2019-0500, Contoocook Valley School District & a. v. State of New Hampshire & a.

Di strict, Pittsfield School District, Newport School District, Merrimack Valley School District, Hopkinton School District, Mascoma Valley Regional School Concord (Natalie J. Laflamme on the brief), for Berlin School District, Derry John E. Tobin, Jr., of Concord, on the brief, and Laflamme Law, PLLC, of

and Mr. Will ora lly), for the defendants. assistant attorney general, and Samuel R.V. Garland, attorney, on the brief, Anthony J. Galdieri, senior assistant attorney general, Lawrence M. Edelman, Gordon J. MacDonald, attorney general (Daniel E. Will, solicitor general,

Elizabeth E. Ewing on the brief, and Mr. Tierney orally), for the plaintiffs. Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael J. Tierney and

CONTOOCOOK VALLEY SC HOOL DISTRICT & a.

No. 2019 - 0500 Cheshire

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by e - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

C ommissioner in their individual capacities, and its denial s of the State’s We affirm the trial court’s dismissal of the Governor and the

dismissal of their claims against the Governor and the C ommissioner. Constitution; and its denial of their request for injunctive relief; and its State’s system of funding education violates Part I I, Article 5 of the State operations and maintenance, and certain services; its failure to find that the sufficiency of the State’s funding of trans portation, teacher benefits, facilities 198:40 - a, II(a) facially unconsti tutional; its determinations regarding the Regional School District, cross - appeal the trial court’s failure to find RSA Winchester School District, Mascenic Regional School District, and Monadnock Valley School District, Myron Steere, III, Richard Cahoon, Richard Dunning, districts, and awarding the plaintiffs attorney’s fees. The plaintiffs, Contoocook an adequate education is unconstitutional as applied to the plaintiff school pupil base adequacy aid set forth in RSA 198:40 - a, II(a) (Supp. p. 2 20 20) to fund plaintiffs’ motion for summary judgment on grounds that the amou nt of per dismiss and denying its cross - motion for summary judgment, granting the decision of the Superior Court (Ruoff, J.) denying, in part, the State’s motion to and the Commissioner of DOE, Frank Edelblut (collectively, the State), appeal a Hampshire Department of Education (DOE), Governo r Christopher T. Sununu, DONOVAN, J. The defendants, the State of New Hampshire, the New

McGuire, and Representative Andrew Renzullo, as amici curiae. Senator Robert Giuda, Representative Gregory Hill, Representative Carol Gregory M. Sorg, of Franconia, by brief, for Senator Harold French,

Bissonnette and Henry R. Klementowicz on the brief), as amicus curiae. American Civil Liberties Union of New Ha mpshire, of Concord (Gilles R.

School Boards Association, as amici curiae. District, Fall Mountain Regional School District, and the New Hampshire District, Nelson School District, Westmoreland School District, Nashua School Harrisville School District, Marlborough School Dist rict, Marlow School Regional School District, Keene School District, Chesterfield School District, District, Bath School District, Manchester School District, Governor Wentworth District, Concord School Dist rict, Warren School District, Piermont School School District, White Mountains Regional School District, Claremont School Regional School District, Haverhill School District, Winnisquam Regional p. 3 3

education. Id. at 162. the legislature had failed to determine the cost of a constitutionally adequate issues, including its cost, we stayed the portion of the trial court’s decision that the definition of a constitutionally adequate education was essential to all other educational program are.” Londonderry Sch. Dist., 154 N.H. at 161. Because “that the citizens of this st ate can know what the parameters of that substantive content of a constitutionally adequate education in such a manner education in RSA 19 p. 3 3 - E:2 did not fulfill the State’s duty to define the determined that, standing alone, the legislature’s definition of an ad equate School Dist. v. Governor (Accountability), 147 N.H. 499, 505 (2002). W e accountability. Londonderry Sch. Dist., 154 N.H. at 154 - 55; see Claremont adequate education, to determine its cost, and to satisfy the requirement of II, Article 83 of the New Hampshire Constitution, to define a constitutionally Constitution and that the State had failed to fulfill its duty, as required by Part that the State’s education funding system violated Part II, Article 5 of the State In Londonderry School District, the State appealed a trial court ruling

