RLCNH EVISCERATED OVER CACR12 YET AGAIN, Ed Mosca, House Legal Council, 6/5/12

posted Jun 6, 2012, 3:40 AM by Bill Duncan
DNHPE Comment: This is much too long for most normal humans to read but I have highlighted the key sections where says that CACR 12 essentially replaced Article 83 of the New Hampshire Constitution.  This is not something most 


Ed Mosca
RLC ―When looking at CACR 12, there are a few nicknames we could use
for it. We could call it the “Robin Hood Amendment,” we could call it
“the Moderate Amendment,” we could call it “the Lawyer’s Amendment,”
but really the true nickname of CACR 12 should be “the Giving into
Claremont Amendment.”

MOSCA – that is a very strange nickname for an amendment that
eliminates the four Claremont duties!

RLC -- If you’re willing to accept that Claremont was correct and that
the people have a fundamental right to a state-run and state-funded
public education, nothing we say is going to convince you otherwise.
But if, like us, you think Claremont was wrong, and you are not
willing to give up the fight for educational freedom and the natural
right of parents to educate their own children, then read on because
we are going to convince you why CACR 12 is not the right amendment
for New Hampshire.

MOSCA – one does not have to believe that Claremont was correct to
believe that we need CACR12. Under the RLC’s logic we should never
have passed the 13th Amendment in response to Dred Scott.

RLC -- For reference, we begin our discussion with a response to the
House’s FAQs document and then lead into a detailed analysis that
explains why CACR 12 is wrong for New Hampshire.

FREQUENTLY ASKED QUESTIONS

Question #1: How does the new CACR12 overturn the Claremont decisions?

Answer: It doesn’t. It sets the stage for the next one to happen. By
making the Legislature “responsible to maintain” a system of public
education, we give the court everything they ever wanted. The lower
court in the original Claremont decision specifically mentioned that
our Constitution lacked the word “maintain.” Why are we giving it to
them?

MOSCA – it is, at best, factually inaccurate to assert that an
amendment that eliminates the four Claremont duties “give[s] the court
everything they [sic] ever wanted.”

Question #2: Does the new CACR12 enshrine the Claremont decisions into
the NH Constitution?

Answer: Yes. We will now have the “responsibility to maintain a
system” for public education and to mitigate local disparities in
funding, the two very things that Claremont was about. This has always
been about the money. Follow the money. Who benefits from giving in
now? Taxpayers are not going to see lower taxes, the courts get what
they always wanted and even the proponents of CACR 12 admit that the
Legislature gets nothing new. They say that all of our objections to
the amendment are already accepted law anyway. However, those laws can
be changed, while a constitutional amendment that enshrines these
erroneous principles in the Constitution cannot easily be changed. Why
are we giving up the war and raising the white flag of defeat?

MOSCA – Claremont was about the four Claremont duties – define an
adequate education, determine its cost, pay for the entire cost
entirely with state taxes, and have meaningful standards of
accountability, all of which the court had the final say over. CACR12
completely eliminates tha
t.
Since 1789 New Hampshire has by state law
maintained a system of public education, so CACR12 is completely
consistent with tradition.

Question #3: Does the new CACR12 affirm state control over local curricula?

Answer: Without a doubt. What is now largely a responsibility of
parents and local communities will be fully assumed by the
Legislature. Central control is not the New Hampshire way. It’s true,
we’re not a home rule state, but we have a culture in New Hampshire of
granting home rule in as many areas as possible. For education, the
Constitution’s only mention of eduction in Part 1 gives authority to
local communities to hire and form contracts with teachers. Arguably,
during the time of the Constitution, teachers were equivalent to
schools. Therefore, the Bill of Rights in New Hampshire gives an
exception to education as a sole area of local control guaranteed by
the Constitution.

MOSCA – there is no and never has been any “Bill of Rights exception”
for public education. Since 1789 there have been state laws regarding
curriculum and funding.

Question #4: What effect does the new CACR12 have on homeschooling and
charter schools?

