THE STATE OF NEW HAMPSHIRE
SUPREME COURT
N O T I C E
No. 98-322, Requests of the Senate for an Opinion of the Justices (School Financing)
The following requests of the senate for an opinion of the justices were adopted on May 21, 1998, and filed with the supreme court on May 22, 1998:
SENATE RESOLUTION 3
Whereas, there is presently pending before the Senate, Senate Bill 508-FN, as amended by document number 1998-1787s, an act relative to foundation aid to schools and the Augenblick formula; and
Whereas, the bill is designed to respond to the recent Claremont decision (Claremont School District v. Governor, 142 N.H. ___, 703 A.2d. 1353 (1997), hereinafter "Claremont II"); and
Whereas, the bill contains provisions regarding the calculation of a school district’s equalization factor and the amount of foundation aid for school districts, but does not alter the present property tax method for education; and
Whereas, a question has been raised that the adoption of the bill may be in violation of the language of Claremont II, and of Part II, Article 5 of the state constitution; now, therefore, be it
Resolved by the Senate:
That the justices of the supreme court be respectfully requested to give their opinion upon the following important question of law:
Would enactment of SB 508-FN as amended, and its funding allocation formula and method of dedicating such funding fulfill the mandates of Claremont II or violate Part II, Article 5 of the New Hampshire constitution?
SENATE RESOLUTION 4
Whereas, there is presently before the Senate HB 1280-LOCAL, an act clarifying the procedures for background criminal checks for school employees and volunteers; and
Whereas, there is also presently pending before the Senate, an amendment to HB 1280-LOCAL (document number 1998-1849s), which would amend HB 1280-LOCAL to: an act implementing the Advancing Better Classrooms program to provide a constitutionally adequate public education to all the children of New Hampshire; and
Whereas, the bill as amended is designed to respond to the recent Claremont decision (Claremont School District v. Governor, 142 N.H. ___, 703 A.2d. 1353 (1997), hereinafter "Claremont II"); and
Whereas, the bill as amended contains provisions regarding the calculation of a state education tax, the calculation of a per pupil cost of an adequate education, and special abatements for certain communities; and
Whereas, a question has been raised that the adoption of the bill as amended, including the abatement provisions, may be in violation of the language of Claremont II, and of Part I, Article 28-a and Part II, Article 5 of the state constitution; and
Whereas, the majority opinion of the honorable court in the Claremont II decision called into question the constitutional validity of the entire local property tax system for the periods after "the 1998 tax year" thereby creating an imminent risk of fiscal crisis for local school budgets throughout the state, which places a great premium on ensuring that any legislative solution adopted be consistent with the Claremont II decision prior to its implementation; and
Whereas, HB 1280-LOCAL as amended reflects the efforts of the executive and legislative branches of our state government to address public education financing issues in response to the decision of the honorable court in Claremont II and therefore raises issues of constitutional dimension; and
Whereas, HB 1280-LOCAL as amended would undertake substantial reevaluation of the traditional means of financing public education within New Hampshire, with great impacts on the traditional relationships among school districts throughout the state, and between the state and local governments, all on the assumption that such substantial reevaluation would be consistent with the decision in Claremont II; now, therefore, be it
Resolved by the Senate:
That the justices of the supreme court be respectfully requested to give their opinion upon the following important questions of law:
1. Would enactment of HB 1280-LOCAL as amended, and its funding allocation formula and property tax abatement scheme violate Part II, Article 5 of the state constitution requiring that all taxes be proportional and reasonable?
2. Would enactment of HB 1280-LOCAL as amended, violate the express language of this court in Claremont II, that to the extent that the property tax is used to fund the provision of an adequate education, to be constitutional, the tax must be administered in a manner that is equal in valuation and uniform in rate throughout the state?
3. Would enactment of the multi-variant funding allocation formula using both local income and property wealth factors in section 86 of HB 1280-LOCAL as amended as it amends RSA 198:27-37 violate Part II, Article 5 of the state constitution relative to uniformity and proportionality or the express language of Claremont II?
4. Would enactment of the multi-variant funding allocation formula in section 86 of HB 1280-LOCAL as amended as it amends RSA 198:27-37, if coupled with the property tax abatement scheme in section 15 of HB 1280-LOCAL as amended, and resulting in continued disparity of effective property tax rates to support a constitutionally adequate education violate Part II, Article 5 of the state constitution or the express language of Claremont II?
5. Would enactment of HB 1280-LOCAL as amended, violate Part I, Article 28-a of the state constitution by requiring in section 59 of the bill as amended that every school district prepare and implement a local education improvement and assessment plan by requiring in sections 48 and 54 of the bill as amended that every school district provide approved schools subject to mandatory minimum approval standards set by the state board of education without providing every school district funding sufficient to pay for such mandates?
6. Would the enactment of any other provision of HB 1280-LOCAL as amended: (a) result in a violation of the "proportional and reasonable" requirements of Part II, Article 5 of the New Hampshire constitution; or (b) create an impermissible classification of property in violation of Part II, Article 6 of the New Hampshire constitution; or (c) violate any other provision of the New Hampshire constitution?
That the senate clerk transmit copies of this resolution and HB 1280-LOCAL as amended (1998-1849s) to the justices of the supreme court.
Typewritten memoranda on the questions presented by the requests may be furnished by any legislator, attorney, organization, interested party, or member of the public on or before June 2, 1998. An original and fifteen copies of any memorandum must be filed with the clerk's office. The memorandum shall indicate whether the party filing it desires oral argument. Oral argument on the questions presented by the requests shall take place at a special session of the court at 9:00 a.m. on June 5, 1998. The court shall issue an order on June 3, 1998, regarding who shall present oral argument and the times allotted therefor.