in New Hampshire. adequate education, as defined in RSA 19 p. 3 3 - E:2 - a, to the public school children 198:40 - a, II(a) in order for them to deliver the opportunity for a constitutionally substantially more funding than the State currently provides under RSA fulfilling its constitutional duty because local school districts require 193 - E:2 - a (Supp. 2020). Rather, the plaintiffs’ grievance is that the State is not constitutionality o f the definition of an adequate educa tion set forth in RSA 153, 155 - 56 (2006) (quotation omitted). T he plaintiffs do not challenge the delivery through accountability.” Lo ndonderry Sch. Dist. v. State, 154 N.H. education, determine the cost, fund it with constitutional taxes, and ensure its (1993). T o comply with that duty the State must “define an adequate adequate funding.” Claremont School Dist. v. Governor, 13 8 N.H. 183, 184 educable child in the public schools in New Hampshire and to guarantee duty on the State to provide a constitutionally adequate education to every funding jurisprudence, Part I I, Article 83 of the State Constitution “imposes a the underlying law applicable to the issues in this case. Under our education summary judgment without significant discovery. T he State do es not contest whether the trial court erred in resolving the merits of the plaintiffs’ claims on At the outset, we note that the issue before us is a narrow one —

proceedings consistent with this decision. for summary judgment and award ing attorney ’ s fees, and remand for further w e reverse that portion o f the trial court’s order grant ing the plaintiffs’ motion sum mary judgment, and the plaintiffs’ request for injunctive relief. However, motion to dismiss for failure to state a claim, the State’s cross - motion for p. 4 4

as defined in RSA 193 - E:2 - a. The legisl ature determined that cost, based on annual per - pupil cost of providing the opportunity for an adequate education Thereaft er, the legislature enacted RSA 198: p. 4 40 - a, setting forth the

2008 Spreadsheet). (Final Report), which incorporated a breakdown of costs it had considered (the In February 2008, the Joint Committee issued its Final Report and Findings adequat e education . . . for children throughout the state.” Laws 2007, 270:2. studying “the analytical models and formulae for determining the cost of an on Costing an Adequate Education (Joint Committe e) and charged it with T he legislature also established a J oint Legislative Oversight Committee

IV(a) - (c). cannot be amended without the legislature’s approval. See RSA 193 - E:2 - a, RSA 193 - E:2 - a, V(a); however, the enumerated list set forth in paragraph I for public school approval for each area of educ ation identified in paragraph I,” Board of Education and DOE are req uired to “refin[e] the minimum standards delivery of an adequate education,” RSA 193 - E:2 - a, IV(a). The New Hampshire grade levels,” RSA 193 - E:2 - a, II, and “shall constitute the opportunity for the the substanti ve knowledge expected to be possessed by students at the various the communication, analytical and research skills and competencies, as well as Those minimum standards “shall clearly set forth the opportunities to acquire approval for the areas identified in paragraph I.” RSA 193 - E:2 - a, I, IV(a). education shall be defined as” the “minimum standards for public school substantive educational program that deliver the opportunity for an adequate R SA 193 - E:2 - a, I (bolding and capitalization omitted). The “specific criteria and

(j) Computer science and digital literacy. (i) Engineering and technologies. (h) Physical education. (g) Health education . . . . (f) World languages. (e) Arts education. (d) Social Studies. (c) Science. (b) Mathematics. (a) En glish/language arts and reading.

content of an adequate education” as including instruction in: twelfth grade. See RSA 1 93 - E:2 - a, I, II. The statute defines the “substantive deliver the opportunity for an adequate education for kindergarten through enacted RSA 193 - E:2 - a, setting forth the subst antive educational program to Following our decision in Londonderry School District, the legislature p. 5 5