Answer: We have representatives telling us that homeschooling is not
public education and then we see these same people pass legislation
claiming that it is and that the state has a responsibility to
regulate it. Which is it? When the courts decide that homeschooling is
public education, parents will be up in arms and wonder why yet again
the Legislature sold them down the river.

Additionally, the cost to homeschooling parents and parents with
children in private schools in increased taxes will likely make it
unaffordable for them to keep their children out of public schools.
And yet, depending on who is in the Legislature, we’ve seen
homeschooling regulation that assumes that any standards set for
public schools must be met by homeschoolers anyway, often with a
higher degree of regulation and outright fear that parents aren’t
meeting those standards, and that has always resulted in even MORE
regulation to oversee them. These problems will increase with CACR 12
in place.

MOSCA – legislative authority over home schooling is based on Part II,
Article 5. Defeating CACR12 does nothing to change that in any manner
whatsoever.

Question #5: Doesn’t having the word “Responsibility” in the amendment
enshrine Claremont?

Answer: Absolutely. Our Constitution does not give the Legislature
“responsibility” over public education at this time. CACR 12 adds that
“responsibility.” We can argue how involved the Legislature should
be―and we should have that argument―and we will find some middle
ground that will vary and change over time. So why should we raise the
white flag of defeat now and ensure that we will always have to
maintain and fund our current, failed system at a minimum?

MOSCA – it is, at best, factually inaccurate to assert that CACR12
requires the system currently in place to stay in place. Pursuant to
Part II, Article 5, the Legislature has exercised responsibility over
public education since 1789.

Question #6: Doesn’t “maintaining a system of public elementary and
secondary education” enshrine Claremont?

Answer: Yes. See question five above.

MOSCA – No. See question five above.

Question #7: Why not pursue an absolute purist amendment?

Answer: This is a red herring. We’ve heard people proclaim: “We don’t
have the votes to reverse Claremont.” “We’ve been fighting so long and
this is our only chance.” It’s too late.” “This is the best we can
do.” “We’ve already lost.” “The public will never support us.” “You
haven’t been around as long as we have.” And many of these statements
come from the representatives who wrote extensive arguments against
Claremont years and years ago. They are weary of this battle. They are
ready to raise the white flag of defeat. They are willing and ready to
accede to most of Claremont’s results in the name of perhaps and maybe
preventing a phantom broad-based tax, which is always threatened to be
on the horizon, and a court made up of judges that even in Londonderry
III did not all agree that it should be getting involved.

We tell you this: Putting CACR 12 into the Constitution ENSURES the
very thing proponents of CACR 12 are worried about. The next court
battle will not result in the court saying they can’t tell the
Legislature what to do, it will result in the court telling the
Legislature it has all the power to do everything because of CACR 12,
and now it must do everything, because it is the Legislature’s
constitutional responsibility to do so. And, because we will not be
able to downshift any of the cost of maintaining that system, this, my
friends, will guarantee a broad-based tax because a local property
tax, as the court already said, is not a fair and equal system of
taxation. So the Legislature post CACR 12 will become a Robin Hood
State to mitigate disparity, robbing from the rich, to educate the
poor. Future legislators may enact an income tax, a sales tax or a new
business tax or some other method to take from those who have to give
to those who don’t, and we will have forever lost the New Hampshire
Advantage.

The State of New Hampshire will be better off if this Legislature does
nothing, rather then give in to the Claremont judges. The Constitution
doesn’t have any mention of anything but “cherish” right now, and look
where that got us. Adding the language of CACR12 will not lead the way
out of the mess, but it will lead us deeper and permanently into a
bigger mess.

MOSCA – the same constitution the RLC claims to know better than all
these alleged quisling graybeards who, establishes a bicameral
legislature. So, the answer is pretty simple, because this is the best
compromise that could be forged with the Senate. Moreover, it is a
damn good compromise for true conservatives, because it overturns
Claremont.

Question #8: What happens if the new CACR12 fails?

Answer: Nothing! A court decision that has yet to be written and
threats that have yet to be made by an overreaching court will be
dealt with by a future Legislature. We hope that Legislature is
controlled by fiscal conservatives, but even if it’s not, any changes
they make are reversible. Whether its in a year or five years, when
the fiscal conservatives come back into power, as we know they will,
they can reverse the damage. They will not be able to reverse a
constitutional amendment. Don’t waive the white flag of surrender, for
that future Legislature is depending on us to be the fiscal
conservatives of today.

