By GARRY RAYNO, InDepthNH.org
CONCORD — The attorney general’s office wants the state Supreme Court to block a judge’s order for the state to increase education funding immediately.
Judge David Ruoff rejected the state’s request to reconsider his ruling on the ConVal case and to stay its implementation until an appeal to the Supreme Court is decided.
His ruling would increase per-pupil education adequacy grants from $4,100 to $7,356 per pupil, with the final quarterly payment this fiscal year from the state to cities and towns due April 1.
The change in per pupil aid would increase the state’s financial obligation by $537.55 million annually.
The state filed its stay request to the Supreme Court Feb. 28, and is expected to file its appeal of Ruoff’s ConVal decision in the next couple of weeks, according to Senior Assistant Attorney General Sam Garland, who spoke to the House Ways and Means Committee Wednesday.
Yesterday, Rep. Tracy Emerick, R-Hampton, proposed an amendment at a House Finance sub-committee, that would raise the per-pupil grant to $7,356 and increase the money raised by the Statewide Education Property Tax to $773 million annually from the current $363 million, more than doubling the rate and creating more than the now about 25 “donor towns.”
The amendment was proposed for House Bill 1583, which would increase state education funding by $130 million over the next two fiscal years.
How the SWEPT is administered was the heart of the Rand case, the second education funding lawsuit Ruoff ruled on in November finding it has varying rates, while the constitution calls for proportional and reasonable state taxation.
A group of donor communities called the Coalition Communities 2 that intervened in the case, has filed an appeal to the Supreme Court, but the state has yet to do so.
The group argues the order creates major disruptions in the currently ongoing municipal and school budget process, but the group has yet to seek a stay from the Supreme Court, according to Garland.
The House Ways and Means Committee has several bills that would change the SWEPT to conform to the judge’s order as well as add additional money to the state Education Trust Fund which is used to pay for the adequacy grants as well as other education expenses including the Education Freedom Account program that has grown to about $30 million this fiscal year.
Several members of the committee asked Garland if they should try to address some of the rulings’ contentions or wait until the Supreme Court rules, and he said the court and the legislature are two distinct branches, but in past Supreme Court decisions, the legislature was given some time to address the areas at issue.
The legislature’s focus is on policy questions, while the court is concerned about legal and constitutional issues, he noted.
Rep. Susan Almy, D-Lebanon, said she suspected the legislature would not act until next year, and the committee should put forward proposals for next year.
Garland noted the Ruoff order directed payments go forward now under the ConVal case while the appeal is pending, and the Supreme Court will decide if that occurs.
With the SWEPT order in the Rand case, it will take some time for the budget process to collect the money and send it to the Department of Revenue Administration and the legislature will decide how it is spent, he said.
“It is not clear-cut litigation,” Garland said.
Almy said if the Emerick amendment goes through there will be many more than a few donor towns screaming about it.
“That will be a very difficult political environment,” Almy said. “A larger group of towns would probably make it impossible to pass anything in the legislature.”
“That is one of the challenges,” Garland noted. “It is not lost on me that litigation and legal questions affect or influence the larger policy questions.”
Several members of the committee also noted that in other states that have gone through similar litigation like Massachusetts with the same constitutional phrase that was the foundation of the original Claremont ruling, the state is not expected to pay 100 percent of the cost of education.
Rep. Richard Ames, D-Jaffrey, said in Massachusetts funding education included a uniform contribution that localities meet to pay part of the cost, and wondered if there had been any suggestion of a similar program here, a joint enterprise with local school districts and municipalities and the state.
It should include the recognition that localities are already contributing a significant amount of money for the cost of education, he said.
Other members of the committee had similar thoughts.
The request to stop the implementation of the ConVal decision says the judge went beyond what the state has defined as an adequate education through legislation and Department of Education rules.
“Instead, the trial court decided what items should be included in a constitutionally adequate education based predominantly on the witness testimony of school districts,” the motion states. “In doing so, the trial court overstepped its authority to construe the law and stepped into the role of the legislature defining for itself what a constitutionally adequate education should encompass.”
“The trial court’s merits order reads much like a legislative committee report crafted after a lengthy legislative hearing, where the trial court is not interpreting the law, but is instead engaged in one-sided legislative fact-finding,” the attorney general’s office wrote.
The state again claims the ConVal ruling is a violation of separation of powers in a number of ways and it is the legislature’s purview to set policy.
And they say the state cannot increase aid immediately as the order requires because the additional funds needed have not been appropriated. There is not enough money in the Education Trust Fund to pay the additional money to the communities and the projected general fund surplus would not be enough to meet the full requirement, the attorneys argue.
“The State will also suffer irreparable harm if the trial court’s orders are not stayed,” the attorneys write. “If this Court reverses the trial court in whole or in part, even if it concludes solely that the trial court erred in picking a new funding figure and requiring the State to pay that amount pending appeal, and one or more state officials acquiesce to the trial court’s direction, millions of dollars in unrecoverable taxpayer funds will have been lost.”
The issue at hand is resources and not harm to students, the motion notes, while the irreparable harm is to the state.
The state asks the Supreme Court to decide on the stay motion before March 13, and to block implementation of the ConVal order and the ruling denying the state’s request for reconsideration and to stay the order.
The plaintiff’s attorneys indicated they oppose the state’s motion and will file their motion opposing the state’s motion within the 30-day post-order period set by the Superior Court.
Garry Rayno may be reached at garry.rayno@yahoo.com. Garry is InDepthNH.org’s State House bureau chief. He has been a reporter for 40 years.