2025 N.H. 29, Contoocook Valley Sch. Dist. v. State

amicus curiae. Massachusetts (Jason Sorens, non - lawyer representative, on the brief), as American Institute for Economic Research, of Great Barrington,

L. Weyler, as amici curiae. Le n Turcotte, Michael Vose, Scott Wallace, Thomas C. Walsh, Jr., and Kenneth Renzullo, Alvin See, John Sellers, Vanessa Sheehan, Joe Sweeney, Chris True, McGuire, Dan McGuire, Jason Osborne, Kristine Perez, Katy Peternel, Andrew Infantine, Jim Kofalt, Roderick M. Ladd, Jr., Wayne MacDonald, Carol p. 4 4

justiciability separately below. that the trial co urt’s approach rendered the issue presented nonjusticiable. We address counsel for the State explained that the State’s “stare decisis” argument is, in fact, an argument our review to only those issues that the defendant has fully briefed.”). Indeed, at oral argument, party failed to address any of the factors); State v. Blackmer, 1 p. 4 49 N.H. 47, 49 (2003) (“[W]e confine (2020) (listing four factors and declining party’s request that we revisit a prior ruling because addressing our four stare decisis factors. See Boyle v. City of Portsmouth, 172 N.H. 781, 787 the State has not sufficiently developed a stare decisis challenge to Claremont I and its progeny by and parties later rounds of remands and appeals” (quotation omitted)). Moreover, in this appea l, “serves judicial economy by forcing parties to raise issues whose resolution might spare the court challenge. See State v. Robinson, 170 N.H. 52, 61 (2017) (explaining that the waiver doctrine The State expressly conceded during oral argument in ConVal I that it was not raising such a 2 former vice chair of the Contoocook Valley S chool B oard. Richard Dunning, current member of the Contoocook Valley S chool B oard, and Richard Cahoon,

omitted). Accordingly, this appeal presents three narrow questions: (1) whether constitutionally adequate education and to “fund it.” Id. at 155 (quotation this case concerns the State’s obligation to “determine the cost” of a of an adequate education set forth in RSA 193 - E:2 - a (Supp. 202 p. 4 4). Instead, I and its progeny. For their part, the plaintiffs do not challenge the definition 2 principles, and it has waived any argument that we should overturn Claremont [¶4] In this appeal, t he State does not contest these longstanding legal

56 (2006) (Londonderry I) (quotation omitted). through accountability.” Londonderry Sch. Dist. v. State, 15 p. 4 4 N.H. 153, 155 determine the cost, fund it wi th constitutional taxes, and ensure its delivery recognized in Claremont I, the State must “define an adequate education, 174 N.H. at 156 (citing Claremont I). To comply with the constitutional duty Claremont I and Claremont II or their constitutional underpinnings”); ConVal I, (2002) (observing that “[a]t no time has this court deviated from the holdings in right”); Claremont Sch ool Dist. v. Governor (Accountability), 147 N.H. 499, 521 State funded constitutionally adequate public education” is a “fundamental Governor, 142 N.H. 462, 473 (1997) (Claremont II) (holding that “t he right to a reaffirmed our holding in Claremont I. See, e.g., Claremont Sch ool Dist. v. Hampshire and to guarantee adequate funding.” We have, time and again, adequate education to every educable child in the public schools in New Constitution “imposes a duty on the State to provide a constitutionally ago in Claremont I, 138 N.H. at 184, we held that Part II, Article 83 of the State [¶3] We begin by articulating the scope of this appeal. Over thirty years

$7,3 p. 5 56.01 per pupi l. its order that the State immediately make base adequacy aid payments of aid, and its award of reasonable attorney’s fees to the plaintiffs, but we reverse determination of a conservative minimum threshold amount for base adequacy rulings, its declaration that RSA 198: p. 4 40 - a, II(a) is facially unconstitutional, its 5

(2) Logic and rhetoric. (1) Computer use and digital literacy.

shall be integrated into the learning areas: the learning areas under subparagraph (a). The following skills (b) Teachers shall use academic and applied instruction to teach

(11) Computer science. (10) Personal finance literacy. applications. (9) Engineering and technologies including technology (8) Physical education. violations of RSA 126 - K:8, I(a). (7) Health and wellness education, including a policy for (6) World languages. ( p. 5 5) Arts education, including music and visual arts. geography, history, and Holocaust and genocide education. (4) Social studies, including civics, government, economics, (3) Science. (2) Mathematics. (1) English/language arts and reading.

the f ollowing learning areas: shall be defined and identified as the school approval standards in program that deliver the opportunity for an adequate education thereafter, the specific criteria and substantive educational (a) Beginning in the school year 2008 - 2009, and for each year

