INTRODUCTION

On October 15, 1999, this Court ruled that the phase-in of the statewide education property tax provided for in House Bill 117 (Chpt. 17, Laws of 1999) was unconstitutional. Claremont School District v. Governor, ___ N.H. ___ (October 15, 1999) [hereinafter "Claremont VII'']. In so doing, the Court noted that, "the Act is a comprehensive piece of legislation ....'' Id. at 3. Accordingly, the Court concluded that it was "unable to determine that the phase-in is severable from the education property tax provision as a whole.'' Id. at 8. Because the Court "simply cannot say whether `the legislature would have enacted the [statewide property tax] without the offending provision''', the Court not only invalidated the phase-in, but it went on to strike down the entire property tax feature of HB 117. Id. at 8-9.

On the other hand, without engaging in any of the type of analysis which it had conducted with respect to the relationship of the phase-in and the property tax, the Court proceeded to uphold the balance of HB 117. In other words, without even discussing whether or not the property tax was just as much "integral and essential'' (see id. at 9) to the rest of HB 117 as was the phase-in to the property tax itself, the Court simply stated that it was "unable to conclude on the record before us that the legislature intended that the invalidity of one part of the Act would produce entire invalidity'' (Ibid.).¹

THE MOTION FOR RECONSIDERATION

On October 25, 1999, several members of the New Hampshire House of Representatives filed their Petition to Intervene and Motion for Reconsideration, in which they sought to have the Court reconsider its aforementioned rulings on severability. The Petitioners take the position that the Court erred in not striking down HB 117 in its entirety.

In their supporting Memorandum of Law, the Petitioners undertake an analysis of the relationship between the property tax and the balance of HB 117. They conclude that the Legislature never would have passed an $825 Million spending plan which was essentially unfunded. I agree with the Petitioners' analysis. (Indeed, I took the same position in several earlier amicus memoranda of law which I filed with this Court in opposition to the Plaintiffs' Motion for a Procedural Order.)

The legislative record is replete with evidence of the close relationship between the spending and the funding components of HB 117. In fact, this interrelationship was a centerpiece of the Plaintiffs' attack in their Motion for a Procedural Order upon the Legislature's decision to set the cost of an "adequate'' education at $825 Million. The Plaintiffs specifically argued that the cost was determined arbitrarily on the basis of the types and levels of funding upon which a legislative consensus was politically achievable.

Although it is true that the Legislature often separates spending bills from revenue bills, it is obvious that no such separation existed with respect to the Legislature's efforts over the last two years to resolve the so-called education finance crisis. The very fact that the Legislature was operating under a Court-imposed deadline (1) to define an "adequate'' education, (2) to determine its cost, and (3) to provide a source of revenue to fund it, makes it eminently clear that the Legislature could hardly have intended to pass a bill which left a major part of this Court's mandate unresolved. In other words, it defies common sense to suggest that the Legislature - on April 29, 1999, several weeks after its deadline had already passed - would have passed HB 117 without the property tax to support the bulk of its $825 Million spending plan.²

The Petitioners also challenge this Court's stated reasons in Claremont VII for having ruled that the property tax was severable from the rest of HB 117. The Court gave two reasons for its holding:

1. An isolated verbal exchange between two Representatives on the floor of the House on April 29, 1999, the day upon which HB 117 passed both houses of the Legislature, in which Representative Bradley states that he has been told my "legal scholars'' that "if the Court strikes down one provision [of a law], the remainder - remaining provisions will stand.'' Id. at 9.

2. The Court's understanding that, "both parties agree that if the property tax portion of the Act, including the phase-in, is struck down as unconstitutional, the remaining provisions of the Act are severable ....'' Ibid.

The Petitioners address only the Court's second reason for its holding, i.e., the supposed agreement by the State that the property tax is severable from the rest of HB 117. In their Memorandum of Law, the Petitioners argue that the Attorney General has no authority to bind the Legislature with respect to their legislative activities. According to the Petitioners, this includes an inability to stipulate as to legislative intent on issues such as severability.

I support the Petitioners in the foregoing proposition. For example, if HB 117 had contained a specific section which declared that all of its provisions were integrated and that the invalidity of one would cause the invalidity of all others, no "agreement'' by the Attorney General could authorize this Court to sever one portion of the law and leave the rest standing. Although this Court has the right and power to interpret legislative intent and although the Attorney General has the right and power to advocate for any particular interpretation, only the Legislature can actually create legislative intent.

THE PHANTOM AGREEMENT

Unfortunately, the Petitioners take the Court's opinion in Claremont VII at face value and assume the existence of the aforementioned "agreement''. I do not believe that any such agreement exists. There is certainly no such agreement in the pleadings or memoranda of law submitted by the Attorney General in opposition to the Plaintiffs' several motions attacking HB 117. In its written filings, the Attorney General took the position that (1) the phase-in was constitutional, (2) but if the Court ruled to the contrary, the phase-in was severable from the rest of HB 117.

