v. City of Dover, 123 N.H. 193, 198 (1982).

The fact that the provisions of HB 117 under challenge by the Plaintiffs relate to the subject of education does not change the scope of judicial review. As this Court stated in Coleman v. School District of Rochester , 87 N.H. 465, 471-2 (1936), "Any educational policy or rule declared by the legislature or promulgated under authority delegated by it may not be reversed or vacated judicially on the ground that it must be regarded as impolitic.'' To the same effect is the pronouncement of the Court in City of Franklin v. Hinds, 101 N.H. 344, 346 (1958), "The manner in which educational policy of cities shall be formulated is determined by the Legislature and not the courts.'' See also, Farnum's Petition, 51 N.H. 376, (1871); State v. Jackson, 71 N.H. 552, 554 (1902); Trustees of Dartmouth College v. Woodward, 1 N.H. 111, 114 & 121 (1818).

Not unexpectedly, the Plaintiffs seize upon the Court's designation in Claremont II of the right to education as a "fundamental'' right which supposedly warrants the application of a so-called "strict scrutiny'' scope of judicial review. Memorandum of Law in Support of Motion for Procedural Order, p. 11. I respectfully suggest that the Plaintiffs completely misapprehend the Court's frame of reference for this discussion. The strict scrutiny test is a jurisprudential concept formulated in the context of equal protection analysis. Accordingly, its focus is not upon the absolute merits of a statute, but upon its relative merits vis a vis something else. As US Supreme Court Justice Souter observed recently in the case of Washington v. Glucksberg, 138 L.Ed.2d 772, 817 (1997), the strict scrutiny test is designed "to assess the relative weights or dignities of the contending interests.'' See also, San Antonio School District v. Rodriguez, 411 U.S. 1, 37-9 (1974). See, Brannigan v. Usitalo, 134 NH 50, 56 (1991) (describing the so-called middle tier test as a "balancing test''); cf. Claremont School District v. Governor, 142 NH 462, 481-2 (1997) (Horton dissent)(describing the test of proportionality in Article 5, Part II of the New Hampshire Constitution as one which "involves relative considerations''). Indeed, the context of this Court's reference to the strict scrutiny test in Claremont II itself reflects the very same thing: "[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.'' 142 NH at 474 (emphasis supplied).²⁶

Strict scrutiny, therefore, is simply not a notion which is suitable for analyzing the alleged defects in HB 117 of which the Plaintiffs complain. None of the issues which the Plaintiffs raise concerning HB 117's formula for the calculation of the cost of an adequate education involves a factor which applies only to some school districts, but not to others. The 9.75 percent discount, the transportation factor and the exclusion of building costs are all factors which apply to the overall statewide cost of an adequate education and in no way are imposed unequally upon the Plaintiff school districts. In other words, there is no disparity of treatment against which to weigh some "compelling State interest'' which purports to justify the disparity.

What the Plaintiffs fail to appreciate is the essentially unique character of the right to an adequate education. Unlike virtually all of the other rights guaranteed by our Constitution, the right to an adequate education is an affirmative, not a negative, right. This is most unusual. Wooster v. Plymouth , 62 NH 193 , 197-200 (1882); Orr v. Quimby, 54 NH 590, 603 (1874)(Doe, C.J. dissent). "The Constitution is a charter of negative rather than positive liberties. The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much for them.'' Jackson v. City of Joliet, 715 F2d 1200, 1204 (7th Cir. 1983) See also, Archie v. City of Racine , 847 F2d 1211, 1224-5 (7th Cir. 1988). When dealing with an affirmative right, therefore, the question which is posed to the Court is not whether Government has done something which the Constitution says it may not do, but whether what the Government has done is enough. This is not a balancing test. Consequently, any discussion about whether or not Government had some appropriate level of "state interest'' is simply a non sequitur .