$ 20 million in base adequacy aid to them. Noting that both parties sought the school districts and a court order requiring the State to pay approximately preliminary injunction enjoining the alleged unconstitutional underfunding of Following a hearing, the trial court denied the plaintiffs’ request s for a

violating both Part II, Article 83 and Part II, Article p. 5 5 of the Sta te Constitution. not property - wealthy districts, to increase their property taxes, thereby adequate funding via the SWEPT requires property - poor school districts, but Property Tax (SWEPT). See RSA 76:3 (2 012). The y asserted that the lack of Article 83. In addition, the plaintiffs challenged the Statewide Education in order to fund a constitutionally adequate education in violation of Part II, to cover those costs, the school districts are forced to increase their local taxes because the amount of base adequacy aid in RSA 198:40 - a, II(a) is insufficient and (5) faciliti es operations and maintenance. T he plaintiffs alleged that, services inclu ding nurse services, superintendent services, and food services; teacher and staff benefits; (4) the failure to include several State - required and 2008 Spreadsheet: (1) transportation; (2) teacher - student ratios; (3) areas of the cost determinations set forth in the Joint Committee’s Final R eport Article 83 of the State Constitution. T he plaintiffs specifically challen ged five aid fails to sufficiently fund an adequate education as guaranteed by Part II, RSA 198:40 - a, II(a). The plaintiffs alleged that the amount of base adequacy and injunctive relief asserting facial and as - applied cons titutional ch allenges to In March 2019, the plaintiffs brought a petition for declaratory judgment

plaintiffs, that amount was $3,636.06 per pupil for the 2019 fiscal year. this case is the cost amount set forth in RSA 198:40 - a, II(a). According to the in the federal Consumer Price Index. RSA 198:40 - d (Supp. 20 20). At issue in The rates set forth in the statute are adjusted each biennium to reflect changes paragraph II sh all be the cost of an adequate education.” RSA 198:40 - a, III. RSA 198:40 - a, II. The statute provides that “[t] he sum total calculated under

the state assessment . . . . with a score below the proficient level on the reading component of (e) An additional $697.77 for each third grade pupil in the ADMA receiving special education services; plus (d) An additional $1,91 p. 5 5.8 6 for each pupil in the ADMA who is English language learner; plus (c) An additional $697. 77 for each pupil in the ADMA who is an eligible for a free or reduced price meal; plus (b) An additional $1,780. 63 for each pupil in the ADMA who is aid as follows: (a) A cost of $3, 561.27 per pupil in the ADMA, plus differentiated

RSA 198:38, I(a) (Supp. 2020), to be: average daily membership in attendance (ADMA), see RSA 189:1 - d, III (2009); p. 6 6

claim are constitutionally requir ed actually fall within the statutory definition adopted by the legislature”; and (2) “implying that the services the plaintiffs history,” rather than focusing on “the constitutionality of the final figure include: (1) conducting “an exacting audit of RSA 198:40 - a’s legislative motion to dismiss and /or motion for summary judgment. These errors manifest errors of law” which require us to reverse its denial of the State’s On appeal, the State asserts that the trial court “committed several

modifying its earlier order in part. This appeal followed. Subsequently, t he court denied the parties’ motions for reconsideration, plaintiffs’ request for attorney’s fees under the “substantial benefit theory.” grounds to seek the amount that they request.” T he trial court granted the e ducation t rust f und because it found that the plaintiffs did “not have valid form of ordering the Governor and the C ommissioner to draw funds from the adjudication. T he court likewise denied the ir request for injunctive relief in the whether the SWEPT had an unconstitutional effect was not ripe for denied the plaintiffs’ request for injunctive relief because it determined that insufficient to provide transportation to high school students.” The court teacher - student ratios and “includ es transportation costs intentionally II(a) is unco nstitutional as applied to them, because it utilizes insufficient plaintiffs’ motion for summary judgment on the grounds that RSA 198:40 - a, Committee’s Final Report and 2008 Spreadsheet, t he court granted the Relying on the costing determinations and rationale reflected in the Joint