There are defensive lawsuits that no one has yet pursued, asking
questions like “What about the rest of Art 83? Do we have to fund that
as well, since we have to cherish it?” The public has been fooled by
“it’s for the children” arguments. Showing the public that the logic
of Claremont makes no sense when applied to the rest of Art. 83 might
help to educate people on the issue far better than sending them a
flawed constitutional amendment that the lawyers insist nobody but
them can truly understand.

MOSCA – this is extremely wishful thinking. What happens next is that
somebody brings the “Londonderry III” lawsuit where the court decides
the question that Londonderry II left it poised to decide – is the
State spending as much on public education as the Court thinks should
be spent. A decision that per pupil spending should be, for example,
$10,000.00 would require a massive increase in the rate of the
statewide property tax and, probably, other state taxes. For those,
like the RLC, that claim it cannot happen, I say those who forget the
lessons of the past are doomed to make the same mistakes over and over
again. All one need do is look at what happened in response to
Claremont II – the statewide property tax – to know the RLC is
demonstrating extreme naivetee.

DETAILED ANALYSIS

As a point of comparison, here are the three versions of CACR 12. The
third “conference” version is what we’re left to vote on. Please keep
this page as a reference for the rest of the analysis, because we will
be referring to it often.

House Language:[Art.] 5-c [Public Education.] In fulfillment of the
provisions with respect to education set forth in Part II, Article 83,
the general court shall have the authority and full discretion to
define reasonable standards for elementary and secondary public
education, to establish reasonable standards of accountability
therefor, and to mitigate local disparities in educational opportunity
and fiscal capacity. Further, in the exercise thereof, the general
court shall have full discretion to determine the amount of, and
methods of raising and distributing, State funding for education.

Senate Language:[Art.] 5-c [Public Education.] In fulfillment of the
provisions with respect to education set forth in Part II, Article 83,
the legislature shall have full power and authority and the
responsibility to define reasonable standards for elementary and
secondary public education, to establish reasonable standards of
accountability, and to mitigate local disparities in educational
opportunity and fiscal capacity. Further, the legislature shall have
full power and authority to determine the amount of, and the method of
raising and distributing, state funding for public education.

“Committee of Conference” Language:[Art.] 5-c [Public Education.] In
fulfillment of the provisions with respect to education set forth in
Part II, Article 83, the legislature shall have the responsibility to
maintain a system of public elementary and secondary education and to
mitigate local disparities in educational opportunity and fiscal
capacity. In furtherance thereof, the Legislature shall have the full
power and authority to make reasonable standards for elementary and
secondary public education and standards of accountability and to
determine the amount of, and the methods of raising and distributing,
state funding for public education.

For this discussion, we will be mainly referencing the “Committee of
Conference” Language, which the House and Senate must now give an up
or down vote. In the House, 237 members voting in favor will pass this
amendment. In the Senate, 15 Senators voting in favor will pass this.
The governor does not have a vote.

The first part of the first sentence is crucially important, because
it links all of the language of the new Article 5-c [Public Education]
to Part 2, Article 83. The relevant half of Part 2, Article 83 is as
follows:

MOSCA – Wrong! The first sentence of CACR12, replaces not
incorporates, Part II, Article 83.


Knowledge and learning, generally diffused through a community, being
essential to the preservation of a free government; and spreading the
opportunities and advantages of education through the various parts of
the country, being highly conducive to promote this end; it shall be
the duty of the legislators and magistrates, in all future periods of
this government, to cherish the interest of literature and the
sciences, and all seminaries and public schools, to encourage private
and public institutions, rewards, and immunities for the promotion of
agriculture, arts, sciences, commerce, trades, manufactures, and
natural history of the country; to countenance and inculcate 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, among
the people: Provided, nevertheless, that no money raised by taxation
shall ever be granted or applied for the use of the schools of
institutions of any religious sect or denomination.

