From ‘A Book, an Idea and a Goat,’ Andru Volinsky’s weekly newsletter on Substack is primarily devoted to writing about the national movement for fair school funding and other means of effecting social change. Here’s the link:  https://substack.com/@andruvolinsky?utm_source=profile-page

By ANDRU VOLINSKY
ConVal Supreme Court Argument

The lawyers made their arguments in the ConVal case to a depleted Supreme Court on December 10th. Chief Justice Gordon MacDonald recused himself from the ConVal case (but not from our Rand case) because he was the Attorney General during the first year or so of ConVal. Justice Hantz Marconi is suspended while she fights criminal charges stemming from her speaking to Governor Sununu about an investigation of her husband. In an oddly timed order six days after the argument, however, Senior Superior Court Judges Gillian Abramson and Tina Nadeau were designated to fill the two empty chairs.

Anthony Galdieri, NH’s solicitor general, represented the state. Michael Tierney of Manchester represented the ConVal school district plaintiffs. As the losing party, or appellant, Galdieri argued first.

The thrust of Galdieri’s argument was that Judge Ruoff overstepped in finding for the school districts and by concluding the state spends too little to fund an adequate education. Judge Ruoff erred by “operationalizing” adequacy. By this, Galdieri meant the judge declared the state’s assigned cost for adequacy of $4100 was woefully deficient in a system that spends more than $24,000 per pupil. According to Ruoff, the lowest cost the state could possibly get away with was $7356.01. This includes cost factors that Galdieri challenged, as, for example, heating schools and supplying buses.

Of course, what Galdieri was really advocating was that the state’s assigned cost of adequacy should be insulated from court review. This is what the state wants, a “get out of jail free” card for any number the legislature and governor pick out of the air to pay for a state-funded constitutionally adequate public education. Galdieri did not mention that omitted costs don’t go away. They’re shifted to local property taxpayers.

Courts commonly “operationalize” constitutional rights to ensure they are protected. A court, for example, operationalizes the constitutional prohibition against involuntary confessions by throwing out confessions obtained by beating people accused of crimes. Courts operationalize the First Amendment by enjoining state conduct that criminalizes symbolic speech. That’s why you can wear a flag patch on your jeans—or change the color of a US flag to suit your political mood.

The right to a state-funded constitutionally adequate public education was made just as concrete by the NH Supreme Court in Claremont I (1993) when it found the right was subject to protection by courts. That court rejected Judge Manias’ conclusion that the NH Constitution’s Education Clause was merely “hortatory” or aspirational. Galdieri, while eschewing a claim that he is trying to reverse the Claremont rulings, was trying to do just that with his argument.

Tierney caught flak from the justices for his decision to challenge only the base cost of adequacy ($4100) and to avoid challenging the adequacy enhancements for children who live in poverty ($2300), are learning English ($800) or qualify for special ed ($2100). These enhancements are called “differentiated aid.” As lawyers, we all make judgment calls. This call was all Tierney’s. We decided to challenge both base adequacy and differentiated aid in the Rand case.

The justices also challenged Tierney on two issues that deserve a fuller response than Tierney was able to give during his 20 minute argument because these issues will also come up in the Rand case.

Justice Donovan asked Tierney why the state shouldn’t get credit for the federal dollars that flow through the state to school districts.

Part of the answer is that federal money isn’t that much. In school year, 2022-23, federal money amounted to 9 percent of public education spending in the state of NH. The total spent was $3.8 billion dollars from all sources or $24,675 per student. The federal dollars amounted to $331 million or $2,149 per student. Of course, much of the federal money is program specific and can’t be used to fund general education or adequacy. Title I poverty programs and Special Education take up large chunks of this money.

The other part of the answer should have been to explain that the state, by statute, didn’t include federal money as part of adequacy. RSA 198:40-a provides that adequacy is base aid plus differentiated aid. RSA 198:39 and 76:3 make clear the cost is paid from the Education Trust Fund and SWEPT, neither of which include federal money.

