By GARRY RAYNO, Distant Dome
Education funding reform advocates scored a nearly walk-off grand slam last week with the state Supreme Court’s ConVal ruling.
Senior Associate Justice James Bassett along with special justices, retired Superior Court Chief Justice Tina Nadeau, and retired Superior Court Justice Gillian Abramson, clearly stated in the decision that the court’s Claremont rulings I and II and beyond remain the law of the land, although the legislature has yet to fully comply with those decisions.
Writing for the majority, Bassett, who is retiring next month, wrote, “We urge the legislative and executive branches to act expeditiously to ensure that all the children in public schools in New Hampshire receive a state funded constitutionally adequate education.”
Similar to his dissent in the Rand ruling last month written by Chief Justice Gordon MacDonald, Bassett quoted freely from the earlier court rulings to make his points and laying out his reasoning and justifications for his opinion.
He clearly followed precedent of the Supreme Court’s numerous education funding rulings in both ConVal’s majority opinion and in his dissent in the Rand case.
However, the majority justices in the ConVal ruling split on how Superior Court Justice David Ruoff’s ruling should be enforced: an injunction ordering lawmakers and the governor to increase state education aid $538 million to bring the state’s share of education aid to at least $7,356 per pupil, up from $4,266 which the state pays today, or give the legislature and governor more time to comply.
Nadeau and Abramson sided with Ruoff and his immediate injunction while Bassett joined supreme court associate justices Patrick Donovan and Melissa Countway in saying the injunction ordering the state to pay goes too far.
“Although we have rejected the proposition that the separation of powers doctrine categorically prohibits the judiciary from awarding injunctive relief like the immediate payment directive should the circumstances and the equities dictate,” Bassett wrote, “we conclude that, under the unique facts of this case, the trial court did not accord sufficient weight to separation of powers considerations in crafting the specific injunctive relief that it ordered.”
But Nadeau and Abramson argued lawmakers and the governor have had ample time to meet the court’s original Claremont rulings, but have failed to do so.
“We believe that the proper remedy cannot be to allow the legislature to continue to idle,” Nadeau wrote. “We fear that the longer the judiciary waits to carry out its constitutional duty to provide a meaningful remedy in school funding cases, the more likely it is that the legislature will continue to ignore its obligation to fund the constitutional right to an adequate education.”
Taken together the ruling says that Ruoff did what the Supreme Court told him to do when it sent the ConVal case back to superior court to determine what constitutes an adequate education and what does it actually cost.
The ConVal School District filed the suit in 2019 arguing the state had failed to live up to its constitutional obligation to pay for an adequate education for public school students. The case was joined by other school districts including the state’s three largest cities Manchester, Nashua and Concord.
Ruoff ruled in ConVal’s favor, and the state appealed it to the supreme court which said the superior court first needed to use “law and facts” to determine the components of an adequate education and what they cost.
A three-month trial was held and Ruoff released his decision in late 2023 and the state appealed.
During the appeal, the GOP House leadership and other party faithful signed on to an amicus brief by Gregory Sorg of Franconia that argued the Supreme Court erred in its original Claremont decisions and the court should overturn it like the US Supreme Court did earlier in Roe vs Wade.
A statement after last week’s decision from House Speaker Sherman Packard and Senate President Sharon Carson echoed that brief’s contentions.
While Democrats encouraged their colleagues to act in the 2026 legislative session, the likelihood of that happening is about the same as the legislature’s record for meaningful reform over the last 30 years, which is negligible.
In that time, the legislature has had numerous opportunities to overhaul the state education funding system so all children in public schools have an opportunity for an adequate education and taxpayers in property poor communities do not need a second mortgage every year to pay their property taxes or lose their homes.
During the last 30 years, lawmakers proposed more constitutional amendments to remove the courts from education policy and funding than they did meaningful reforms of the antiquated system based more on medieval serfdom than a 21st Century tax system.
While the ConVal decision is encouraging for advocates of education funding reform, the court’s other recent education funding decision is problematic for any hope of change, as Chief Justice Gordon MacDonald appeared to bend over backwards to placate the legislative and executive branches in ruling the current administration of the Statewide Education Property Tax is constitutional.