For emphasis, please pay attention to one important detail in the
above language: “...it shall be the duty of the legislators and
magistrates, in all future periods of this government, to cherish the
interest of literature and the sciences, and all seminaries and public
schools...” For those of you not seeing the point yet, please review
the definition of magistrate: “in modern usage the term usually refers
to a judge.”

Thus, the Supreme Court does and always will have an interest to
“cherish ... public schools,” regardless of any language we propose.
Now, we all know what the Supreme Court thinks the word “cherish”
means; namely, “to fund an adequate education.” That is particularly
relevant because of the first part of proposed amendment, which says:

the legislature shall have the responsibility to maintain a system of
public elementary and secondary education and to mitigate local
disparities in educational opportunity and fiscal capacity.

MOSCA – Wrong! The first sentence of CACR12, replaces not
incorporates, Part II, Article 83.


We know “liberals/progressives” well enough to know that they can and
will stretch words so far to mean the exact opposite of what they
really mean. The Claremont decisions and the judges’ reliance on the
word “cherish” should make that abundantly clear. We are giving the
“liberal/progressives” and the court, no matter who is on it, fuel
with this language; we are not pouring water on the situation, but
gasoline. If we have the “responsibility to maintain a system,” then
the system we have the responsibility to maintain will be the current
one, as far as any court is concerned, let alone a
“liberal/progressive” court. They will have a field day with this
language; it will be a green light for the court to force all manner
of new court-driven requirements on the Legislature, because our
constitution will still give “magistrates” the power to “cherish ...
public schools,” which, again, we will now have “a responsibility to
maintain,” and the definition of maintain will certainly include
“fund.” Ending or even reducing existing programs will be seen as
“failure to maintain,” so you can and should expect more lawsuits any
time that any program is underfunded. And of course, all programs are
underfunded, according to those who want those programs funded as
fully as possible, and programs do not just include core education
like reading, writing and arithmetic, but arts, music, sports and
every other program that someone considers “vital” to a child’s
“right” to be “properly educated.”

MOSCA – Wrong! The first sentence of CACR12, replaces not
incorporates, Part II, Article 83.


To those who say that mitigation could be minimal, the first lawsuit
that decides the “responsibility” to “mitigate” means far more than
“minimal” will forever establish a requirement for the Legislature to
fully fund every program that they create via the “reasonable
standards” that the Legislature has the “full power and authority” and
“responsibility to maintain.”

MOSCA – Wrong! The second sentence of CACR12 sets forth the
legislative discretion to carry out the responsibility to mitigate.
Its not decided in the courtroom any more.


Some have pointed out that the language of CACR 12 says “a system,”
meaning we won’t have to support the current system. This is where the
reference to Part 2, Article 83 is important. Since the Supreme Court
also has a duty to cherish education, it will play a role in defining
what “a system” means, and by way of precedent and other legal
maneuvers, the court will conflate “a system” to mean “the current
system.” Because of “liberals/progressives” history of distorting
words, “a system” = “the system.” We will in fact be stuck funding
education of the current system at the current levels, and the court
may even decide that we must also account for inflation and cost of
living adjustments setting a new bottom-line number that is far higher
than what we pay now. In other words, because of this language, the
court will be far more involved with the business of telling us how to
fund education.

MOSCA – Wrong! The first sentence of CACR12, replaces not
incorporates, Part II, Article 83. The second sentence of CACR12 sets
forth the legislative discretion to carry out the responsibility to
mitigate. Its not decided in the courtroom any more.


Who will lose control of education? Your local towns and school
districts might be told their new default levels of funding must be at
a minimum that they shall not drop below. And those towns that find
they can no longer afford this increased cost will turn to the
Legislature with their hands outreached, asking for us to “mitigate
their fiscal capacity.” Hello donor towns, or worse, a broad-based
tax.

MOSCA – Wrong! The first sentence of CACR12, replaces not
incorporates, Part II, Article 83. The second sentence of CACR12 sets
forth the legislative discretion to carry out the responsibility to
mitigate. Its not decided in the courtroom any more.


