By GARRY RAYNO, InDepthNH.org

CONCORD — The judge who issued the latest education funding orders last year dropped two bombshells Tuesday in denying the state’s request to stay the orders until they can be appealed to the state Supreme Court.

Rockingham County Superior Court Judge David Ruoff told the state to begin paying school districts the $7,356 per student in adequacy aid he set in his Conval School District ruling last year, and to collect the excess money wealthy towns were allowed to keep from the Statewide Education Property Tax and stop setting negative local school tax rates so small school districts with none or few students would not have to pay the statewide tax, in upholding his ruling in Rand and others versus the State.

In his two rulings, Ruoff for the second or third time rejected the attorney general’s contention setting the rate for adequate education aid rate would violate the separations of powers provision of the state constitution, and wrote his adequacy figure was a minimum and did not prevent the legislature from changing the system or setting a higher rate, but the legislature’s past failures to pay for a constitutionally required adequate education caused him to set a minimum rate.

“The court carefully considered the relevant separation of powers concerns when issuing the Base Adequacy Aid Order,” Ruoff writes.  “Ultimately, the Court concluded that those concerns must be balanced against the reality that the right to ‘a constitutionally adequate public education is a fundamental right.’”

In his responses to the state’s motions, Ruoff cites Aesop’s Fables, and past Supreme Court rulings in the Claremont Education lawsuit, in denying all but two motions, one for  the state to have 60 days to respond to the Conval  plaintiffs’ request for attorneys’ fees and the other that his ruling on the statewide property tax be considered final although there are several other issues to be settled in that case.

Ruoff denied both motions to reconsider his decisions and to stay implementation of his orders until the appeal process is complete and the legislature has had a legislative session after the final Supreme Court decisions to act on the decisions.

Mike Garrity, spokesman for the Attorney General’s Office, said: “We are currently in the process of reviewing the judge’s decisions and will respond as appropriate. We do plan to file appeals in both cases.”

Ruoff had ruled the state’s collection method for the SWEPT by allowing property wealthy communities to keep excess funds and small unincorporated places with negative tax rates was unconstitutional because the effect was to have differing tax rates for communities while the constitution requires taxes to be proportional and reasonable.

In the Conval case, he found the education funding system to be unconstitutional because it required cities and towns to pay a large share of the cost of an adequate education which is the state’s obligation and therefore are state taxes that need to be proportional and reasonable, when they are widely varying rates across the state.

He found that the state had failed to pay its full share of an adequate education which was determined during the trial to be around $9,900 per student, but Ruoff set his “conservative minimum” at $7,356.

Rand

Both the state and the Coalition Communities had asked Ruoff to stay his order with the group of property wealthy communities saying the order implemented now would put dozens of communities in crisis and facing million-dollar deficits.

“The court remains both unpersuaded and deeply troubled by the characterization of the plaintiffs’ injuries as a ‘mere’ violation of their constitutional rights,” the judge said, because they will not immediately benefit from changing how the tax is administered.

“The Court concludes that although the plaintiffs will not sustain an immediate fiscal benefit from the disgorged funds they will derive significant benefit from injunctive relief that cures the above-described constitutional violations,” he writes.

He also notes the litigation has been going on for well over a year, and the coalition communities should have planned for such a decision in the current budget process, but did not.

Ruoff quotes from Aesop’s Fables Together with the Life of Aesop writing “if the people are ‘wise like Aesop’s ant, during the summer and autumn of their lives they store up something for the winter.’”

Ruoff also noted if the state wants to contest the Department of Revenue Administration’s authority to collect the money from the wealthy and small unincorporated places that benefited from the methodology for collecting the tax and holding it in escrow until the appeal is decided, it should file a timely motion for reconsideration on that narrow issue.

Conval

The state contends that setting the base adequacy infringed on the legislature’s constitutional responsibility to decide the amount and policy for the people of the state.

Ruoff noted he was concerned as well but the Supreme Court had remanded the case back to the superior court to determine the cost of an adequate education.

“The threshold set forth in the Base Adequacy Aid Order does not prohibit the legislature from meaningfully altering the education funding scheme, so long as such alterations provide New Hampshire children with the opportunity for a constitutionally adequate public education,” Ruoff writes. “Instead, the threshold establishes a minimum level of per-pupil funding — exclusive of the additional costs attributable to the heightened needs of students who qualify for differentiated aid — under the existing formula.”

He notes the ruling allows the plaintiffs to seek declaratory relief without need for further protracted litigation.

Ruoff answers concerns raised by the state about continuing to go forward with the current funding system, by saying the state has a constitutional duty to do so, and notes the current $4,100 per pupil level is “woefully inadequate” and unconstitutional, so he directs the state to set base adequacy payments at $7,356.

“As a result, temporary funding of base adequacy aid at the threshold level will still result in a regrettable delay in achieving a constitutional system,” Ruoff writes. “Yet under the ‘extraordinary circumstances’ presented here, the Court concludes that this compromise strikes an appropriate balance between the parties’ competing interests while the state pursues appellate relief or further legislative action.”
This week the House will act on a plan to raise education funding by $100 million beginning in the next fiscal year, and another $30 million the year after.

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

Garry is InDepthNH.org’s State House bureau chief and has been a reporter for 40 years.