Second Amended Petition even without the DOE data.” that it could “wholly adjudicate the constitutional questions raised in the costs necessarily incurred to d eliver an adequate education, and determining upon by the plaintiffs did not constitute “reliable, competent evidence” of the summary judgment, rejecting th e State’s argument that the DOE data relied constit utional violation. T he court also denied the State’s cross - motion for determining that the plaintiffs ’ second amended petition sufficiently alleged a the parties’ motions. The court partially denied the State’s motion to dismiss, the merits hearing, and o n June 5 it issued an omnibus order addressing all of After receiving the parties’ responsive pleadings, t he trial court canceled

judgment, and the State cross - moved for summary judgment. a claim, the plaintiffs filed a second amended petition and moved for summary Thereafter, t he State moved to dismiss the plaintiffs’ petition for failure to state factual and discovery issues, if any, [as] very discre [te] and well defined.” the State that significant discovery might be required, characterizing “the the mer its for the first w eek of June. In doing so, the trial court disagreed with dispositive motions and responsive pleadings, and scheduled a final hearing on expedited treatment of the case, the trial court set expedited deadline s for p. 7 7

need not, however, assume the truth of statements in the pleadings that are all reasonable inferences in the light most favorable to the plaintiff. Id. We 1 p. 7 72 N.H. 721, 725 (2019). We assume the pleadings to be true and construe construction tha t would permit recovery. Weare Bible Baptist Church v. Fuller, whether the allegations in the pleadings are reasonably susceptible of a In reviewing a trial court’s ruling on a motion to dismiss, we consider

assertion” relied upon by the trial court. allegations, “even whe n assumed true, do not ‘buttress’ the conclusory pupil cost as a whole, and not the underlying methodology,” the plaintiffs’ contends that, “[b]ecause the proper analytical framework focuses on the per pla intiffs believe fall within the definition of an adequate education.” T he State series of statements that the State underfunds various services that the Spreadsheet are not sufficient to state a claim because they “are merely a the petition that are based up on the Joint Committee’s Final Report and 2008 conclusion as to the ultimate issue” and that the m ore spec ific allegations in adequate education.” The State argues that that allegation is simply “a legal sufficient funds for each and every school district to provide a constitutionally solely on the allegation in the petition that the State “does not currently provide an actual deprivation of a fundamental right, the trial court erroneously relied dismiss. According to the State, in concluding that the plaintiffs had pleaded unadorned legal conclusions,” the trial court erred by denying its motion to T he State asserts that because “the plaintiffs’ pleadings contained only

constitutionality bears the burden of proof. Id. favor o f its constitutionality. Id. The party challenging a statute’s exist as to the constitutionality of a statute, those doubts must be resolved in substantial conflict exists between it and the constitution. Id. W hen doubts requires that we will hold a statute to be constitutional unless a clear and declare it invalid except upon inescapable grounds. Id. This presumption In reviewing a legislative act, we presume it to be constitutional and will not novo. Sumner v. New Hampshire Secretary of State, 168 N.H. 66 p. 7 7, 669 (2016). The constitutionality of a statute is a question of law, whi ch we review de

Constitution. (6) declining to reach their claims under Part II, Article 5 of the State C ommissioner individually; (5) denying their reque st for injunctive relief; and food services; (4) dismissing their claims aga inst the Governor a nd the failing to find that the State provides no funding for nurse, su perintendent, and for all students, teacher salaries, and facili ties operations and maintenance; (3) f ailing to find that the State i s und erfunding the actual costs of transportation trial court erred by: (1) rejecting their facial challenge to RSA 19 p. 8 8:40 - a, II(a); (2) of an adequate education.” In their cross - appeal, the plaintiffs argue that the 8

genuine issue of material fact exists, we determine whether the moving party is most favorable to each party in its capacity as the non - moving party and, if no cross - motions for summary judgment, we consider the evidence in the light motions for summary judgment. In considering the trial court’s rulings on T he parties contend that the trial court erred in ruling on their respective