RSA 193 - E:2 - a, see ConVal I, 174 N.H. at 1 p. 5 57. RSA 193 - E: 2 - a, I, provides: a constitutionally adequate education, see id. at 161, the legislature enacted version of RSA 193 - E:2, standing alone, did not fulfill the State’s duty to define [¶5] Following our decision in Londonderry I, which held that a prior

A. Procedural Background and Legal Context

plaintiffs. whether th e trial court erred in awarding reasonable attorney’s fees to the requiring the State to immediately provide fu nding in that amount; and (3) erred in determining a conservative minimum threshold amount and in the State Constitution; (2) if that funding is insufficient, whether the trial court education as defined by RSA 193 - E:2 - a and guaranteed by Part II, Article 83 of cost of providing the opportunity for a constitutionally adequate public under RSA 198:40 - a, II(a) is clearly and substantially insufficient to cover the the trial court erred in ruling that the amount of funding provided by the State p. 6 6

analysis. therein in it s merits analysis and n o party argues otherwise, we apply the above figures in our trial court relied upon the version of RSA 198:40 - a in the text and the funding amounts reflected annual two percent increase in the per pupil costs in RSA 198:40 - a, II). Nevertheless, because the this matter. See Laws 2023, 79:150, : p. 6 612; see also RSA 198:40 - d, I (Supp. 2024) (providing for The version of the statute quoted in the text became effective on July 1, 2023 — after trial in students with certain below proficient reading test scores. See Laws 2023, 79:150. each subparagraph and eliminated a fourth differentiated aid category applicable to third gra de membership in attendance”). Another amendment increased the per pupil funding amounts in (ADMA) to ADMR. See Laws 2022, 175:4; RSA 198:38, I (Supp. 2024) (defining “[a]verage daily changed the basis for the per pupil calculations from the average daily membership in attendance The legislature has amended RSA 198:40 - a twice during this litigation. One amendment 3

through (d) as “differentiated aid,” RSA 198:40 - a, II(a). and, as the statute itself provides, to the amounts listed in subparagraphs (b) figure in RSA 198:40 - a, II(a) as “base adequacy aid,” ConVal I, 174 N.H. at 15 p. 6 6, an adequate education.” RSA 198:40 - a, III. As in ConVal I, we will refer to the provides that “[t]he sum total calculated under paragraph II shall be the cost of RSA 198:40 - a, II; RSA 198:38, I - a (Supp. 2024) (defining ADMR). The statute 3

determination year. receiving special education services anytime during the (d) An additional $2,100 for each pupil in the ADMR who is plus English language learner anytime during the determination year; (c) An additional $800 for each pupil in the ADMR who is an determination year; plus eligible for a free or reduced price meal anytime during the (b) An additional $2,300 for each pupil in the ADMR who is aid as follows: (a) A cost of $4,100 per pupil in the ADMR, plus differentiated

membership in residence (ADMR): 198:40 - a, II defines that cost as follows based upon the average daily education grants made pursuant to RSA 198:41). As of July 1, 2023, RSA grants); RSA 198:42, II (Supp. 2024) (appropriating amount necessary to fund established in RSA 198:40 - a to calculate municipalities’ total educ ation See RSA 198:41, I (Supp. 2024) (directing DOE to use the per pupil costs municipality and the amount of funding to be appropriated by the legislature. statute, in turn, is used to calculate the total education grant for each education as defined in RSA 193 - E:2 - a. The per pupil cost set forth in the of the annual per pupil cost of providing the opportunity for an adequate [¶ p. 6 6] RSA 198:40 - a (Supp. 2024) sets forth the legislature’s determination

through twelfth grade. See RSA 193 - E:2 - a, II. This substantive educational program is designed for students in kindergarten p. 7 7

evidence to meet their initial burden of proving “a clear and substantial conflict plaintiffs’ challenge — and concluded that the plaintiffs had provided sufficient a, II(a) — consistent with its summary judgment ruling as to the scope of the compared this per pupil figure t o the $4,100 per pupil provided in RSA 198:40 of $4, p. 7 752.34 per pupil (declaratory judgment calculation). The trial court non - teacher staff, instructional materials, and technology — to reach a figure determined the cost of funding only a subset of those com ponents — teachers, development, transportation, and facilities operation and maintenance. It then custodians, and nurses), instructional materials, technology, professional guidance counselors, library and media specialists, technology coordinators, a”: teachers, certain non - teacher staff (principals, administrat ive assistants, essential to educating students in the content areas set forth in RSA 193 - E:2 - 193 - E:2 - a and their costs. See id. It first identified the “cost - drivers that are components necessary to deliver an adequate education as defined by RSA finding and analysis that we outlined in ConVal I: it determined the and comprehensive order on the merits. T he trial court performed the fact - [¶10] Following a three - week bench trial, the trial court issued a detailed

