By ANDRU VOLINSKY
It’s about trust in the judiciary.
Should you trust justices who worked for years to overturn the constitutional principles established in NH’s School Funding Cases to now sit “impartially” in judgment on those same principles?
Should you trust a judicial disqualification procedure that relies on the justice whose impartiality is reasonably questioned to determine if he can be impartial?
What are the implications for the NH Supreme Court if it is viewed as operating with a political bias?
These are the questions we put to the NH Supreme Court in our March 16th pleadings.
Background
The appeal of the Rand case started in earnest on February 24th. Remember that date. I’ll explain below. We filed motions to disqualify Justices Gordon MacDonald, Dan Will, Patrick Donovan, and Bryan Gould from the case and challenged the disqualification process itself.
In NH, when a party loses a case at trial, appeal is to the NH Supreme Court. The NH Supreme Court has five justices who are nominated by the governor and confirmed by the NH Executive Council.
Governors Sununu and Ayotte have only appointed Republicans to the NH Supreme Court. This is break from the decades-old tradition of appointing justices from both parties. Governor John Lynch (D), for example, appointed Supreme Court Justice Jim Bassett (R) in line with this practice.
The School Funding Cases
The Rand case is the fourth modern era court challenge to how the state funds public education in NH. There were three unsuccessful challenges before the Claremont cases. None of these prior cases made it to a final order on the merits as the Claremont case did so let’s start with Claremont.
Claremont
Claremont School District v. Governor (“Claremont” for short) is the most important school funding case in NH. It is also an important case nationally. I led the legal team that represented a group of five property poor school districts, five taxpaying parents and five students. Initially, Arpiar Saunders and John Garvey were co-leaders. Tom Connair, the school board chair in Claremont was the lead organizer.
Justice Patrick Donovan, as an assistant attorney general, represented the state for years against us, assisting Leslie Ludke. Donovan opposed us at trial, through the Claremont II appeal and in a subsequent Claremont appeal.
In two trips to the NH Supreme Court and one six week trial, we established three overarching school funding legal principles:
· The duty to fund a basic quality education (called a constitutionally adequate education or simply “an adequate education”) lies with the state, not with local school districts;
· Taxes used to fund the state’s duty to provide an adequate education are considered state taxes; and
· All taxes in NH must be reasonable and proportional. This means that to the extent the state funds its duty to provide an adequate education with property taxes, those property taxes must be imposed at the same rate across the state.
These principles were fully articulated by the NH Supreme Court by December of 1997. Depending on whether you count related advisory opinions or not, there were six or eight more trips to the Supreme Court to enforce or clarify the meaning of these three bedrock principles established in Claremont.
Londonderry
In the mid-2000s, a group of middle wealth school districts sued the state claiming they were being left out of state funding because the state had yet to carefully define the parameters of a constitutionally adequate education and to plainly cost them out. These are the Londonderry line of cases. The key legal conclusion was articulated by Justice Gary Hicks in the second Londonderry case.
Any definition of constitutional adequacy crafted by the political branches must be sufficiently clear to permit common understanding and allow for an objective determination of costs. Whatever the State identifies as comprising constitutional adequacy it must pay for. None of that financial obligation can be shifted to local school districts, regardless of their relative wealth or need.
Our legal team filed an amicus or “friend of the court” brief in favor of the school districts who brought suit and aligned with the eventual outcome. Justice Patrick Donovan, as an attorney in private practice, chose to represent then Speaker Doug Scamman and Senate President Ted Gatsas submitting an amicus brief that opposed the school districts who brought the case and urging a reversal of the Claremont principles.
ConVal
The ConVal case was finally decided by the Court on July 1, 2025. There was an earlier appeal that resulted in a remand for trial. The case was originally filed in 2019. Chief Justice MacDonald disqualified or “recused” himself from sitting on the case as a justice of the Supreme Court because he was counsel for the state as Attorney General during the first two years of the ConVal litigation. MacDonald signed the state’s brief in the first ConVal appeal.
The key issue in ConVal was whether the state paid a fair estimate of the costs of an adequate education. The ConVal plaintiffs argued the state should pay $10,000 per child. Trial Judge David Ruoff found the cost for the average student to be at least $7356.01 per child, an increase of half a billion dollars statewide. The Court affirmed, or agreed, with Judge Ruoff’s estimate.
Rounding out the state’s legal team during the first half of the ConVal were Associate Justice Dan Will and assistant attorneys general Anthony Galdieri and Sam Garland. Dan Will argued for the state in the first ConVal appeal as solicitor general. Anthony Galdieri is now the state’s solicitor general.
