For some three decades, Rep. Bob Lynn served as a judge, ascending to the pinnacle of his profession. Upon retiring from his post as chief justice of the New Hampshire Supreme Court in 2019, Lynn became a politician, serving his hometown of Windham as a Republican state representative.
As his party decides whether to comply with a Supreme Court decision ordering the legislature to drastically increase state funding for education, the two branches of government in which Lynn has served are at odds.
“It’s going to make it very tough for what exactly happens now,” he said in an interview this week. “This is really something of a conundrum.”
In July, a day after the Supreme Court released its decision, Republican House Majority Leader Jason Osborne openly considered defying what he described as the court’s “cute opinion.”
“I’m not sure that it actually means much of anything,” he said during a radio appearance. “We 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.”
Osborne’s threat to ignore the order stood as the official word from Republican leadership throughout the summer’s legislative recess. This week, however, as legislators returned for the first committee hearings of the fall, it became clear that other Republican leaders might not be as intent on disregarding the judiciary as their caucus’s leader.
“I think that the legislature and the executive branch owe respect to what the court has done,” Lynn said. “Now, whether that means – what the translates in terms of what the legislature does – is to a great extent, up to the legislature.”
In its ruling, the Supreme Court found that the current base aid New Hampshire provides school districts – $4,266 per student this school year – is too low to satisfy the state’s constitutional duty to provide an adequate education. The court ordered the legislature to raise it and, for the first time, set a specific dollar amount —$7,356 — which the ruling characterized as “a conservative minimum threshold” that should serve as “guidance for future legislative action.”
Most Republicans – Lynn included – believe that funding decisions are the prerogative of the legislature alone, not courts.
“Maybe you guys in the judiciary should mind your own business,” Osborne said back in July.
NH House Majority Leader Jason Osborne, R-Auburn Credit: Courtesy
As much as Lynn disagrees with the ruling and believes it was a judicial overstep, though, he also said he harbors concerns about the message that ignoring it would send.
“It’s always a matter of respect, if you want to call it that, rather than power, about how the other branches react to what the court has done,” Lynn said. “If the legislature didn’t comply in some fashion – or didn’t comply to the satisfaction of the court with some decision that the court made – what is the remedy for that?”
On Wednesday, Lynn, the chairman of the House Judiciary Committee, presided over discussion of a resolution that would declare the Supreme Court’s 1990s school funding decisions non-binding. Those decisions, which found that the right to an adequate education is enshrined in the state constitution, serve as the foundation for this year’s ruling.
Though Lynn said later that he found the resolution “useless” because he believed it would have no practical effect, he declined to bring it to a vote, citing a need for additional direction from his party’s leadership.
That decision drew the ire of Democrats on the committee, who accused him of failing to take a stand on what they characterized as judicial nullification.
“I understand that people don’t like decisions that are being made,” said Rep. Marjorie Smith, a Durham Democrat. “I don’t like a lot of decisions that are made day after day after day, but I happen to believe in the basic framework of our government – silly me.”
She challenged fellow lawmakers to consider basic civics.
“Are we to say that the basic concept of the three branches of government should be thrown out the window because there are some who do not like some of the decisions?” Smith asked. “Because, brother, if that’s where we’re going, I can see a lot of chapters following this.”
Spokespeople for House Republicans and Gov. Kelly Ayotte did not respond to requests for comment this week.
Underpinning the debate about how to respond to the court’s order is a longstanding partisan disagreement about how schools should be funded in the state. Though total spending on education in New Hampshire is high compared to other states, the state itself contributes the lowest percentage to the total cost in the country, a report from the National Education Association found.
That system means the brunt of funding for education is raised through local property taxes, causing tax burdens to vary widely based on a town’s total property value.
Republican leaders have argued that reshaping the education funding model by raising the statewide education property tax would simply restructure how the money was raised without diminishing the total tax burdens residents face. However, a higher statewide property tax could serve to level the playing field, advocates argue, by decreasing total taxes in low-income communities and raising them in wealthier ones.
Though a decision on how the Republican party will respond to the court ruling seems likely to come from party leaders, the legislative discussion will play out in the House Education Funding committee, which is chaired by Rep. Rick Ladd, a Haverhill Republican.
From left to right, Sen. Debra Altschiller, D-Stratham, Sen. Ruth Ward, R-Stoddard, and Rep. Rick Ladd, R-Haverhill, enter a heated discussion over how best to scrutinize education freedom accounts, on Tuesday, Nov. 12, 2024. Credit: ETHAN DeWITT—New Hampshire Bulletin
Ladd said in an interview that he believed “there’s been an overreach” by the court, but that he wouldn’t ignore the thrust of the order, either. He said he has established a number of subcommittees to study bills that were retained last legislative session.
“We may say what we’re doing is absolutely correct,” he said. “Or we may say we need to tweak here or there. I don’t think there’s a need for any kind of radical change.”
Ladd’s Democratic counterpart on the committee, ranking member Rep. Dave Luneau of Hopkinton, said he has heard privately from Republican colleagues since the court decision who want to pass meaningful school funding reforms.
“Even though the Republicans who serve in the speaker’s office and lead their party are saying one thing, I don’t think they’re being responsive to the rank-and-file Republicans who are representing people all across the state that are basically buried under property taxes,” he said in an interview this week.
Ladd and Luneau said their committee is also working on a legislative response to funding for special education, which had risen sharply in recent years. Last month, a superior court judge found that the amount the state allocates to local school districts for each student with a disability – $2,185 – fails to cover the cost of special education services, which average roughly $31,000 per student.
Ladd said his committee is awaiting data from the Department of Education on special education expenditures and guidance from party leaders.
“There’s a lot of possible directions which we’ve got to put on the table,” he said, “but I’m not at the point where I can get into much of that with you until I meet with the rest of the legislature.”