This point has not been lost upon the courts of the other states which have recognized a constitutional right to education. Even those Courts which have found education to be a "fundamental'' right have only applied the strict scrutiny test where some question of equality was at issue. See, e.g., Hornbeck v. Somerset County Bd. of Education, 458 A.2d 758, 784-85, n15(Md. 1983). As noted by the California Court of Appeals in one of the Serrano decisions,

To apply strict scrutiny to every statute that affects education would mean that every legislative classification - from the length of the school day to the level of funding for every categorical program - would be presumptively unconstitutional unless the state proved a compelling state interest....For a Court to subject funding differences to strict scrutiny would involve the Court in legislative decisions for which it is institutionally ill-suited. In the face of the resulting uncertainty, experimentation necessary to meet changing educational needs might cease for fear of the inability to show the requisite `necessity'.

Serrano v. Priest, 226 Cal. Rptr. 584, 605-6 (Cal. App. 2d Dist. 1986).²⁷

Finally, if the Plaintiffs were correct that this Court meant to prescribe a strict scrutiny scope of review over the Legislature's determination of the cost of an adequate education, the Court's entire discussion of the deference which it affords to the Legislature on this matter would be self-contradictory. For example, a strict scrutiny scope of review is completely inconsistent with the "wide latitude'' which the Court acknowledged that the Legislature has "in choosing the means by which public education is to be supported.'' Claremont School District v. Governor , 142, NH 462, 476 (1997). Suffice it to say that if the Court meant to apply a strict scrutiny test to all legislative acts concerning education, as opposed to only those raising issues of equality, it must have had it's tongue in its collective check when it stated that, "[W]e were not appointed to establish educational policy, nor to determine the proper way to finance its implementation. That is why we leave such matters, consistent with the Constitution to the two co-equal branches of government and why we did so in the unanimous opinion of this court in Claremont I.'' Id. at 475 (also quoted with approval in Opinion of the Justices (School Financing ), 142 NH 892, 903 (1998)).

B. The Rush to Judgment.

Irrespective of the appropriate level of judicial scrutiny in this case, the Plaintiffs cannot both attack the statute as a whole and, at the same time, attack "targeted'' provisions as being inconsistent with its logic. This type of alternative pleading might be acceptable if Court were being asked to decide the merits of the alternative claims all at the same time. The Plaintiffs, however, do not want that. Instead, they want this Court to excise the offending provisions that they have targeted right now and leave their global challenge to another day.

But what if their global challenge were to fail? What if a master or this Court were to find that $825 million is adequate to fund the cost of an adequate education? Will the Plaintiffs (and all the other school districts which might be benefitted) give back the extra monies which they would get under HB 117 if certain "targeted'' provisions which increased the cost of an adequate education were removed? Suffice it to say that there is no such offer of reimbursement by the Plaintiffs.

Let us take the case of transportation. Suppose the Court were to conclude that State- financed transportation of students to public schools is simply not an Article 83 obligation. If the Court were to have ruled in the interim that the use of a 70% transportation factor was, as the Plaintiffs put it, simply a matter of a "guess'' (see Memorandum of Law in Support of Motion for Procedural Order, p. 17) and should thus be grossed up by this Court to 100%, do the Plaintiffs promise to pay that money back to the taxpayers? Hardly!

C. The Requests for Advisory Opinions

The Plaintiffs' call for a declaration by this Court that building costs must be included within the Legislature's calculation of the cost of an adequate education deserves direct quotation:

Petitioners do not ask the court, in the first instance, to decide the cost of school buildings or a methodology for determining that cost. Instead, the petitioners simply request the Court to rule that the cost of buildings must be borne by the State, in some measure, as a part of the cost of adequacy. This, it would seem, is purely a legal question that may be briefed by the parties and decided by the Court without necessity of factual development.

Memorandum of Law in Support of Motion for Procedural Order, p. 20.

This is nothing less than a bold-faced request for an advisory opinion. The Plaintiffs expressly ask for no remedy. In fact, it is clear that they do not even want the most basic remedy that the Court could grant - a declaration that HB117 is unconstitutional. All they want the Court to do is to counsel the Legislature about what it supposedly ought to do in order to make the statute constitutional. In the meantime, however, they want to leave what they claim is an unconstitutional statute in place.