In his ruling MacDonald ignored several court rulings on similar instances of effective tax rates that are inequitable to taxpayers not in property wealthy communities. In both the court’s ABC and Londonderry decisions, the court called those plans “legislative mischief.”
In his dissent he quoted from an earlier court ruling about effective tax rates.
“We concluded that ‘while the bill proposes a tax based on an equalized valuation and initially assigns a uniform rate, clearly some taxpayers would pay a far higher tax rate in furtherance of the State’s obligation to fund education than others, due to the special abatement. . . .Because such disproportionality is not supported by good cause or a just reason, it violates both the plain wording of Part II, Article 5 and the express language of Claremont II.’”
The other current education funding case pending in the courts is the Rand et al versus the state.
MacDonald’s decision for three of the four court members came from one area of the Rand case over the statewide property tax and allowing wealthier communities to retain excess money they raise to provide the state’s share of an adequate education for each of their students and unincorporated places to effectively pay no statewide property tax at all.
MacDonald’s decision was that if the tax is assessed at equal rates that is enough to meet the constitution’s requirement for proportional and reasonable state taxation no matter if allowing the property wealthier communities to retain excess money gives taxpayers a lower effective rate than the rest of state’s taxpayers.
Unlike Bassett’s dissent and his majority opinion in ConVal, MacDonald’s opinion does not follow court precedent in the numerous education funding decisions as outlined in Bassett’s dissent.
MacDonald recused himself from the ConVal decision because he was Attorney General when the suit was filed and was involved in developing the state’s strategy.
He refused to recuse himself from the Rand case although the attorneys in that case asked him to do so.
The remaining area of the Rand case is similar to the ConVal suit with the plaintiffs arguing the state has failed to meet its constitutional obligation to pay for an adequate education and instead relies on local property taxpayers to pick up a portion or the state’s share.
When local property taxpayers provide a portion of the state’s share of education aid that is essentially state money and therefore the tax rates have to be proportional and reasonable, the plaintiffs argue.
Ruoff has not issued a ruling on that issue although the trial was held last fall.
Whatever his decision is, one side or the other will appeal it to the Supreme Court and a different court will sit from the one that decided the ConVal case.
Judging by MacDonald’s earlier decision on SWEPT, he may be more likely to side with Donovan and Countway on the issue of the state’s constitutional obligation.
Bassett is retiring in August and Justice Barbara Hantz Marconi, who is on administrative leave for allegedly interfering with the state’s investigation of her husband, Geno Marconi, who was the Director of the NH Port Authority, is not likely to return to the bench.
That would give Gov. Kelly Ayotte two appointments to the state Supreme Court in the near future.
What was her reaction to the ConVal decision? “The Court reached the wrong decision today. The fact is, New Hampshire is top 10 in the country when it comes to funding our children’s education,” Ayotte said. Yes, top 10 in spending and dead last in state support for public education in the country and the highest in percentage of local support, or local property taxes.
Too many Republicans and Democrats have no desire to change the current tax system in New Hampshire, which has to happen for real education funding reform that would lower local property taxes for education.
Even if the governor does not nominate any new judges before the Rand decision is appealed, there maybe three votes on the Supreme Court to maintain something that resembles the current inequitable system for students and taxpayers.
And if education becomes a litmus test for the governor or the five Executive Councilors who would have to vote on the new judges, the law of the land may change.
The grand slam this week may become a walk off for the other team.
Overturning the Claremont decisions may become reality and add to the turmoil overspreading the state in recent years with the Free Staters/Libertarians setting the GOP’s agenda.
Public education would no longer be a priority.
This is how democracies become oligarchies.
Garry Rayno may be reached at garry.rayno@yahoo.com.
Distant Dome by veteran journalist Garry Rayno explores a broader perspective on the State House and state happenings for InDepthNH.org. Over his three-decade career, Rayno covered the NH State House for the New Hampshire Union Leader and Foster’s Daily Democrat. During his career, his coverage spanned the news spectrum, from local planning, school and select boards, to national issues such as electric industry deregulation and Presidential primaries. Rayno lives with his wife Carolyn in New London.