The first sentence of CACR 12 is bad language that would degrade the
situation for parents and local communities on a permanent basis, and
it would set up a situation where the Legislature would be compelled
to “maintain” (keep) at least level funding for public schools
forever. Once the teachers’ unions recognize the true interpretation
of CACR 12, they will be out in force supporting this language if they
know what’s good for them. They won’t ever have another budget battle
to worry about, and all of their energy can be devoted to increasing
the level of funding that must be “maintained.” There’s no wiggle room
in the clear English language in this amendment.

MOSCA – Wrong! The first sentence of CACR12, replaces not
incorporates, Part II, Article 83. The second sentence of CACR12 sets
forth the legislative discretion to carry out the responsibility to
mitigate. Its not decided in the courtroom any more.


CACR 12 makes the Legislature “responsible” for funding education,
which it has never been in the history of the state. We may have
helped fund education, but we have never been responsible for doing
so. If you believe as we believe, that the courts are wrong in their
core opinion, and we have no obligation to do what the courts say,
this gives up that battleground FOREVER. Like we say so many times, it
raises the white flag of defeat.

MOSCA – The Legislature has assumed responsibility for funding public
education, under our current constitution, since 1789. CACR12
eliminates the four Claremont duties
, so education funding decisions
get made through the democratic process, not via judicial fiat.

The next section of the amendment is problematic, because it strips
authority from parents and local communities currently maintained by
Part 1, Article 6, despite the 1968 amendment, which gutted it, and in
some views because of that 1968 amendment. First, here’s the proposed
language in the “conference” version of CACR 12:

MOSCA – Wrong! CACR12 has no effect on Part I, Article 6. The RLC
remains free to bring all the lawsuits they wish claiming that New
Hampshire is a home-rule state or whatever euphemism they want to use,
if they don’t want to use home-rule.

In furtherance thereof, the Legislature shall have the full power and
authority to make reasonable standards for elementary and secondary
public education and standards of accountability and to determine the
amount of, and the methods of raising and distributing, state funding
for public education.

For our analysis, it is important to note that from 1784 to 1968, Part
1, Article 6 of the Constitution of New Hampshire read as follows (pay
special attention to the text in bold):

As morality and piety, rightly grounded on evangelical principles,
will give the best and greatest security to government, and lay in the
hearts of men the strongest obligations to due subjection; and as the
knowledge of these, is most likely to be propagated through a society
by the institution of the public worship of the Deity, and of public
instruction in morality and religion; therefore, to promote those
important purposes, the people of this State have a right to empower,
and do hereby fully empower the Legislature to authorize from time to
time, the several towns, parishes, bodies-corporate, or religious
societies within this State, to make adequate provision at their own
expense, for the support and maintenance of public protestant teachers
of piety, religion and morality. Provided notwithstanding, that the
several towns, parishes, bodies corporate, or religious societies,
shall at all times have the exclusive right of electing their own
public teachers, and of contracting with them for their support and
maintenance. And no portion of any one particular religious sect or
denomination, shall ever be compelled to pay towards the support of
the teacher or teachers of another persuasion, sect or denomination.
And every denomination of Christians demeaning themselves quietly, and
as good subjects of the State shall be equally under the protection of
the law: and no subordination of any one sect or denomination to
another, shall ever be established by law. And nothing herein shall be
understood to affect any former contracts made for the support of the
ministry; but all such contracts shall remain and be in the same State
s if this Constitution had not been made.

In 1968, we amended Part 1, Article 6 to read as follows (the same
section in bold):

As morality and piety, rightly grounded on high principles, will give
the best and greatest security to government, and will lay, in the
hearts of men, the strongest obligations to due subjection; and as the
knowledge of these is most likely to be propagated through a society,
therefore, the several parishes, bodies, corporate, or religious
societies shall at all times have the right of electing their own
teachers, and of contracting with them for their support or
maintenance, or both. But no person shall ever be compelled to pay
towards the support of the schools of any sect or denomination. And
every person, denomination or sect shall be equally under the
protection of the law; and no subordination of a ny one sect,
denomination or persuasion to another shall ever be established.