Although the Attorney General did not specifically address the possibility that the phase-in could take down the property tax and yet still leave the rest of HB 117, he did write the following in his Memorandum of Law dated September 30, 1999 (see p. 12, n. 6):

[I]f the Court believes good cause or just reasons do not exist to support the phase-in, the Court should strike that provision and leave the remainder of the law intact. In this respect, the phase-in is unlike the other provisions of the new law challenged facially by the plaintiffs. The property measure used to determine everyone's respective share of the tax and the components of the calculation of adequacy are not severable from the rest of the statute. See Objection to Motion for Procedural Order at 19-20. (Emphasis supplied)

The only other place that such an "agreement'' could have been made was in the oral argument which was given on October 5, 1999. I was in attendance throughout the entire oral argument on Claremont VII. My recollection of the oral argument is that, not only was there no agreement by the State that the remainder of HB 117 was severable from the property tax, but the Attorney General actually took the opposite position. It is my recollection that Assistant Attorney General Martin Honigberg, who argued for the State, told the Court that any suggestion that the property tax was severable from HB 117 was completely unsupportable. Upon information and belief, a transcript of the tape of the oral argument would verify my recollection. ³

To the extent that this Court relied upon its misinterpretation of the Attorney General's position, Claremont VII cannot stand. The fact that the Court did rely upon it is apparent from the decision itself. In its very brief discussion of the severability of the property tax, the Court recites its erroneous understanding of the State's position in two separate places. Consequently, whether one accepts the argument of the Petitioners that any supposed agreement by the Attorney General on severability has no legal effect, or whether one relies upon the fact that no such agreement even exists, that part of this Court's opinion in Claremont VII which is based upon the supposed agreement rests upon a bed of quicksand.

THE FLOOR DEBATE

The other basis for the Court's decision, the brief exchange between representatives LaPorte and Bradley, is equally unstable. If this discussion is in any way material to the issue of severability, it should be equally as applicable to the question of whether or not the phase-in was severable from the property tax as it is to the question of whether or not the property tax is severable from the rest of HB 117. To the extent that this exchange is to be relied upon as a conclusive manifestation of the legislative intent concerning severability in HB 117, then this Court erred in striking down anything beyond the phase-in. On the other hand, if this exchange is not such a conclusive manifestation of legislative intent, the Court erred in severing the property tax from the rest of HB 117.

The two sections of the Court's opinion on severability are simply inconsistent. Either the phase-in was severable or, if it was not, the entirety of HB 117 should have been struck down. The Court's middle road of declining to sever the phase-in from the property tax, but severing the property tax from the rest of HB 117, cannot be justified on either of the grounds stated by the Court in its opinion. Claremont VII should be reconsidered.

THE MOTION TO INTERVENE

The Petitioners themselves raise the question of their standing to intervene in this case. With all due respect, this Court has been singularly unconcerned with standing issues throughout the Claremont litigation. I question whether the current Plaintiffs, who have not even alleged any personal harm to themselves, had any standing to challenge HB 117's phase-in. If their standing was based upon the fact that they were taxpayers, it is obvious that the group of Representatives who now petition to intervene are also taxpayers and would have similar standing to that of the Plaintiffs.

More importantly, there actually is some authority in New Hampshire law for granting these Petitioners standing in this case. In the case of O 'Neil v. Thomson, 114 N.H. 155 (1974), certain members of the Legislature brought a petition for declaratory judgment against the Governor seeking a declaration that certain Executive Orders were unconstitutional. Several other members of the Legislature intervened in opposition to the action. Id. at 157. The standing issue was raised by the parties. The Court, however, held that, "The plaintiffs in their several capacities have sufficient right and interest in the `performance by public officers of their public duties' and in `the preservation of an orderly and lawful government' to entitle them to maintain these proceedings.'' Id. at 158-9.

The members of the House of Representatives who have filed the current Petition to Intervene have no less an interest than did the petitioners in the O'Neil case. Not only does the Court's holding in Claremont VII interpret a statute in whose creation these Petitioners were involved, but the Court's decision to leave its shell standing after its innards have been removed significantly affects the manner in which these Petitioners may perform their legislative obligations in the future. Accordingly, the Petitioners should be permitted to intervene for the limited purpose of filing and arguing their Motion to Reconsider.

Respectfully submitted,

Dated: October 28, 1999 _____________________________

Eugene M. Van Loan III,

as amicus curiae

CERTIFICATION OF SERVICE

I, Eugene M. Van Loan, III, Esquire do hereby certify that on this date I forwarded a copy of the aforementioned Memorandum to Philip T. McLaughlin, Anne Edwards & Martin Honigberg, Office of the New Hampshire Attorney General, counsel to the Defendants, Andru H. Volinsky, Esquire, counsel for the Plaintiffs and Edward C. Mosca, Esquire, counsel for the Petitioners.

Eugene M. Van Loan, III

G:\DATA\EVL\TAPE2\COVER6.WPD