By GARRY RAYNO, InDepthNH.org

CONCORD — The plaintiffs in the Rand vs. State of New Hampshire education funding suit, objected to the Coalition Communities’ motion to stay the decision until after the state Supreme Court decides its appeal.

The plaintiffs also seek the recusal of two of the five Supreme Court justices for the appeal, including Chief Justice Gordon MacDonald and Associate Justice Patrick Donovan.

The Coalition Communities is composed of property wealthy towns and small unincorporated places with few or no children who either retain excess Statewide Education Property Tax revenue or have a negative tax rate so they do not pay the statewide tax.

The communities filed an appeal of Judge David Ruoff’s decision calling the administration of the statewide property tax unconstitutional because it results in differing tax rates for the communities March 5 and the request to put off implementing the court’s decision March 6.

Ruoff had earlier rejected their motions to stay his decision and reconsider his ruling.
In their motion to stay, the Coalition Communities claim the ruling would be disruptive to the towns and cities impacted, put millions of dollars at issue and upset the status quo which has been in place for more than a decade.

But the plaintiffs contend the Coalition Communities lost their standing in the case when the decision was released as every municipality in the state would have proportional and reasonable taxation as the constitution requires after the ruling.

The current system allows taxpayers in different communities to pay more than others to cover the state’s obligation to fund an adequate education.

The plaintiffs argue the Supreme Court had already determined that was unconstitutional in the Claremont education funding lawsuit.

They argue the coalition communities should have been preparing for the decision as the trial court noted, but failed to do so knowing what was at stake.

The plaintiffs also claim the communities do not have likelihood of success on the merits on the appeal.

They also argue “there is a fundamental disconnect between the (hypothetical) harm alleged by the Coalition and the relief sought. If this Court granted the Stay Motion and the Coalition ultimately lost on the merits of the case, the Coalition would be forced to pay back the excess SWEPT funds that the municipalities over spent during the 2024–2025 fiscal year.

 A stay would not prevent a potential budget shortfall to pay for the non-educational projects the Coalition communities mentioned as priorities to be paid with SWEPT funds, according to the plaintiffs’ motion.

The plaintiffs also argue the communities are not seeking a real stay, but rather another year of the advantage that results from unconstitutionally non-uniform taxes. 

MacDonald Motion

The motion filed for MacDonald notes he was the Attorney General when the ConVal challenge to the state’s funding of an adequate education was heard and was likely to be involved in choosing the attorneys to present the state’s case and involved in the legal strategy.

Several aspects of the Rand and ConVal cases overlap the plaintiffs’ claim including the adequacy of differentiated aid in the education formula, that have yet to be decided by the Superior Court.

The recusal request also notes that attorney Andru Volinsky was an Executive Councilor when Gov. Chris Sununu nominated MacDonald to be chief justice and was one of three votes against his nomination, which became controversial.

Volinsky was singled out for criticism about the council’s action, the motion notes, including by the Independent Women’s Forum which advocates for diverting public education funds to religious and private schools.

The motion also notes that MacDonald was a member of the board of the extremely conservative Josiah Bartlett Center, which advocates for school voucher programs, which could raise the appearance of bias.

Donovan Motion

The plaintiffs note that Donovan was an assistant attorney general representing the state during the trial and the appeal of the Claremont education funding case, and represented the state in trying to extend the deadlines set by the court in the Claremont II decision.

And in private practice Donovan represented the Speaker of the House and Senate President in an attempt to overturn the Supreme Court’s ruling in the Londonderry versus the State in another education funding lawsuit related to the Claremont decision.

Both the ConVal and Rand cases are closely linked to the original Claremont decisions, the plaintiffs note.

Both the ConVal and Rand cases have been appealed to the Supreme Court and in both cases attorneys have filed requests to stay the decisions while the two cases are appealed and orders are issued.

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

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