motions to exclude the plaintiffs’ experts. trial court also ruled on the parties’ motions in limine, denying the State’s pursuant to RSA 198:40 - a, II — base adequacy aid and differentiated aid. The constitutional challenge, the court must consider all the funds provided rejected the State’s legal argument that, in evaluating the plaintiffs’ judgment, both of which the trial court denied. In doing so, the trial court [¶9] On remand, the parties again filed cross - motions for summary

disputed” the underlying facts. Id. at 166 - 6 p. 7 7. presents a mixed question of law and fact” and that the parties “vigorously “determining the components of an adequate education and their costs that e ntry of summary judgment for either party was inappropria te given that grant of summary judgment to the plaintiffs. See id. at 156. We concluded denial of summary judgment to the State, and we reversed the trial court’s See ConVal I, 174 N.H. at 160. On cross - appeals, we affirmed the trial court’s as applied to them and denied the State’s cross - motion for summary judgment. summary judgment on the ground that RSA 198:40 - a, II(a) is unconstitutional [¶8] The trial court subsequently granted the plaintiffs’ motion for

the amount specified in RSA 19 p. 8 8:40 - a, II(a). requested an injunction barring the State from providing base adequacy aid in necessary for adequacy an d provides no funding for ot hers. The plaintiffs also Specifically, they alleged that the State underfunds certain components of the State Constitution and requested a declaratory judgment to that effect. the opportunity for an adequate education as guaranteed by Part II, Article 83 the amount of base adequacy aid is insufficient to cover the cost of providing as - applied constitutional challenges to RSA 198:40 - a, II(a). They alleged that [¶ p. 7 7] In March 2019, the plaintiffs filed a complaint asserting facial and 8

contends that the trial court’s injunctive orders were not supported by the evidence to establish a constitutional violation. As to the remedy, the State even under that flawed approach, the plaintiffs failed to provide sufficient that RSA 19 p. 8 8:40 - a, II(a) is facially unconstitutional. It further asserts that analytical approach and unreliable expert testimony in reaching its conclusion [¶14] On appeal, the State argues that the trial court relied upon a flawed

We granted the motion. This appeal followed. court’s merits order and post - trial order pending the outcome of any appeal. action. The State filed an expedited motion i n this court to stay the trial forth” in the merits order pending resolution of any appeal or further legislative adequacy aid payments equal to the conservative $7,356.01 threshold set respects. Importantly, it c larified that it was directing “the State to make base both motions and, in doing so, clarified its injunctive relief ruling in several “until one full legislative cycle has passed post appeal.” The trial court denied [¶13] The State moved for reconsideration and for a stay of the order

The trial court also granted the plaintiffs’ request for reasonable attorney’s fees. “bas e adequacy aid funding must exceed” the threshold of $7,356.01 per pupil. granted the plaintiffs’ request for injunctive relief to the extent that it ruled that appropriate balance between the competing interests involved.” It therefore constitutionally insufficient, it found that this threshold amount struck “the [¶12] Even though the trial court concluded this figure would be

adequacy aid in that amount “would be constitutionally insufficient.” “conservative choices and overcorrections,” it was “far too low,” and that base $7,356.01. It explained that, because this figure was the product of transportation, and facilities operation and maintenance), to reach a total of components neces sary for adequacy (teacher professional development, included in its declaratory judgment calculation to the costs of the other calculation (injunctive relief calculation): it added the costs of the components must exceed.” To ascertain that threshold, the trial court performed a separate and, instead, determined “a conservative minimum threshold such fundin g plaintiffs’ request that it “set a definitive level of base adequacy aid funding,” denied in part the plaintiffs’ request for injunctive relief. It denied the addressing separation of powers concerns, the trial court granted in part and [¶11] After considering “the history and significance” of the issue and

declaratory judgment that RSA 1 p. 9 9 p. 8 8:40 - a, II(a) is facially unconstitutional. sufficiency of the current funding level, it granted the plaintiffs’ request for a court found the State failed to offer any affirmative evidence justifying the in RSA 198:40 - a, II(a) under the strict scrutiny standard. Because the trial then shifted to the State to justify the base adequacy aid funding level set forth New Hampshire’s school districts.” (Quotations omitted.) The burden of proof necessary to fulfill the State’s constitutional obligations in all, or virtually all, of between the current level of base adequacy aid funding and the amount 9

when it permitted the plaintiffs to challenge RSA 1 p. 9 98:40 - a, II(a) in isolation, [¶18] The State first argues that the trial court erred as a matter of law