As members of the NH Supreme Court the justices are bound to review what the legislature has done, not reconfigure statutes. The legislature could have put federal aid in the adequacy cost statute, or had it funnel through the Education Trust Fund, but then it would have been on the hook for the amount of this aid when the feds invariably cut federal spending (or disband the Department of Education). In this case, if the Supreme Court acts properly following judicial norms, NH taking credit for federal school money to pay for adequacy should be off the table.

While Justice Donovan’s question was understandable, Justice Melissa Countway had a different tack that was much more of a stretch and also raised questions about judicial norms. She challenged Tierney about whether his superintendent witnesses were qualified to offer expert opinion testimony. Judge Ruoff relied heavily on the testimony of ConVal Superintendent Kim Rizzo Saunders. Take out Rizzo Saunders and there goes much of the basis for Ruoff’s decision.

Tierney was not prepared for Countway’s challenge to his experts. Why should he be? The standard for admitting expert testimony, after all, is whether the proffered testimony would be helpful to the trier of fact. Judge David Ruoff, who tried the case without a jury, determined the testimony from superintendents was helpful to him and he determined how much weight to accord to the evidence. It really isn’t up to the justices to second guess Ruoff. This is even more true in a case where the state made no effort to defend the state’s $4100 cost figure.

Countway started her challenge by asking Tierney if Saunders’ expert opinions were “peer reviewed.” Tierney waffled, claiming Saunders had presented her expert opinions to the legislature on many occasions. That’s not what “peer review” means. Peer review applies to academic experts who qualify to offer their opinions at trial by having presented those opinions previously in academic journals. In this way, the opinions are formally critiqued by colleagues who are peers in the expert’s field of expertise. When Countway called Tierney on this, he abandoned Rizzo Saunders and shifted to another expert, Bruce Baker, who is a typical, peer-reviewed academic expert. The shift was good for Baker, but left Ruoff exposed to the extent he relied on Rizzo Saunders. The shift could mean another remand that causes more delay.

The shift away from Rizzo Saunders was unnecessary. Tierney could have cited the score of cases that point out that Justice Countway had seized on only one method of qualifying an expert to provide opinion testimony—and Countway had chosen the least appropriate method for the ConVal superintendent. Experts may also be qualified to offer their opinions based on their training and experience without publishing articles in academic journals. Superintendent Rizzo Saunders offered testimony about educational costs and building real-world budgets. Her graduate study and years of experience building school budgets were much more appropriate grounds to qualify her as an expert than whether she wrote academic journal articles.

Of course, Tierney could also have cited Joe Pesce as another “precedent” for qualifying an expert based on her experience. Vinnie Gambini, played by Pesce in the movie “My Cousin Vinnie,” qualified his girlfriend, Mona Lisa Vito (Marisa Tomei) to offer her opinions in the field of general automotive knowledge based on her experience growing up in her dad’s car repair shop. Mona Lisa never authored a scholarly article. She was never peer reviewed.

Here’s the clip from the movie about how to qualify an expert based on her experience. It’s worth two and a half minutes of your time.
Enjoy!
https://www.youtube-nocookie.com/embed/3nGQLQF1b6I?rel=0&autoplay=0&showinfo=0&enablejsapi=0

Permit a proud father a moment. Our daughter Mollie, who has served as a guest writer on this Substack, just published her first book.

The Collective Perspective: A Workbook for Healing Trauma through the Discovery of Your Inner Selves

by Mollie Volinsky, LCSW

Unlock the Power of Your Inner Selves

Written by Mollie Volinsky, a licensed clinical social worker and trauma specialist, this workbook introduces the concept of the “Inner Collective”—the many Members of yourself that influence your thoughts, emotions, and actions.

? Inside this transformative workbook, you’ll discover:

• How to identify and connect with your Inner Collective.
• Tools to release shame and self-doubt through compassion and curiosity.
• Guided exercises and visualization techniques to heal trauma.
• Journal prompts to help you build self-awareness and personal growth.

The Collective Perspective offers the tools to reduce shame, heal trauma, and live with authenticity and confidence.

Available through Amazon. Order here.