to dismiss the amended petition for failure to state a claim. citations omitted.) Thus, we affirm the trial court’s denial of the State’s motion State pursuant to” RSA 19 p. 8 8:40 - a, II(a). (Quotations, brackets, and record provided. . . without more base adequacy fundi ng than [is] provided by the Constitution, and that a constitutionally adequate education cannot be adequate education as required by Part II, Article 83, of the New Hampshire throughout that. . . the State has failed to meet its obligation to fully fund an education. As the trial court observed, the plaintiffs “have consistently pled State is failing to fulfill its constitutional obligation to fully fund an adequate favorable to the plain tiffs, at its core the amended petition alleges that the pleadings to be true and construing all reasonable inferences in the light m ost Assuming, as we must, the allegations set forth in the plaintiffs’

on only $3,636.06 per pupil.” pupil”; and “[n]o school district can provide the requirements of RSA 193 - E:2 - a can provide a constitutionally adequate education on only $3,636.06 per order to provide a constitutionally adequate education”; “[n]o school district $3,636.06 per pupil and need to raise additional funds via local taxation in adequate education”; the p laintiffs “receive base adequacy aid at a rate of sufficient funds for each and every school district to provide a const itutionally each school district” (quotation omitted); the State “does not currently provide “imposes solely upon the State the obligation to provide s ufficient funds for was $1 p. 8 8,901.32 for the 2017 - 2018 school year”; the State Constitution state average [expenditure for] elementary and secondary education per pupil recovery.” Fuller, 172 N.H. at 725. T he amended petition alleges that: “[t]he allegations “are reasonably susceptible of a construction that would permit that are based up on the Final Report, we conclude that the remaining motion to dismiss, even setting aside the allegations in the amended petition RSA 198:40 - a, II(a) is constitutional. However, in the context of the State ’s S preadsheet are irrelevant as to whether the amount of funding set forth in determinations set forth in the Joint Committee’s Final Report and 2008 A s discussed below in Section B, we agree with the State that the costing

permit recovery, we will uphold the denial of a motion to dismiss. Id. alleged by the plaintiff are reasonably susceptible of a construction that would petition against the applicable law. Fuller, 172 N.H. at 725. When the facts (2015). We then engage in a threshold inquiry that tests the facts in the merely conclusions of law. Lamb v. Shaker Reg’l Sch. Dist., 16 p. 8 8 N.H. 47, 4 p. 9 9 9

this act, is based upon the definition of the opportunity for an adequate education for public school students, as established in I. The general court finds that the cost of the opportunity for an

purpose provides: enacting RSA 1 p. 9 98:40 - a. Laws 2008, 173:1. In pertinent part, the statement o f The 2008 session law sets forth the legislature’s statement of purpose in

have said, nor add words that it did not see fit to include. Id. at 750. In construing a statute, we will neither conside r what the legislature might we ascribe the plain and ordinary meaning to the words used. Id. at 74 p. 9 9 - 50. statute considered as a whole. Id. When examining the language of a statute, are the final arbiter of the leg islature’s intent as expressed in the words of the Henniker, 167 N.H. 745, 749 (2015). In matters of statutory interpret ation, we statute is a question of law, which we review de novo. Forster v. Town of the law raises an issue of statutory construction. The interpretation of a W hether RSA 198:40 - a incorporates the Final Report by reference into

