By GARRY RAYNO, InDepthNH.org

CONCORD — The state wants a Superior Court ruling on education funding to be reconsidered by the judge, and to stay an injunction requiring legislative action to fix the system.

The state did not ask the same judge to reconsider his order finding the Statewide Education Property Tax unconstitutional as it is currently administered.

But the attorney general does want Rockingham Superior Court Judge David Ruoff to halt the injunction in his order in the Conval and other school districts’ case where he found the state fails to provide enough funding for an adequate education and set the minimum amount at $7,356 per pupil, which is significantly higher than the current per pupil payment of $4,100.

In his decision Ruoff acknowledged his figure should probably be much higher at around $9,929 per pupil, and that the final decision will be the legislature’s to make.

The state is claiming the ruling should not go into effect until there is a final order as the state intends to appeal the decision to the state Supreme Court and a full legislative cycle of one year before it would go into effect.

That would mean the ruling would not take effect July 1, 2026, although there is nothing to stop the legislature from acting as early as the upcoming session. There are several bills that will be introduced that address the rulings.

The state also contends, as it did during the Superior Court trial, that the legislature has sole authority to pass laws, and consequently the decision violates the separation of powers provision of the constitution.

“The separation-of-powers protections contained in Part I, Article 37 of the New Hampshire Constitution prevent the judicial branch of government from forcing the legislative branch to enact laws in a manner the judiciary prefers,” according to state solicitor general Anthony J. Galdieri.

The attorney general’s office also maintains it is beyond the court’s power to mandate the legislature solve a complex policy like adequate education funding in a particular way, saying lawmakers have broad discretion to address the issue by changing the law, changing the definition of an adequate education or changing the funding formula to fix the issues raised in the court case.

“However, by dictating to the General Court that it must fix the base adequacy amount in RSA 198:40-a, II(a) and establish a new amount that exceeds $7,356.01, this court has materially impaired the General Court’s lawmaking function in a manner that violates the separation of powers and is unconstitutional,” the state writes in its motion for reconsideration. “The General Court is tasked under the State Constitution with making the law. The judicial branch may intervene only after a legislative enactment has been passed and challenged in an action properly before it. The judicial branch may not, consistent with separation of powers principles, force the General Court to enact legislation that manages to a particularized court-imposed standard or preference.”

The state argues the court has stepped over the line in its decision when all past court decisions have given the legislature sole authority to act including citing the Londonderry decision.

However the Londonderry decision says the court will step back to allow the legislature to address the issue, but there is a limit.

“Respectful of the roles of the legislative and executive branches, each time this court has been requested to define the substantive content of a constitutionally adequate public education, we have properly demurred. Deference, however, has its limits. We agree with Justice Galway’s concern that this court or any court not take over the legislature’s role in shaping educational and fiscal policy. For almost thirteen years we have refrained from doing so and continue to refrain today. “However, the judiciary has a responsibility to ensure that constitutional rights not be hollowed out and, in the absence of action by other branches, a judicial remedy is not only appropriate but essential.”

In his decision, Ruoff noted the education funding issue has become a question of political will and a politically charged issue and with his decision that should end.

NH School Funding Fairness Project Executive Director, Zack Sheehan, said the state’s motions are not surprising but are disappointing, noting the state has used similar delaying tactics in other education cases.

“The track record of the legislature, as exemplified by decades of inaction, is not one of proactive, meaningful reform to school funding to fulfill the constitutional right of New Hampshire students to an adequate education,” Sheehan said. “There are proposed bills that could start to address the deep inequities in school funding and taxation that have already been filed for this legislative session. All we need is for the legislature to stop delaying and get to work.” 

The state in its motions to stay and reconsider the decision also asks to delay setting attorneys fees which Ruoff awarded to the plaintiffs.

The state says the ultimate outcome is yet to be determined because the ruling will be appealed and asks attorneys fees be determined after a final decision by the state Supreme Court.

In the Conval case, the plaintiffs claimed a deprivation of a fundamental right to an adequate education because the state aid was inadequate and that shifts the burden to local property taxes, whose rates vary widely in violation of the constitution’s proportional and reasonable provision for taxation.

However, the state’s position was that the plaintiff’s evidence was fundamentally flawed, the judge noted.

“Relying on that view, the State’s trial strategy was to criticize or otherwise attempt to undermine the plaintiff’s evidence, rather than presenting affirmative evidence defending the sufficiency of the base adequacy aid,” Ruoff wrote in his decision.

“The State presented no evidence to justify the current base adequacy amount.”

The judge said there are three questions presented: what are the components or cost-drivers of a legislatively defined adequate education, and what is not included; what funding is necessary for school districts to provide those components, and how does that compare to the state aid currently provided. 

The Supreme Court sent the case back to Superior Court and said the costs needed to be defined and then reach a decision, which is what Ruoff did in his decision.

Garry Rayno may be reached at garry.rayno@yahoo.com.