Claremont School Dist. v. Governor

• Decision Date: 30 December 1993
• Docket Number: No. 92-711,92-711
• Citation: 635 A.2d 1375,138 N.H. 183
• Parties: , 88 Ed. Law Rep. 1102 CLAREMONT SCHOOL DISTRICT and another, v. GOVERNOR and another.
• Court: New Hampshire Supreme Court

Page 1375

635 A.2d 1375

138 N.H. 183, 88 Ed. Law Rep. 1102

CLAREMONT SCHOOL DISTRICT and another, v. GOVERNOR and another.

No. 92-711.

Supreme Court of New Hampshire.

Dec. 30, 1993.

Shaheen, Cappiello, Stein and Gordon, (Andru H. Volinsky and Arpiar G. Saunders, Jr. on the brief, and Mr. Saunders orally), Sulloway and Hollis, (John Burwell Garvey on the brief), and Edward Damon, Concord, on the brief, for plaintiffs.

Jeffrey R. Howard, Atty. Gen. (Leslie J. Ludtke, Sr. Asst. Atty. Gen., on the brief and orally), for State.

New Hampshire Legal Assistance, Concord (John E. Tobin, Jr. and Abigail Turner on the brief, and Mr. Tobin orally), for Marie Ayer, Charles and Jeanne Watson, and John Bowler, as amici curiae.

McLane, Graf, Raulerson & Middleton P.A., Manchester (Jack B. Middleton and Wilbur A. Glahn, III on the brief), for Ralph Degnan Hough, President of the New Hampshire Senate.

James F. Allmendinger, Concord, Staff Atty., NEA-New Hampshire, by brief for NEA-New Hampshire, as amicus curiae.

Theodore E. Comstock, Concord, General Counsel, New Hampshire School Boards Ass'n, by brief for New Hampshire School Boards Ass'n, as amicus curiae.

Douglas & Douglas, Concord (Robert J. Rabuck on the brief), for Granite State Taxpayers' Ass'n and Granite State Legal Foundation, as amici curiae.

John S. Lawton, by brief, pro se, as amicus curiae.

BROCK, Chief Justice.

The Superior Court (Manias, J.) dismissed the plaintiffs' petition for injunctive relief and declaratory judgment for failure to state a claim upon which relief could be granted. The plaintiffs appeal the court's conclusion that the New Hampshire Constitution imposes no duty on the State to support the public schools. We hold that part II, article 83 imposes a duty on the State to provide a constitutionally adequate education to every educable child in the public schools in New Hampshire and to guarantee adequate funding. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

The plaintiffs are five "property poor" school districts and five school children and five taxpayers, one from each of the school districts. They filed a petition for declaratory judgment alleging, in six counts, that the system by which the State finances education violates the New Hampshire Constitution: in counts (1) and (2) that the State fails to spread educational opportunities equitably among its students and adequately fund education, both in violation of part II, article 83; (3) that the foundation aid statutes, RSA 198:27 through 33 (1989), unconstitutionally restrain State aid to public education by capping State assistance at eight percent; (4) and (5) that both the State school finance system and the foundation aid statutes deny plaintiffs equal protection; and (6) that the heavy reliance on property taxes to finance New Hampshire public schools results in an unreasonable, disproportionate, and burdensome tax in violation of part II, article 5 of the State Constitution.

Part II, article 83, adopted in 1784 as part of this State's Constitution, originally stated:

"[Art.] 93. [Encouragement of Literature ...] 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, manufacturers, 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."

The provision was amended in 1877 to prohibit money raised by taxation from being used by religious schools and again in 1903 to add language concerning control of corporations and monopolies.

The trial court granted the defendants' motion to dismiss each of the six counts. Its order states in part:

"New Hampshire's Encouragement of Literature Clause contains no language regarding equity, uniformity, or even adequacy of education. Thus, the New Hampshire Constitution imposes no qualitative standard of education which must be met. Likewise, the New Hampshire Constitution imposes no quantifiable financial duty regarding education; there is no mention of funding or even of 'providing' or 'maintaining' education. The only 'duty' set forth is the amorphous duty 'to cherish ... public schools' and 'to encourage private and public institutions.' N.H. Const., pt. 2, art. 83. The language of pt. 2, art. 83 is hortatory, not mandatory.