the statute. and thus, they assert, the Final Report has been incorporated by reference into funding bill as the justifications for RSA 1 p. 9 98:40 - a,” citing Laws 2008, 173:1, specifically incorporated the justifications of the Joint Committee into the defined in RSA 193 - E:2 - a.” The plaintiffs counter that “[t]he Legislature itself cost set forth in RSA 198:40 - a is sufficient to fund an adequate education, as State argues, the trial court should have determined whether “the per - pupil incorrect analytical framework. U nder the correct analytical framework, the constitutionality of that cost,” the State contends th at the trial court applied an behind the per - pupil cost set forth in [the statute] is not relevant to the prove the deprivation of a fundamental right.” Because “the methodology legislature to justify its costin g decision without first requiring the plaintiffs to history absent ambiguous statutory text,” and thereby “improperly required the the trial court “ignored this Court’s clear directive not to consider legislative of that figure or the rationale underpinning it.” In doing so, the State asserts, the final figure adopted by the legislature without concern for the components 198:40 - a’s legislative history,” rather than focusing “on the constitutionality of S tate - funded adequate education by conducting “an exacting audit of RSA erroneously determined that the plaintiffs proved a deprivation of the right to a motion for summary judgment. According to the State, the trial court T he State argues that the trial court erred in granting the plaintiffs’

Horse Pond Fish & Game Club v. Corm ier, 133 N.H. 648, 653 (1 p. 9 990). 129 - 30. An issue of fact is material if it affects the outcome of the litigation. a matter of law, then we will affirm the grant of summary judgment. Id. at genuine issue of mate rial fact and if the moving party is entitled to judgment as Auburn, 168 N.H. 127, 129 (2015). If our review of that evidence discloses no entitled to judgment as a matter of law. JMJ Properties, LLC v. Town of p. 10 10

income” (quotation s omitted)). incorporate by reference the federal income tax method of determining taxable corporation income t ax return,” such language “imports a legislative intent to amount shown as ‘taxable income’ on its United States small business under the United States Inter nal Revenue Code (1954) as amended, the case of a corporation which elects treatment as a small business corporation (1973) (where a statute provided that “Gross Business Profits” means “in the refe rence (quotation omitted)); Shangri - La, Inc. v. State, 113 N.H. 4 40, 442 173.88(d), packaged and unpackaged,” incorporated federal regulation by fireworks’ means class B special fireworks as defined in 49 CFR section Hampshire statute, which provided, in pertinent part, that “‘Class B special e.g., State v. Fitanides, 139 N.H. 425, 427 - 28 (1995) (noti ng that New The legislature’s intent to incorporate by reference must be clear. See,

Laws 2008, 173:1.

of education that is included in the definition in RSA 193 - E:2 - a. universal cost represents the costs attributable only to the subset to ensure the delivery of the state’s constitutional duty. . . . The of several elements. All such elements must be provided in order IV. The cost of the opportunity for an adequate education consists

dete rminat ions reflected in this act. general court and are an integral basis of the costing These findings and recommendations were submitted to the that the educational needs of all public school students are met. education should be allocated and accounted for in order to ensure cost of an adequate education and how the funds for an adequate detailed findings and recommendations on the composition of the III. The joint legislative oversight committee on costing issued

the establishment of the cost of an adequate education. officials, education policy and finance experts, and the public on obtaining information from professional educators, government and the general court. The legislative process consisted of legislative oversight committee on costing an adequate education and after extensive review, debate and discussion by the jo int basis of their effectiveness in delivering educational opportunity II. The individual components of the cost were selected on the

opportunity for an adequate education. Literature clause of the New Hampshire co nstitution to deliver the and do fulfill the state’s duty under the Encouragement of resources, and elements of cost included in this act are intended to chapter 270. The methodologies for costing, determination of adequate education enacted in the 200 7 Laws of New Hampshire, p. 11 11

(quotation omitted)). enac ting a statute,” such reasons are “irrelevant for constitutional purposes” that “because we never require a legislature to articulate its reasons for in RSA 193 - E:2 - a. See State v. Chrisicos, 158 N.H. 82, 88 (2008) (explaining cover the cost of delivering an adequate education as defined by the legislature Spreadsheet, is irrelevan t to determining whether the amount is sufficient to methodology contained in the Joint Committee’s Final Report and 2008 rationale for reaching th e cost set forth in the statute, including the “unambiguous as to the amount provided.” Thus, the legi slature’s underlying the statute itself”). As the trial court observed, RSA 198:40 - a, II(a) is statutory meaning that is necessary to justify an inquiry beyond the words of statutory language actually ena cted, this would not create the uncertainty of could show that some legislators had an intent that ran counter to the Inc. v. State, 127 N.H. 565, 568 (1986) (explaining that “[e]ven if the plaintiffs langua ge to be ambiguous); see also State Employees’ Ass’n of New Hampshire, (explaining that we will not examine legislative history unless we find statutory on its face. See Anderson v. Estate of Wood, 171 N.H. 524, 528 (2018) We do not consider legislative history to construe a statute which is clear