If the Court were to volunteer its opinion on this matter under such circumstances, it would surely convert itself from a judicial institution into a public law firm. The Court's constitutional responsibility is to decide disputes, not engage in philosophical debates. Merrill v. Sherburne , 1 NH 199, 203-4 (1818). The only time that it is authorized to act as a constitutional advisor is in response to a request from one of its co-equal branches of government. Article 74, Part II, NH Const. Neither the Legislature nor the Governor has asked this Court for its advice on the constitutionality of HB117. And the only way that the Plaintiffs are entitled to the Court's advice is to bring a proper case and ask for a proper remedy, something which they apparently decline to do.²⁸

D. The Challenge to An Administrative Procedure

The Plaintiffs challenge to the State's use of so-called Total Equalized

Valuation (TEV), instead of so-called Equalized Assessed Valuation (EAV), for purposes of assessing property values upon which to levy HB117's new State education property tax stands in a class by itself. To begin with, it is difficult to discern what constitutional issue is presented by this challenge. If the State applies the same assessment methodology uniformly to all towns and cities, the fact that the resulting effective tax rates may differ does not necessarily make the tax unconstitutional. The question is whether or not the discrepancies in tax rates are offset by equivalent discrepancies in assessments. If they are, the resulting taxes are "proportional" within the meaning of the Constitution.

This Court cannot determine this issue merely on the basis of the Plaintiffs' pleadings. If any issue which the Plaintiffs raise requires the presentation of evidence, the assistance of experts and factfinding, this one does . Yet, this is a claim which the Plaintiffs do not want sent to factfinding.

More importantly, this is obviously not a challenge to the constitutionality of HB117. It deals solely with the administrative implementation of the statute. The statute itself does not require the use of TEV or EAV. The manner by which to equalize property assessments is one to be determined administratively by the Department of Revenue Administration. Assuming that the Department of Revenue Administration elects to use a method of assessment which the Plaintiffs believe would result in an unconstitutional disproportionality of taxation (a matter which is, in any case, not yet ripe for determination), there are established legal procedures by which such a challenge can be made. Such procedures do not include, however, invoking the original jurisdiction of the Supreme Court. ²⁹

Finally, at least some of the Plaintiffs have no standing to bring this claim, either here or in any other forum. School districts are not entitled to challenge the assessment of taxes levied by the State. As this Court stated in Madbury v. State, 115 NH 196,199 (1975):

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. (Citations omitted). In spite of the limitations upon the plenary control by the legislature over municipalities imposed by the adoption of N.H. Const. pt.I, art.39, effective 1996, the suit dealing with the tax power may not be maintained by the towns in their corporate capacity.

See, also, Hampton v. Marvin, 105 NH 34 (1963); Cassube v. Maynard, 112 N.H. 229 (1972).

E. The Phase-In for the Donor Towns

The standing issue is even more of an impediment for the school district Plaintiffs with respect to their challenge of the phase-in of the new State education property tax for the so-called donor towns. Not only do they not have any standing as political subdivisions of the State to challenge a State system of taxation, but they also cannot even satisfy the general standing requirement that they make a showing of harm. In this regard, the phase-in has no impact upon how much education money the Plaintiff school districts will receive. All that the phase-in does is require the State to temporarily identify other sources of revenue to make up for the shortfall caused by the phase-in for the next five years.

Even assuming that the taxpayer Plaintiffs would have standing to challenge the phase-in,³⁰ it ought to be incumbent upon the Plaintiffs to verify that there are individual taxpayers who are still involved in this suit and who agree to be bound by the rulings of this Court herein. If one reads newspaper accounts, it would appear that the only remaining participants in the Plaintiff group are the school districts.

If we turn, nevertheless, to the merits of the Plaintiffs' challenge to the phase-in, we find a body of law that rather clearly supports the constitutionality of the provision. Although the phase-in admittedly does allow for a progressively decreasing lack of uniformity between the effective tax rates of the taxpayers in the donor towns and those in the non-donor towns for a period of five years, the mere fact of such disproportionality is not constitutionally fatal. For if that were the sole test of a proportional and reasonable tax under Article 5, Part II of the Constitution, we could have no tax exemptions, abatements, credits, or the like.