C. Threshold Legal Issues

action or inaction under strict scrutiny standard). something less than educational adequacy, we w ill examine governmental Claremont II, 142 N.H. at 474 (observing that, if school district offers whether the State could establish that the law passed strict scrutiny); restriction” on the fundamental equal right to be elected before considering (concluding first that plaintiffs had proven that statute “place [d] a severe this burden - shifting framework, and we also apply it. Cf. id. at 71 - 74 scrutiny standard). On appeal, neither the State nor the plaintiffs challenge standard. See Akins v. Sec ’y of State, 154 N.H. 67, 73 (2006) (set ting out strict burden of proof to the State to justify the statute under the strict scrutiny that the plaintiffs had satisfied that significant initial burden, it shifted the all, or virtually all, of the statute’s applications. Aft er the trial court concluded between RSA 1 p. 9 98:40 - a, II(a) and Part II, Article 83 of the State Constitution in the initial burden of proving that there is a clear and substantial conflict [¶17] In light of the above framework, in the trial court the plaintiffs bore

17 p. 9 9 (2014) (quotation omitted). all, or virtually all, of its applications.” Huckins v. McSweeney, 166 N.H. 176, judgment, an assertion that the challenged statute violates the Constitution in RSA 198:40 - a, II(a). “A facial challenge is a head - on attack of a legislative [¶16] This appeal concerns the plaintiffs’ facial constitutional challenge to

challenging a statute’s constitutionality bears the burden of proof. Id. those doubts must be resolved in favor of its c onstitutionality. Id. The party the constitution. Id. When doubts exist as to the constitutionality of a statute, be constitutional unless a clear and substantial conflict exists between it and inescapable grounds. Id. This presumption requires that we hold a statute to presume it to be constitutional and will not declare it invalid except upon review de novo. ConVal I, 174 N.H. at 161. In reviewing a legislative act, we [¶15] The constitutionality of a statute is a question of law, which we

B. Standard of Review

claim, the injunctive orders, and the award of attorney’s fees. address in turn the threshold legal issues, the merits of the constitutional set forth our standard of review for the central constitutional question and then challenges the trial court’s award of attorney’s fees to the plaintiffs. We first record and violate the separation of powers doctrine. Finally, the State p. 10 10

after trial. See O’Malley v. Little, 170 N.H. 272, 275 (2017). judgment is reviewable on appeal wh en, as here, the case proceeds to the entry of final judgment because the State has not briefed the preliminary question of whether a denial of summary constitutional claim could proceed to trial. We decline to entert ain that argument, however, judgment after remand, arguing that the court erred in ruling that the plaintiffs’ isolated The State raises a similar challenge to the trial court’s denial of its cross - motion for summary 4

whether the sum of base adequacy aid and differentiated aid is sufficient to for an adequate education. As the trial court correctly recognized, conside ring student, some students require additional support to receive the opportunity formula recognizes that, although there is a base cost for each and every students receiving special education services. See RSA 198:40 - a. This costing reduced price meals, students who are English language learners, and populations identified in those subparagraphs — students eligible for free or necessary to provide the opportunity for an adequate education to the student set forth in II(b) - (d) represent t he cost of delivering additional services meet any of the eligibility criteria in subparagraphs II(b) - (d), while the amounts adequate education as defined in RSA 193 - E:2 - a to a student who does not conclude that subparagraph II(a) is intended to state the cost of providing an [¶21] Reading this language in the context of the statute as a whole, we

educat ion services. RSA 198:40 - a, II. or reduced price meal, is an English language learner, or receives special each pupil who, at any time during the determination year, is eligible for a free cost is $4, p. 10 100 per pupil “plus differentiated aid” of “additional” amounts for E:2 - a shall be as specified in paragraph II.” Paragraph II provi des that such providing the opportunity for an adequate education as defined in RSA 193 education. We disagree. RSA 198:40 - a, I, provides that “the annual cost of adequacy aid alone is sufficient to deliver the opportunity for an adequate education,” the trial court erred when it limited its inquiry to whether base “sum total calculated under paragraph II shall be the cost of an adequate [¶20] The State asserts that, because RSA 198:40 - a, III provides that the

have said, nor add words that it did not see fit to include. Id. In construing a statute, we will neither consider what the legislature might of a statute, we ascribe the plain and ordinary meaning to the words used. Id. review de novo. See ConVal I, 174 N.H. at 163. When examining the language [¶19] This issue raises a question of statutory interpretation, which we

II(a) in isolation. conclude as a matter of law that the plaintiffs may challenge RSA 198:40 - a, appeal because, even if we assume in the State’s favor that we did not, we now We need not decide whether we conclusively resolved this question in the prior challenge RSA 198:40 - a, II(a) independently of subparagraphs II(b) through (d). plaintiffs counter that this court already decided in ConVal I that they could rather than challenging the total funding provided in RSA 198:40 - a, II. The 4 p. 11 11