substantive law. 198:40 - a. Thus, the Final Report constitutes legislative history, no t Joint Committee’s Final Report, including its 2008 Spreadsheet, as part of RSA expressing clear legislative intent to specifically incorporate by reference the that the general language set forth in the 2008 session law falls short of the session law, see Fitanides, 139 N.H. at 428. Accordingly, we determine (quotation s omitted)). Moreover, the Final Report is not expressly identified in needed before a court may properly find adoption or incorporation by reference” necessarily involve reliance on a document’s analysis; both will ordinarily be (explaining that “[m]ere reliance on a document’s conclusions . . . does not Life v. Dept. of Health & Human Serv ’ s, 778 F.3d 43, 55 (1st Cir. 2015) underlying rationale behind those findings and recommendations. See Right to legi slature adopted, nor does it state that the legislature adopted the This language does not identify which findings and recommendations the

determinations ref lected in” the act. Id. were considered and constituted “an integral basis of the costing the cost of an adequate education and how the funds . . . should be allocated” and recommendations” of the joint oversight committee “on the composition of finance experts, and the public.” Laws 2008, 173:1. In addition, the “findings including “professional educators, government officials, education policy and education, the legislature considered information from numerous sources reaching its determination of the c osts of the opportunity for an adequate The statement of purpose in the 2008 session law provides that, in p. 12 12

these services “are part of a constitutionally adequate education.” W e agree education by virtue of RSA 193 - E:2 - a, IV(a).” Thus, according to the plaintiffs, which are incorporated into the definition of a constitutionally adequate among other things, “are required by the Board of Education regulations, contend, on the other hand, that “[n] urse, superintenden t, and food services,” substantive educational program” the State is required to fund. T he plaintiffs a p plicable administrative rule,” and thus such services are “ancillary to the services on which the plaintiffs based their funding challenge, nor does any For example, t he State argues that “RSA 193 - E:2 - a mentions none of the

entry of summary judgment for either party. make clear, the und er lying facts are vigorously disputed, thereby precluding their costs presents a mixed question of law and fact, as t he parties’ briefs statute. Although determining the components of an adequate education and det ermining what is required to deliver an adequate education as defined in the is “impossible” to address the plaintiffs’ costing argument without fi rst education set forth in RSA 193 - E:2 - a, the trial court correctly observed that it plaintiffs do not challenge the constitutionality of the definition of an adequate matter of law. See JMJ Properties, 168 N.H. at p. 12 129 - 30. After n oting that the issue of material fact exists and the moving party is entitled to judgment as a Furthermore, summary judgment is warranted only when no genuine

judgment. and reverse that portion of its order g ranting the plaintiffs’ motion for summary ruling that RSA 198:40 - a, II(a) is unconstitutional as applied to the plaintiffs in invalidating R SA 198:40 - a, II(a). Accordingly, we vacate the trial court’s analysis and conclusion s, we hold that the trial court erred as a matter of law the Final Report and 2008 Spreadsheet formed the basis for the court’s RSA 198:40 - a is irrelevant to the plaintiff s’ constitutional challenge. Because employed by the legislature in determining the cost of an adequate education in not the Final Report and the 2008 Spreadsheet. Thus, the methodology However, R SA 198:40 - a and RSA 193 - E:2 - a set forth the applicable law,