This, however, is clearly not the law. As this Court stated in its advisory opinion on the ABC Plan, the test is whether or not the disproportionality is supported by "good cause" or "just reasons." Opinion of the Justices (School Financing), 142 N.H. 892, 900 (1998). See also, Boehner v. State, 122 N.H. 79, 84 (1982); Opinion of the Justices, 117 N.H. 512, 515 (1977); Opinion of the Justices , 105 N.H. 22, 23 (1963). As to what constitutes such good cause or just reasons, the Court stated that, "we leave matters of public policy to the legislature and do not concern ourselves with the wisdom and practicality of proposed legislation." Id. at 900. See also, Opinion of the Justices, 95 N.H. 548, 550 (1949); Opinion of the Justices , 84 N.H. 559, 572 (1930).

In the case at bar, the Legislature has very specifically articulated the public policy which supports the phase-in of HB117's new property tax in the preamble to the statute. That preamble, which is now R.S.A. 17:1VI, states as follows:

In cities and towns with relatively higher property values, sharp increases in property taxes may cause business failure where fixed costs increase faster than the ability to recoup them. Commercial rental property owners may find themselves locked in by lease provisions that prevent them from recouping tax increases from tenants, resulting in reduced reinvestment in the property, and potential foreclosure or bankruptcy. Also, substantial increases in property tax obligations may cause or permit lenders to foreclose on mortgage notes based on the decreased ability of the borrower to meet the income level required by the lender. Tax capitalization which decreases property values may also cause foreclosures on otherwise performing loans because the regulated lending institution must call the loan to comply with rules and regulations. Therefore a phase-in provision is included herein which is intended to ameliorate these consequences as far as is practicable, and to allow property owners and local governments time to adjust to the new state education property tax enacted herein.

The Legislature's words speak for themselves. And the Plaintiffs offer no serious rationale to undermine the Legislature's policy statements. Their suggestion that the Legislature could have extended the phase-in to the entire State, as opposed to limiting it to the donor towns, "in order to avoid any anticipated economic disruption," completely misses the mark. No economic disruption is caused by the new State education property tax in the non-donor towns because the new State tax simply substitutes itself for the first $6.60 per $1000 of their old local tax. Therefore, unless you can call the receipt of funds from the donor towns economic disruption, the effect of HB117 upon the non-donor towns is all positive.

Likewise, the hint that a phase-in might be appropriate if its benefits were limited to low-income taxpayers in the donor towns is also off the target. See Memorandum of Law in Support of Motion for Procedural Order , p.6. The phase-in is directed at ameliorating the effects of "sticker shock," i.e., a big jump in price which occurs suddenly and in one burst. Since real estate taxes are capitalized in the marketplace, all property owners are, to a greater or lesser degree, subject to sticker shock when taxes take a big leap. Accordingly, the phase-in is appropriate for everyone in the donor towns, not just the poor. Compare, e.g. , Opinion of the Justices, 117 N.H. 512, 517-18 (1977)(exemption of $100 from taxable capital gains for persons over 65 or blind, regardless of personal wealth).

F.The Non-Issue of the Commission Reports.

Finally, the last of the Plaintiffs' targeted challenges to HB117 is the supposed issue about the due dates for the issuance of the reports of the Adequate Education and Education Financing Commission and the Tax Equity and Efficiency Commission. These seem to be raised in the Plaintiffs' Motion for Procedural Order almost as an afterthought. On the one hand, the issue seems to go with the Plaintiffs' Motion for Sanctions since it purportedly relates to the claim of the Legislature's bad faith, but on the other hand, it may relate to the Plaintiffs' request that the Legislature's educational adequacy definition be sent to factfinding on account of the current one's failure to include a delivery system. In either case, the issue doesn't appear to fit in with the other "targeted" ones because the Plaintiffs ask for no relief. ³¹

G. The Problem of Severability

The Plaintiffs' targeted challenges to HB 117 assume that this Court can simply slice the offending provisions out of the statute and continue to enforce what is left. But the Plaintiffs' very own argument in support of their motion postulates that HB 117 was a package deal. The Plaintiffs claim that $825 million was a figure that the Legislature wanted to reach as the cost of an adequate education and that it did whatever it had to do in order to achieve its goal. Consequently, if this Court were to strike down any provision which would increase the cost of adequacy above $825 million, the Plaintiffs themselves have established that what would be left would not be an HB 117 that the Legislature would have passed.