Rand
Rand was filed in 2021 to allow taxpayers to directly challenge the downshifting of funding burdens when the state fails to meet its duty to pay for an adequate education. The Rand and ConVal cases overlap.
In Rand, as was argued in ConVal, we asserted that the state funds too little of the average cost of an adequate education. We also argued that the extra increments the state provides to fund the costs of educating children who live in poverty, are learning English or who qualify for special ed are too little. These extra costs are a part of adequacy for the children who have these special needs. Trial Judge Ruoff agreed with us after a two week trial and found, as he did in ConVal, that the average cost was deficient and the extra costs should double. This amounts to a finding that a second half billion dollars in state funding is necessary to meet constitutional parameters.
A horde of assistant attorneys general and private counsel retained at state expense defended the state in the Rand case. Chief among them were Anthony Galdieri and Sam Garland, the same lawyers who defended the ConVal case with Associate Justice Dan Will and Chief Justice Gordon MacDonald.
Claremont in the Crosshairs
At no time during the seven years of ConVal and Rand litigation did the state of NH argue for the reversal of the three Claremont principles. Their defense was the state was doing a good enough job of funding education. This is a big deal because lawyers have a duty to raise legal issues first to the trial judge before raising the issues on appeal. It’s called “preserving issues for appeal.”
The state didn’t preserve a challenge to the Claremont principles in the Rand case. Worse, when Dan Will and Anthony Galdieri were asked if they were directly challenging the Claremont principles in the ConVal appeals, they said they were not doing so.
That all changed on February 24, 2026 when the state filed its Notice of Appeal. Issues number one and two in the Notice directly ask the Court to reverse Claremont and “its progeny.” The ConVal decision issued last summer is a “progeny” of Claremont.
What’s changed?
Bryan Gould was confirmed as an associate justice of the NH Supreme Court on September 17, 2025. Daniel Will was confirmed as an associate justice on February 11, 2026, thirteen days before the state filed its Notice of Appeal. The state could have filed its Notice of Appeal earlier, but that would have interfered with Will’s confirmation process.
Gould was Governor Ayotte’s lawyer for political purposes. Associate Justice Gould was also vice chair of the NH Republican Party at a time when the party’s formally adopted platform included a plank seeking an end to Claremont.
Not to put too fine a point on it, Republicans, according to the NH Journal, dubbed Gould “torpedo man” because he was aimed at reversing the Claremont cases. Never a person to mince words, Executive Councilor David Wheeler is quoted in the same article as having a litmus test for Supreme Court nominees. Wheeler’s test is that nominees would reverse Claremont. Somehow Wheeler knew it was okay to vote to confirm Gould.
Here’s the image you should have of the Rand appellate argument if the disqualification motions are denied.
Four lawyers who represented the state in the ConVal case will be in court. Two will sit at counsel table and argue for the state. Two, Justices Will and MacDonald, will sit on the bench looking down at the courtroom. Next to them, also looking down, will be the state’s lawyer who opposed Claremont, Justice Patrick Donovan. At the end of the bench will be torpedo man, Justice Bryan Gould.
Justice MacDonald in our appeal will be directly asked to reverse ConVal, a Claremont “progeny,” even though he was disqualified from sitting on the ConVal case when it was decided last summer.
Parallels to the US Supreme Court
The NH Supreme Court sits at a dangerous crossroad. It’s predicament is much like that of the US Supreme Court where challenges compelled by faith caused the US Supreme Court to reverse its 50 year-old decision protecting abortion rights. The reversal of Roe v. Wade caused faith in the Supreme Court to plummet. Pew Research shows a 40 point decline over the last five years in the percentage of Americans who view the US Supreme Court favorably. A lot of the damage to the US Supreme Court’s reputation stems from failed recusal policies and practices, not only related to Roe but to all the political decisions of the day.
The Claremont decision is a lot stronger decision than Roe. It is based on an express provision of the NH Constitution. No one can characterize all the judges in the Claremont, Londonderry and ConVal cases who voted to protect and advance the Claremont principles as being “activist judges.”
Here’s the ultimate question:
Will the NH Supreme Court learn from the Roberts Court’s sad history?
Andru Volinsky was lead counsel in the Claremont cases. He’s also a former executive councilor . Volinsky is the author of The Last Bake Sale, a book about the fair school funding fight in New Hampshire and across the nation.
Volinsky’s Substack, A Book, An Idea and a Goat can be read here: https://andruvolinsky.substack.com/p/a-book-an-idea-and-a-goat