Importantly, the original language of Part 1, Article 6―“electing
their own teachers, and of contracting with them for their support or
maintenance, or both”―gave the Legislature the power to delegate to
local communities full authority over the governance (compare this to
CACR 12: “authority to make reasonable standards for elementary and
secondary public education and standards of accountability”) and
funding mechanisms (compare to CACR 12: “to mitigate local disparities
in educational opportunity and fiscal capacity” and “to determine the
amount of, and the methods of raising and distributing, state funding
for public education.”) of their schools.

Arguably, the 1968 amendment, by removing mention of the “Legislature”
from the amendment, actually made the cities and towns MORE
responsible for paying and running their own schools. In fact, we
argue, combined with Part 1, Article 28-a, the 1968 amendment ensured
a type of home rule for education in New Hampshire. In other words,
the Legislature can’t tell local communities what to do unless it pays
the price. We call that “local control” of schooling.

While the House version of CACR 12 would have restored the
Legislature’s ability to delegate the responsibility to the cities and
towns, by saying the Legislature shall have “full discretion to define
reasonable standards for elementary and secondary public education,”
the “conference” version does not. Again, the “conference” CACR 12
requires that the Legislature “maintain” public schools and grants
that the “Legislature shall have the full power and authority to make
reasonable standards for elementary and secondary public education and
standards of accountability” Goodbye Local Control. Hello Part 1,
Article 28-a court battles.

MOSCA – Local control has never been a constitutional “right” of
political subdivisions. Under Part II, Article 5, it was always the
Legislature’s prerogative to determine how much, if any, local control
there should be. The Claremont/Londonderry decisions asserted that it
is the judiciary, not the Legislature, which gets to make that call.
CACR 12 restores legislative prerogative.

In effect, the “conference” version of CACR 12 takes parents and local
communities completely out of the equation when it comes to defining
“standards for elementary and secondary public education” and it gives
that authority directly to the Legislature. Conservatives believe
parents are in control of their children’s education and delegate some
of that authority to their local schools, under the direction of local
administrators, but parents still maintain most of that authority as
their natural right and can reclaim that authority they have delegated
at any time. The original Constitution shared that view of
responsibility concerning the education of children and curricula
among the people, local communities and the Legislature, and leaves
that responsibility with the people and local communities. One could
argue that because “Legislators” have a “duty ... to cherish … public
education,” they also play a role in this equation. However, by
removing the Legislature from Part 1, Article 6, the Legislature
should have less authority than local communities.

MOSCA – – Local control has never been a constitutional “right” of
political subdivisions. Under Part II, Article 5, it was always the
Legislature’s prerogative to determine how much, if any, local control
there should be. The Claremont/Londonderry decisions asserted that it
is the judiciary, not the Legislature, which gets to make that call.
CACR 12 restores legislative prerogative.

With the “conference” CACR 12 saying the Legislature has “full power
and authority” over curricula, parents and local communities will have
no authority over education, except the scraps that central control
might leave them. That’s something that conservatives cannot and
should not support, and compromising on this principle is
unacceptable. We don’t care how tired you are of the fight, this is
why we’re fighting. We cannot give in to those who wish the state to
have more power over children’s education than their own parents.

MOSCA – – Local control has never been a constitutional “right” of
political subdivisions. Under Part II, Article 5, it was always the
Legislature’s prerogative to determine how much, if any, local control
there should be. The Claremont/Londonderry decisions asserted that it
is the judiciary, not the Legislature, which gets to make that call.
CACR 12 restores legislative prerogative.

Finally, the “conference” version of CACR 12 says this, relative to
funding decisions:

the Legislature shall have the full power and authority … to determine
the amount of, and the methods of raising and distributing, state
funding for public education.