In view of the foregoing, the Court finds that the N.H. Const., pt. 2, art. 83 imposes no duty as set forth in count one to equitably spread educational opportunities and advantages or as set forth in count two to equitably and adequately fund education. Absent such a duty, counts one and two of the plaintiffs' petition fail to state a claim upon which relief can be granted, and therefore, both counts must be dismissed."

Because we conclude that the trial court's determination that the State had no constitutional duty to support public education so permeated its decision to dismiss counts one through five, we will, at this time, address only the question of whether part II, article 83 imposes such a duty. With respect to count six, because petitioners have not had an opportunity to develop a record in support of their claim, we remand that count to the trial court for its further consideration. Our narrow task, therefore, is to determine whether the trial court committed legal error when it concluded that no duty exists.

"In interpreting an article in our constitution, we will give the words the same meaning that they must have had to the electorate on the date the vote was cast." Grinnell v. State, 121 N.H. 823, 826, 435 A.2d 523, 525 (1981) (quotation omitted). In doing so, we must "place [ourselves] as nearly as possible in the situation of the parties at the time the instrument was made, that [we] may gather their intention from the language used, viewed in the light of the surrounding circumstances." Warburton v. Thomas, 136 N.H. 383, 387, 616 A.2d 495, 497 (1992) (quotation omitted).

Numerous state courts have in recent years decided cases challenging, on constitutional grounds, systems of financing public education. Most of those cases are of limited value to this court because the constitutional provisions at issue contain language dissimilar to ours and were adopted under circumstances different from those existing in New Hampshire in the 1780s. Massachusetts, however, presents an exception. Given that New Hampshire shares its early history with Massachusetts, that we modeled much of our constitution on one adopted by Massachusetts four years earlier, and that the Massachusetts Constitution contains a nearly identical provision regarding education, we give weight to the interpretation given that provision by the Supreme Judicial Court in McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545, 615 N.E.2d 516 (1993). See Warburton v. Thomas, 136 N.H. at 391, 616 A.2d at 500.

An obvious starting point in interpreting part II, article 83 is to determine what the particular words used meant in 1784: "Encouragement: Incitement to any action or practice, incentive; favour, countenance, support," T. Sheridan, A General Dictionary of the English Language 1780 (Scolbar Press 1967); "Literature: Learning; skill in letters," id.; "Diffused: Spread abroad, widespread; dispersed over a large area; covering a wide range of subjects," Oxford English Dictionary (2d ed. 1989); "Generally: so as to include every particular, or every individual," id.; "Duty: That to which a man is by any natural or legal obligation bound," Sheridan supra; "Cherish: To support, to shelter, to nurse up," Sheridan supra. See also McDuffy, 415 Mass. at 562 n. 17, 615 N.E.2d at 525 n. 17.

The Encouragement of Literature clause, incorporating the sense of these definitions, thus declares that knowledge and learning spread through a community are "essential to the preservation of a free government," and that "spreading the opportunities and advantages of education" is a means to the end of preserving a free, democratic state. The duty of ensuring that the people are educated is placed upon "the legislators and magistrates, in all future periods of this government," and that duty encompasses supporting all public schools:

"The breadth of the meaning of these terms ('duty ... to cherish'), together with the articulated ends for which this duty to cherish is established, strongly support ... that the 'duty ... to cherish ... the public schools' encompasses the duty to provide an education to the people of the [state].... [I]t is reasonable therefore to understand the duty to 'cherish' public schools as a duty to ensure that the public schools achieve their object and educate the people."

McDuffy, 415 Mass. at 564, 615 N.E.2d at 526.

We do not construe the terms "shall be the duty ... to cherish" in our constitution as merely a statement of aspiration. The language commands, in no uncertain terms, that the State provide an education to all its citizens and that it support all public schools. Decisions of this court are consistent with this conclusion. See In re Davis, 114 N.H. 242, 243, 318 A.2d 151, 152 (1974) (State Constitution "imposes upon government the duty of providing for the education of its citizens"); State v. Jackson, 71 N.H. 552, 553, 53 A. 1021, 1022 (1902) ("the injunction 'to cherish the interest of...