A resolution declaring the Supreme Court’s major school funding decisions “not binding” on the legislature failed to garner support from the Republican-led House Judiciary Committee on Wednesday, likely ending the majority party’s push to issue an official response to the court’s summer ruling on the issue.
Though the House concurrent resolution would have been purely symbolic, some Republicans argued it would send an important message to the judicial branch, which conservatives have long argued wrongly decided the Claremont cases of the 1990s. Those cases served as the legal foundation for this summer’s ruling, in which the court found that the current amount of state education funding was unconstitutionally low and must be raised.
Democrats on the committee vehemently opposed the resolution, arguing that ignoring the judiciary would raise concerns about the separation of powers between the branches of government.
“Irrespective of whether one agrees or disagrees with any particular decision of the Supreme Court, under our system of government, those decisions are within the province of the judiciary to make and they’re binding on the other two branches,” Democratic Rep. Paul Berch of Westmoreland said. “Democracy, I think, does not survive otherwise.”
Republican Rep. Bob Lynn of Windham, the chair of the committee and a former chief justice of the state Supreme Court, made a more pragmatic case against supporting the resolution.
While he said he believed this year’s court decision in ConVal v. State of New Hampshire was wrongly decided, he noted that three of the judges in the majority are not on the Supreme Court now. (Two were already retired and were selected to hear the case because one justice was on leave and another had recused himself. The third retired from the court after the decision.)
“To the extent this HCR is sort of a slap, if you will, at the judicial branch, I think it is unwise to do that when the judicial branch now consists of people who were not the ones that supported the ConVal decision,” Lynn said.
Their opposition to the resolution does not mean that Republican members of the committee will back legislation that would heed the court’s order to significantly raise the base adequacy amount allocated per pupil by the state. House Majority Leader Jason Osborne previously said his party “could do absolutely nothing, or we could – if we wanted to – comply with the court’s wishes by shuffling some deck chairs around a ship.”
But Lynn suggested whatever the party decides would be more palatable to the court if the resolution is not enacted.
“I can’t help thinking that if this were to pass, one of the things that it could very well engender in the judicial branch is a kind of ‘circle of wagons’ mentality,” he said. “And I don’t think that is anything that likely would produce a result that those of us who think that the ConVal decision was wrongly decided would want the eventual result of this to be.”
Though the committee voted 16-1 to recommend interim study on the resolution, effectively killing it this legislative session, Lynn’s fellow Republican members were not in lockstep.
“Each of us swore an oath to uphold the Constitution itself, not the recent several decades of judicial gloss upon it,” Republican Rep. Donald McFarlane of Orange said. “If a ruling departs from the plain meaning or the framers’ original intent, then fidelity to our oath may require respectful resistance.”