198:40 - a, II(d), exceeds the total amount of differentiated aid received by the districts. those witnesses testified that the amount their districts spend on special education alone, see RSA 198:40 - a, II(b) - (d), exceed the differentiated aid they receive from the State. In fact, several of expenditures on the additional services for students qualifying for differentiated aid, see RSA finding. Witnesses from fourteen of the plaintiff school districts testified that, in their districts, alone, it found that “many schools receive very little [differentiated] aid.” The record supports that such evidence. Although the trial court’s analysis focused on the sufficiency of base adequacy aid differentiated aid at trial, notwithstanding the trial court’s in limine ruling precluding admission of court observed, both the plaintiffs and the State introduced “substantial evidence” about would have altered the conclusion that the State is providing insu fficient funding. As the trial provided under RSA 198:40 - a, II, we are doubtful that the consideration of differentiated aid Moreover, even if the scope of the constitutional inquiry had been the total amount of funding 5

court’s approach. We agree with the plaintiffs. purely legal one. The State responds that ConVal I did not endorse the trial that answering this question requires a mixed factual and legal inquiry, not a construction. The plaintiffs counter that this court already decided in ConVal I for an adequate education is simply a matter of statutory and regul atory such as nurses or transportation, are necessary for delivering the opportunity education as a matter of fact. It asserts that determining whether components, statute and, instead, determined the compone nts necessary for an adequate determine as a matter of law which components fall within the scope of the when it failed to interpret RSA 193 - E:2 - a and associated regulations to [¶23] The State next argues that the trial court committed legal error

court’s constitutional inquiry. grant” for each municipality). In sum, we find no error in the scope of the trial education”); RSA 198:41, I (governing determination of the “total education need grants “[i]n addition to aid for the cost of the opportunity for an adequate purpose. See, e.g., RSA 198:40 - f, I (Supp. 2024) (providi ng for extraordinary that the other statutes it relies upon provide funding directed to that specific defined in RSA 193 - E:2 - a.” RSA 198:40 - a, I. The State has not persuaded us “the annual cost of providing the o pportunity for an adequate education as than RSA 198:40 - a, we disagree. By its plain language, RSA 198:40 - a governs court erred by not considering sources of funding originating in statutes other [¶22] To the extent the State makes a broader argument that the trial

no additional needs. 5 cost of providing the opportunity for an adequate education to a student with student populations identified in II(b) - (d) and, instead, focused solely on the “additional” costs attributable to provid ing an adequate education to the trial court properly declined to consider differentiated aid fundi ng and the in assessing the plaintiffs’ constitutional challenge to RSA 198:40 - a, II(a), the functions of base adequacy aid and differentiated aid as set forth in the statute: language of RSA 198:40 - a. Ultimately, the trial cour t recognized the distinct divert differentiated aid funds to other purposes,” contrary to the plain provide an adequate education as defined in RSA 193 - E:2 - a “could improperly p. 12 12

schools need facilities operation and maintenance to provide such instruction. areas, yet it was not reasonable for the trial court to find, for example, that that schools need teachers to provide instruction in the enumerated learning articulated a convincing reason why it was “fa ir game” for the trial court to find components are necessary for adequacy. The State has not, however, E:2 - a and associated regulations and make factual determinations about which necessary — for the trial court to look beyond the plain language of RSA 193 - [¶27] Thus, the State has recognized that it was appropriate — if not

RSA 193 - E:2 - a and “that would be an area of factual inquiry for a trial court.” “part of instruction, materials, and assessment for” the learning areas listed in two categories” for which someone could question whether the component is Counsel for the State also stated at oral argument that “there may be one or you’re going to need teachers, for materials you’re going to need technology.” “fair game” for the trial court to find as a factual matter that “for instruction acknowledged that, because those areas are covered as a matter of law, it was professional development. At oral argument, counsel for the State “reasonably cover[]” instruction, assessment, materials, and teacher brief that, as a matter of law, RS A 193 - E:2 - a and the applicable regulations necessary to determine the required components. It conceded in its opening be persuaded. The State’s own position demonstrates that factual inquiry was [¶26] Moreover, even if we were to consider this issue anew, we would not

purely legal matter. See Saunders, 160 N.H. at 566 - 67. State’s argument that determining the components necessary for adequacy is a Accordingly, the law of the case doctrine precludes us from reexamining the the State was not entitled to judgment as a matter of law on this basis. See id. resolution by summary judgment.” Id. at 166 - 67. In short, we decided that as presenting “a mixed question of law and fact” that was “not suited to See ConVal I, 174 N.H. at 167. We described this dispute as “fact - driven” and within the scope of RSA 193 - E:2 - a and must therefore be funded by the State. ConVal I, we explained that the parties disagreed about which components fall [¶25] The State raised th is same argument in the prior appeal. Indeed, in