The lawyers driving this effort wrongly believe that this language
will prohibit the court from making certain judgments, by changing the
standard from “strict scrutiny” to “rational basis,” and that this
language qualifies the earlier sentence and restricts the courts’
hand. We argue that the qualifying language is irrelevant, and that
any court capable of upholding Claremont will agree with us. The basis
for “strict scrutiny” is the Claremont decision that established that
an adequate education is a fundamental constitutional right. Nothing
in CACR12 challenges this, and so nothing can change that strict
scrutiny standard. To paraphrase Thoreau: “They hack at the branches,
but have not touched the root.” We keep being told that an amendment
that challenges Claremont will not pass, but the Legislature keeps
refusing to send THAT amendment to the people and striking at the true
root of this problem. Here’s the resultant question: So are we, the
opposition to CACR 12, failing to give the people a voice, or is it
the proponents of CACR 12, who desire to put Claremont into our
Constitution, actually denying the people a voice?

MOSCA – The four Claremont duties are define an adequate education,
determine its cost, pay for the entire cost entirely with state taxes,
and have meaningful standards of accountability, all of which the
court had the final say over. CACR12 completely eliminates these
duties. There is no judicial review over the amount of state funding,
how the funds are raised or how the funds get distributed, judicial
review over standards are based on reasonableness. The standard is
that the challenger must show that no reasonable person could say that
the standards maintain a system of public education. There is no
strict scrutiny review.


Let us be clear: the court has absolutely no authority to require any
of the actions of the last 18 years. Please refer to Part I, Article
29 & 31 and Part 2, Article 2 & 5:

[Art.] 29. [Suspension of Laws by Legislature Only.] The power of
suspending the laws, or the execution of them, ought never to be
exercised but by the legislature, or by authority derived therefrom,
to be exercised in such particular cases only as the legislature shall
expressly provide for.

[Art.] 31. [Meetings of Legislature, for What Purposes.] The
legislature shall assemble for the redress of public grievances and
for making such laws as the public good may require.

[Art.] 2. [Legislature, How Constituted.] The supreme legislative
power, within this state, shall be vested in the senate and house of
representatives, each of which shall have a negative on the other.

[Art.] 5. [Power to Make Laws, Elect Officers, Define Their Powers and
Duties, Impose Fines and Assess Taxes; Prohibited from Authorizing
Towns to Aid Certain Corporations.] And farther, full power and
authority are hereby given and granted to the said general court, from
time to time, to make, ordain, and establish, all manner of wholesome
and reasonable orders, laws, statutes, ordinances, directions, and
instructions, either with penalties, or without, so as the same be not
repugnant or contrary to this constitution,...

The answer to our current quandary is for the Legislature to exert its
true authority to pass all manner of wholesome and reasonable orders,
laws, statutes and etc. and ignore the court’s “strict scrutiny,”
which has no basis in the N.H. Constitution.

MOSCA – Again, those who forget the lessons of the past are doomed to
make the same mistakes. Claremont II – statewide property tax.

An educational funding constitutional amendment not reflecting our
values is simply not worth passing. An amendment reflecting our values
is what we really should be sending to the people. We should exercise
our Constitutional authority as we see fit, regardless of any court
opinions that are as flawed and unenforceable as the Claremont
decisions. If the Legislature wants to continue to do what the court
says, that is its choice, but it is indeed a choice held exclusively
by the Legislature. The Legislature should choose to ignore the
court’s usurpations and do what the Constitution gives it due
authority to do, with or without an amendment. Anything else is a
violation of our elected officials’ oaths of office.

MOSCA – Again, those who forget the lessons of the past are doomed to
make the same mistakes. Claremont II – statewide property tax.

If we fail to rise to the occasion to stand up to the court, then it
matters not if we pass this language. The court will still claim
authority to say that we are not funding an adequate education because
we are not “maintain[ing] a system of public elementary and secondary
education” and nor are we adequately “mitigate[ing] local disparities
in educational opportunity and fiscal capacity.”

MOSCA – Can’t – read the second sentence.

Again, it doesn’t matter if the court can’t say how or how much we
need to fund education, the court will be able to generally say that
the word “maintain” implies that we must fund current levels, plus
inflation, plus cost-of-living adjustments, plus whatever else it
might come up with, including but not limited to “an adequate
education” definition. In summary, the “conference” CACR 12 language
doesn’t get the Legislature or the people anywhere at all. It still
leaves the court in a position to order the Legislature to fund an
adequate education and to say that the Legislature is not doing it
right. In fact, in our opinion, it makes it more likely, not less
likely, for the court to do this, and on top of that, it removes any
remaining authority that our parents and local communities now have.