In numerous instances where this Court has found individual provisions of a statutory scheme unconstitutional, it has been compelled to strike the entire scheme down on the ground that the unconstitutional provisions were not severable. Virtually every factor which would dictate such a result applies to the Plaintiffs' targeted attacks on HB 117:

1.There is no severability or "savings'' clause in HB 117. Compare , Opinion of the Justices, 88 N.H. 484 (1937), with, Opinion of the Justices, 106 N.H. 202 (1965).

2.The education funding scheme embodied in HB 117 was obviously intended by the Legislature to "substitute a new system as a whole'' for the existing pre- Claremont system. Williams v. State, 81 N.H. 341, 353 (1924). See also, Heath v. Sears, Roebuck & Co., 123 N.H. 512 (1983); Carson v. Mauer, 120 N.H. 925 (1980).

3.In view of the "expressed legislative intent'' that a particular formula be used, the provisions related to the calculation of the cost of an adequate education (the 9.75% discount, the transportation discount and the exclusion of capital costs) are so interrelated, integral and essential to the structure of HB 117 that the whole structure would collapse if they were omitted. Public Service Co. v. State, 101 N.H. 154 (1957).

4.In view of the closeness of the vote on HB 117 and the political compromises that were required to get agreement on a bill that, even when passed, did not raise enough in taxes to fully fund the $825 million cost of an adequate education, it would be "impossible to tell whether the Legislature would have adopted any part of the [bill] independently'' if the phase-in of the State property tax in the donor towns were eliminated. Public Service Co. v. State, 101 N.H. 154, 163 (1957).

In essence, the Plaintiffs are asking this Court to re-write HB 117. Even assuming that this would make a law constitutional which was otherwise unconstitutional, the Court cannot do it. As this Court said in State v. Gerry , 68 N.H. 495, 503 (1896), "[A]ll the court can do [to a statute] is pronounce it void.'' See also, Canaan v. District, 74 N.H. 517, 541-2 (1908); Trustee Etc. Academy v. Exeter, 92 N.H. 473, 478 (1943); Opinion of the Justices, 75 N.H. 622, 624 (1910). It is the province of the Legislature to find a substitute for what the Court has pronounced void. That is because "courts of law cannot legislate.'' Dartmouth College v. Woodward, 1 N.H. 111, 136 (1818).

Since the Plaintiffs are so adamant in their insistence that the Court not declare HB 117 unconstitutional in the targeted phase of the Court's review of the statute, they should not be permitted to go forward with any of their targeted challenges. The limits of this Court's jurisdiction cannot be dictated by the Plaintiffs. They must accept that the baby could be thrown out with the bath water. Because they do not choose to do so, their targeted challenges - just like their unsubstantiated adequacy challenges - should be dismissed without further ado.

CONCLUSION

This Court is at the crossroads. Does it go down the road of New Jersey, California, Texas, Ohio, etc., and spend the next 20 years deciding Claremont I, Claremont II, Claremont III, Claremont IV, Claremont V, etc., etc.? Or does it take the New Hampshire path, the one that our own Robert Frost called the "road less traveled"? I suggest that this Court go its own way and deny the Plaintiffs' Motion for a Procedural Order.

Respectfully submitted,

Eugene M. Van Loan, III, Esquire

as amicus curiae

Certificate of Service

I, Eugene M. Van Loan, III, Esquire do hereby certify that on this date I forwarded a copy of the aforementioned Memorandum to all the parties on the attached Service List.

Eugene M. Van Loan, III

SERVICE LIST