omitted). second appeal.” State v. Robinson, 170 N.H. 52, 60 - 61 (2017) (quotation reached and decided in the first appeal remain open on remand and on a (quotation and brackets omitted). On the other hand, “points of law not by necessary inference from the disposition, constitute the law of the case.” Id. doctrine, “only such issues as have actually been decided, either explicitly, or successive stages of the same litigation.” Id. (quotation omitted). Under this as the law of the case, and becomes binding precedent to be followed in (quotation omitted). Thus, the question decided in the first appeal is “known subsequent appeal.” Saunders v. Town of Kingston, 160 N.H. 560, 566 (2010) on appeal to this court are not ordinarily reexamined in the same case upon a [¶24] The law of the case doctrine provides that “[q]uestions once decided p. 13 13

challenged pretrial and who testified at trial. testify at trial. We therefore confine our analysis to only those experts whose testimony the State disclosed experts either were not the subject of the Stat e’s motions in limine or did not ultimately limit the testimony of “all of the plaintiffs’ disclosed experts.” However, several of the plaintiffs’ The State contends that the trial court erred when it denied the State’s motions to exclude or 6 assess at trial whether the testimony met the threshold admissibility court denied the motions prior to trial subject to its ability as fact - finder to administrators, chief operating officers, or chief financial officers. The trial employed by the plaintiff school districts as superintendents, business Bruce Baker, Dr. Kimberley Rizzo - Saunders, and fourteen witnesses who are [¶31] The State moved in limine to exclude the expert testimony of Dr.

case. Id. (quotation omitted). that the rulings were “clearly untenable or unreasonable to the prejudice” of its decisions were not sustainable, the State as the appealing party must show Hitchcock Clinic, 154 N.H. 662, 665 (2006). To show that the trial court’s unsustainable exercise of discretion standard. See Milliken v. Dartmouth - [¶30] We review the trial court’s admission of expert testimony under our

relevant evidence, not flawless evidence. Id. RSA 516:29 - a is to ensure that a fact - finder is presented with reliable and (2023) (quotation and brackets omitted). The overall purpose of Rule 702 and an expert’s testimony.” Szewczyk v. Continental Paving, 176 N.H. 148, 156 permitting the fact - finder to determine the weight and credibility to be affor ded functions as a gatekeeper, “ensuring a methodology’s reliability before U.S. 579, 592 - 95 (1993)). When applying RSA 516:29 - a, the trial court codify principles outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 comply with RSA 516:29 - a (2021). Id. (explaining that portions of statute (2018). To determine the reliability of expert testimony, the trial court must level of reliability. Stachulski v. Apple New England, LLC, 171 N.H. 158, 163 witness testimony. To be admissible, expert testimony must rise to a threshold Hampshire Rule of Evidence 702 authorizes the trial court to admit expert when it admitted the testimony of certain of the plaintiffs’ experts. New 6 [¶29] We next address the State’s arguments that the trial court erred

D. Admissibility of Expert Testimony

at 166 - 67. We therefore conclude the trial court committed no error. mixed legal and factual inquiry that we directed it to undertake in ConVal I. Id. components. ConVal I, 174 N.H. at 166. In short, it performed precisely the an adequate education as defined” by that statute and the cost of those comprehensive factual inquiry, determined the components “required to deliver opportunity for an adequate education and then, through an extensive and controlling law defining the substantive educational program that delivers the [¶28] Ultimately, the trial court began with RSA 193 - E:2 - a as the p. 14 14

State v. Cort, p. 14 145 N.H. 606, 614 (2000). “The appropriate method of testing the weight to be accorded the opinion evidence, and not to its admissibility.” accuracy of the experts’ understanding of the relevant legal defini tions — go “to such objections to the basis for the experts’ opinions — the extent and adequate education can be determined solely as a matter of law. Furthermore, on a premise we have already rejected — that the components necessary for an opinions on the definition of adequacy in RSA 193 - E:2 - a. This argument rests Rizzo - Saunders. The State first avers that these experts failed to base their [¶34] We now turn to the State’s arguments as applied to Baker and