MOSCA – Can’t make such orders regarding funding – read the second
sentence. CACR12 completely removes the concept of an “adequate
education” so can’t do that either.


What’s worse, with Part 1, Article 28-a in place, the court can and
will make the Legislature fund all additional “reasonable standards
for elementary and secondary public education and standards of
accountability.”

[Art.] 28-a. [Mandated Programs.] The state shall not mandate or
assign any new, expanded or modified programs or responsibilities to
any political subdivision in such a way as to necessitate additional
local expenditures by the political subdivision unless such programs
or responsibilities are fully funded by the state or unless such
programs or responsibilities are approved for funding by a vote of the
local legislative body of the political subdivision.

Part 1, Article 28-a ensures that any, and we mean any, additional
“reasonable standards for elementary and secondary public education
and standards of accountability” that the Legislature passes will be
challenged by local communities, and every time the court will rule
that the standard must be funded by the Legislature. There won’t need
to be any funding method or funding amount noted in the court’s
decision, the Legislature will just have to fund the new mandate,
period. With this new standard in place and a requirement to fund it,
the Legislature will indeed have a new baseline to maintain from that
point forward. The Legislature won’t be able to go below that level,
even if it eliminates the standard later. The court cases will be
piling up, and a broad-based tax will be waiting to happen. The courts
won’t have to require one, they will just repeat, as they did in
Claremont, that the Legislature is not meeting its “duty” to “cherish
… public education,” which is now its “responsibility to maintain.”
The court will insist that the Legislature use its “full power and
authority … to determine the amount of” (no less than the minimum
needed to “maintain”, of course), “and the methods of raising and
distributing, state funding for public education.”

MOSCA – Grasping at straws here. The Court has actually had such a
case, and ruled just the opposite.

CACR 12 changes nothing about the current situation, which is what the
proponents of the “conference” amendment promise us it’s supposed to
do. They promise that these magic words will make the courts stop and
leave us alone if only we cry “uncle” and agree the court was right;
that we are “responsible” and that the state always was “responsible”
to provide this fundamental right to “an adequate education,” which
appears nowhere in the actual document.

MOSCA – Claremont was about the four Claremont duties – define an
adequate education, determine its cost, pay for the entire cost
entirely with state taxes, and have meaningful standards of
accountability, all of which the court had the final say over. CACR12
completely eliminates that.
The RLC is assaulting the proverbial
“straw-man,” not CACR12.

As you digest all that we have told you about CACR 12 and why it is
wrong for New Hampshire, please recall the winter of 1776 when George
Washington was faced with the lowest troop morale of his tenure and
his military coffers were dry. Soldiers were going home without hope
of any success in the war and were resigned to be British subjects
with no freedom. Did our finest president to be give up hope at this
time and raise the white flag of defeat to the British? Well, we all
know the course of history. Washington prayed to Almighty Providence
to give him the troops, dollars and morale he needed to secure liberty
in this land, and those prayers were answered because of his devotion
to principles and his resolve. Are we going to be like our greatest
founder, or are we ready to give in to our enemies?

MOSCA – Claremont was about the four Claremont duties – define an
adequate education, determine its cost, pay for the entire cost
entirely with state taxes, and have meaningful standards of
accountability, all of which the court had the final say over. CACR12
completely eliminates that. If that is “giving in to our enemies,” I
guess that nothing less than lynching the entire judiciary will
satisfy the RLC.


We, the undersigned, urge you to keep up the fight for educational
freedom and the natural right of parents to raise and educate their
children as they see fit. We urge you to help defeat CACR 12 in any
way you can.

Signed, Members of the Natural Rights Council Board:

Reps. Andrew J. Manuse (Derry), Seth Cohn (Canterbury), J.R. Hoell
(Dunbarton), Laura Jones (Rochester), George Lambert (Litchfield),
Mark Warden (Goffstown), John Burt (Goffstown) and Kevin Avard
(Nashua).
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