"The ‘balance of powers’ is supposed to allow any of the three branches to block an unconstitutional order from another, otherwise we would only need one branch of government — the courts. You seem....to consider the judges as the ultimate arbiters of all Constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy." — Thomas Jefferson 

This is the fourth column in a series which discusses the New Hampshire Supreme Court’s Claremont Education Funding decisions, the highly unpopular statewide property tax which emanated from them, and a plan currently afoot in the legislature to remove that yoke from around the legislature’s neck.

"You must be talking about a Constitutional Amendment, right?" Wrong. There are many in the legislature (and I am one of them) who do not believe that a Constitutional Amendment (CA) is appropriate. Passing a CA would only legitimize the Claremont decisions by saying that the constitution is flawed and must be corrected. We don’t believe that the constitution is wrong.  We believe that the NH Supreme Court issued a wrong decision. As the old saying goes, "If it ain’t broke, don’t fix it."

"But how can you do that? Isn’t the court’s decision absolute?" I respond with a scenario proposed by my colleague, Rep. Paul Mirski, (Enfield) — If the court’s right is absolute and the only way we can change a Supreme Court decision is by amending the constitution, what would the legislature do if the court ruled away our right to assemble, speak and vote? If the court so ruled, no CA would be possible. Should the legislature just turn off the lights and go home? I think not!

There is no reason why the legislature or the governor would have to blindly follow a decision of the court if the decision was clearly unconstitutional and wrong. Rep. Mirski asserts that in the case of Claremont I and II, the court denied the people the right of consent with respect to determining local educational policy and it denied them the right to vote on whether or not they would be taxed for what educational policy the state would make without their input. It left to the legislature the nature of that tax but indeed required that a tax be levied.

Finally he declares, "That's taxation without consent. That's the Stamp Act. That's the Townsend Duties. The Claremont decisions deny us our fundamental rights as surely as if the court had denied our right to assemble, speak and vote. The legislature can just say 'NO!' when the court acts so."

Each of us in the legislature took a vow to support the constitution of the state of New Hampshire. Following that oath, the legislature should challenge the court by telling it that the court did, in fact, get it wrong and we will not follow it.

House Concurrent Resolution 14 (HCR 14) is a joint resolution of the House and the Senate that does just that. It has been filed in the House of Representatives and should be decided very early in both the House and the Senate when the legislature comes back in January. HCR 14 does not warrant the signature of the governor and will not require a general ballot vote. It is a statement of the legislature.

Successful passage of HCR 14 will require no new taxes while paving the way for the repeal of the statewide property tax, total elimination of "donor" towns and no reduction in the amount of education aid being distributed. In my next column, I will discuss HCR 14 — what it says, what it will do and how it will do it.