406, 4 p. 14 14 (2011). arguments as to these fourteen experts waived. See Wyle v. Lees, 162 N.H. these fourteen witnesses was inadmissible. Accordingly, we deem the State’s brief, without any citations to the record, to its arguments that the testimony of necessary to do so. The State devotes at most two or three sentences in its the realities of operating their respective school districts and the expenditures at trial these fourteen witn esses offered primarily factual testimony describing arguments to warrant appellate review. Although initially disclosed as experts, school districts, we conclude that the State has not sufficiently developed these [¶33] With respect to the fourteen witnesses employed by the plaintiff

forth in RSA 516:29 - a, II(a). the experts’ opinions were not sufficiently reliable under the standards set adequate education the Legislature adopted through RSA 193 - E:2 - a”; and (2) because: (1) the experts failed to “tether[] their opinions to the definition of an contends that the experts’ testimony did not meet the threshold of reliability rather, it challenges the reliability of the proffered experts’ testimony. It [¶32] The State does not challenge the witnesses’ expert qualifications;

proof presented at pretrial hearing). N.H. at 163 (reviewing denial of motion in limine based only upon offers of trial testimony to affirm ruling that expert was qualified); cf. Stachulski, 171 testimon y. See State v. Pelletier, p. 14 149 N.H. 243, 250 - 51 (2003) (relying upon determine whether the court sustainably admitted the challenged expert rely upon the trial, not the pretrial, record, we look to the trial record to admissibility determinations open to revision at trial and both parties’ briefs challenged experts’ testimony. Nonetheless, because the tr ial court left its the experts’ testimony at trial or that it moved to strike any portion of the standard. On appeal, the State does not assert that it renewed its objections to to strike any trial testimony they bel ieved did not meet the admissibility (quotation omitted)). The trial court also expressly invited the parties to move it turns out not to meet the standard of reliabi lity established by Rule 702.” admitting the evidence subject to the ability later to exclude it or disregard it if the factfinder and the gatekeeper are the same, the court does not err in Industrial Power Systems, Inc., 553 F. Supp. 2d 28, 31 (D.N.H. 2008) (“[W]here requirements and to strike any testimony failing to do so. See Warford v. p. 15 15

(4). Further, the formal report produced for the Commission illustrates that statistical analyses could be tested and replicated. See RSA 516:29 - a, II(a)(1), education, and testimony of the same expert demonstrated that Baker’s employed one of the four generally accepted methods for calculating the cost of under RSA 516:29 - a, II(a). One of the State’s experts testified that Baker [¶37] The trial record supports that Baker’s methodology was reliable

opined that such cost is $9,964 per pupil — excluding transportation costs. average student enrollments in elementary, middle, and high school. He report calculation to estimate the per pupil cost in a theoretical district with elementary students only. Baker then independently extrapolated upon the the per pupil cost of adequacy for a theoretical school district enrolling j ustified approach to establishing school funding policy.” The report estimated based model” proposed in the report “as the best, most rational and empirically educational outcomes. The Commission subsequently adopted the “outcomes statistical modeling to predict the spending needed to achieve certain General Court Commission to Study Scho ol Funding in 2020, which used he produced in collaboration with other researchers for the New Hampshire court sustainably admitted Baker’s testimony. Baker testified about the report [¶36] Based upon our review of the record, we conclude that the trial

reliability of scientific testimony is challenged.” Id. (quotation omitted). factors “do not all necessarily apply even in every instance in which the Baxter v. Temple, p. 15 157 N.H. 280, 284 (2008) (quotation omitted). In deed, these (Emphasis added.) The II(a) factors are “meant to be helpful, not definitive.”

specific to the proffered testimony. (b) In making its findings, the court may consider other factors

literature. (4) Are generally accepted in the appropriate scientific (3) Have a known or potential rate of error; and (2) Have been subjected to peer review and publication; (1) Have been or can be tested; that: the expert’s opinions were supported by theories or techniques court shall consider, if appropriate to the circumstances, whether (a) In evaluating the basis for proffered expert testimony, the

the standards set forth in RSA 516:29 - a, II(a). RSA 516:29 - a, II provides: determined that the proffered expert testimony was sufficiently reliable under [¶35] The State next contends that the trial court erred when it

witnesses’ understanding of the definition of an adequate education. State had ample opportunity at trial to test any purported defects in the the basis of an expert’s opinion is by cross - examination of the expert.” Id. The p. 16 16

admission of t he testimony of Baker and Rizzo - Saunders was clearly the State has not met its burden of demonstrating that the trial court’s had not relied upon scientific studies to support hypothesis). We conclude that roadway flooding even though expert theory had not been tested and expert p. 16 160 - 61 (reversing trial court’s exclusion of expert testimony a bout cause of evaluate the weight to be accorded her testimony. See Szewczyk, 176 N.H. at and 2018 legislative committee reports, which permitted the trial court to reasoning behind her deviations f rom the components and costs in the 2008 could deem her methodology reliable. The record reflects the basis for and the legislative committees provide an objective basis upon which the trial court [¶40] The similarities between Rizzo - Saunders’ approach and that of the