ratio alone is sufficient to find that RSA 198:40 - a, II(a) is unconstitutional.” calculating the base adequacy aid in RSA 198:40 - a, II(a),” and that “[t]he faulty to support the Joint Committee’s teacher - student ratio that was used in adequate education,” that the State “lack[ed] a compelling government interest . . . results in an actual deprivation of the funda mental right to a State - funded faulty teacher - student ratios and thus concluded that “RSA 198:40 - a, II(a) that the Joint Committee’s calculation of base adequacy aid was based on the Joint Committee. I n doing so, the trial court found, among other things, Spreadsheet” regarding the costing determinations and rationale employed by to analyze each ‘flaw’ that the [plaintiffs] have highlighted in the 2008 way to determine whether the [plaintiffs] have alleged an actual deprivation is as applied to the plaintiffs, the trial court reasoned that “the most appropria te In reaching its determination that RSA 198: 40 - a, II(a) is unconstitutional p. 13 13

must address in the first instance. the data, and precisely which costs are constitutionally mandated, are issue s that the trial court costs that fall above or outside what is constitutionally mandated. T he weight a nd reliability of because it does not distinguish between the costs necessary to deliver an adequate education and adequate education. According to the State, DOE data cannot be relied upon for such an analysis plaintiffs relied upon in arguing that the State has failed to cost and fund the opportunity for an In its motion for summary judgment, the State took issue with the source of the information the 1

laws,” to “draw a warrant from the education tru st fund,” and to comply with Governor and/or the C ommissioner to “ensure the faithful execution of the correctly notes that the relief sought by the plaintiffs included ordering the Governor and the C ommissioner in their individual capacities. The State erred by granting the State’s request to dismiss the claims against the Finally, w e bri efly address the plaintiffs’ argument that the trial court

actual deprivation had occurred. statute as applied to the plaintiff school dist ricts to det ermine whe ther an [plain t i f fs] of a fundamental right on its face,” the trial c ourt analyzed the challenges to RSA 198:40 - a, and because the s t atute “does not deprive the education.” Noting that the p laintiffs alleged both facial and as - applied actual depriva tion of the fundam ental right to a State - funded adequate amount of base adequacy aid as provided in RSA 198: 40 - a, I I(a) results in an judgment. In doing do, the court framed the question before it as “whe ther the the level of scrutiny to apply in analyzing the plaintiffs’ motion for summary merits of that issue. Rather, as a threshold matter, the trial court determined unconstitutional on its face, we do not read the court ’s order as reaching the plaintiffs assert that the trial court erred in failing to find RSA 198:40 - a, II(a) erred in denying their request for injunctive relief. Further, although the State’s system of funding education violat es Part II, Article 5, or that the cou rt the plaintiffs’ arguments regarding the trial court’s failure to find that the plaintiffs are entitled to their attorney’s fees. In addition, we need not address In light of our holding, w e reverse the trial court’s d etermination that the

manner). whether the statute has been p. 14 , or is likely to be, applied in an unconstitutional have the particular facts and circumstances of the case needed to determine unconstitutionally applied to him or her and the trial judge and reviewing court that the statute has in fact been, or is sufficiently likely to be, the constitutionality of a statute the plaintiff has the burden of demonstrating Constitutional Law § 243 (2015) (explaining that in “an as applied” challenge to dispute is not suited to resolution by summary judgment. See C.J.S. 1 opportunity for an adequate education. At this stage of the litigation, this the amount of funding set forth in RSA 198:40 - a, II(a) is sufficient to deliver the that resolving this fact - driven dispute is a prerequisite for determining whether ,

retired superior court justice p. 14 , specially assigned under RSA 490:3, concurred. HICKS, BASSETT and HANTZ MARCONI, JJ., concurred; BROWN, J.,

capacities.” Accordingly p. 14 , we affirm the trial court’s ruling. were ordered to act according to the law, “they would be acting in their official fully funded,” we agree with the trial court that if either or both individuals with the New Hampshire Constitution by ensuring education is cherished and essentia lly that neither the Governor nor the C ommissioner “have yet complied grants. (Quotations omitted.) Given that the plaintiffs’ theory for relief is the statutory requirements regarding the distribution of adequate education