adequacy is $9,929 per pupil excluding transportation. gat hered from colleagues in other school districts. She opined that the cost of involvement in the budget process — as well as DOE data and information education, training, and decades of experience in the field — including her consistent with real world costs.” Those adjustments were based upon her education). Rizzo - Saunders then “adjusted the components that were the least committee to study education funding and cost of opportunity for adequate C ommittee on C osting an A dequate E ducation); Laws 2017, 190:1 (establishing and 2018. See Laws 2007, 270:2 (establishing the J oint L egislative O versight by legislative committees studying the cost of an adequate education in 2008 per pupil basis. Their analysis began with the components and costs ado pted methodology” that examined the necessary components and their costs on a adequate education after working with three colleagues to apply an “input principal. She reached her opinion as t o the cost of the opportunity for an Hampshire schools, including as a teacher, curriculum coordinator, and District and has, over her thirty - year career, worked in many capacities in New [¶39] Rizzo - Saunders is the superintendent of Contoocook Valley School

met the threshold of reliability. Nevertheless, the trial record amply supports that Rizzo - Saunders’ testimony matter that the law grants the trial judge broad latitude to determine.”). are, or are not, reasonable measures of reliability in a particular case is a Carmichael, 526 U.S. 137, 153 (1999) (“[W]hether Daubert ’s specific factors other factors specific to the proffered testimony”); Kumho Tire Co. v. appropriate to the circumstances” and providing that “court may consider testimony. See RSA 5 p. 16 16:29 - a, II (listing factors court shall consider “if ruling that the RSA 516:29 - a, II(a) factors had little applicability to her years of experience. Accordingly, we find no error in the trial court’s pretrial upon academic research or statistical models, but on her education and thirty [¶38] In contrast, Rizzo - Saunders’ opinion testimony was not premised

RSA 5 p. 16 16:29 - a, II(a)(2) - (3). Baker’s work has been published and that it has a known rate of error. See p. 17 17

N.H. 734, 743 - 44 (2008) (Londonderry II) (Duggan, J., dissenting) (“The State maintains that the operation and maintenance are necessary for adequacy. See Londonderry Sch. Dist. v. State, 157 State took the position in prior school funding litigation that transportation and facilities that, among other things, repealed and reenacted RSA 198:40 - a). Consistent w ith that report, the (Joint Committee’s report formed “an integral basis of the costing determinations reflected” in act RSA 193 - E:2 - a. See Laws 2007, 270:2 (establishing Joint Committee); Laws 2008, p. 17 173:1, II - III, :5 estimating the per pupil cost of providing the opportunity for an adequate education as defined in the Joint Legislative Oversight Committee on Costing an Adequate Education in its 2008 report Notably, all but one of the components found by the trial court (nurses) were also included by 7

principals, administrative assistants, custodians, and nurs es. The trial 7 RSA 193 - E:2 - a: facilities operation and maintenance, transportation, necessary to provide the opportunity for the adequate education described in by the State, as well as t he other components that the trial court found are evidentiary support for the trial court’s inclusion of the components conceded adequacy. Based on our review of the record, we conclude that there is support for the additional components the trial court found necessary for rejected above. The State does not, however, dispute that there is evident iary should not have included them as a matter of law — an argument that we included in its cost calculations, the State argues only that the trial court professional development. As to the other components that the trial court technology coordinators, instructional materials, technology, and teacher adequacy: teachers, guidance counselors, library and media specialists, [¶43] The State concedes that the following components are necessary for

evidence was presented. Id. province of the trial cou rt to accept or reject, in whole or in part, whatever determining the weight to be given to the evidence. Id. at 296. It is within the resolving conflicts in the testimony, measuring the credibility of witnesses, and N.H. 291, 295 (2022). We defer to the trial court’s judgment on such issues as evidentiary support or are legally erroneous, see Gaucher v. Waterhouse, p. 17 175 uphold the trial court’s factual findings and rulings unless they lack to the constitutionality of the statute, see ConVal I, 174 N.H. at 161, we will [¶42] Although we review de novo the trial court’s ultimate conclusion as

proof under strict scrutiny.” We agree with the plaintiffs. shifted to the State, it “failed to provide any evidence to meet its burden of court’s conclusion that they satis fied their burden and that, once the burden State Constitution. The plaintiffs counter that the record supports the trial substantial conflict between RSA 198:40 - a, II(a) and Part II, Article 83 of the concluded that the plaintiffs met their initial burden of showing a clear and [¶41] On the merits, the State argues that the trial court erred when it

E. Merits of the Facial Constitutional Challenge to RSA 198:40 - a, II(a)

at 665. untenable or unreasonable to the prejudice of its case. See Milliken, 154 N.H. p. 18 18

. . . .” (quotation omitted)). universal cost per pupil also includes . . . facilities operation and maintenance, and transportation

constitutionally in sufficient funding in some school districts. the cost of providing an adequate education in a manner that could result in therefore reject the implic ation that the trial court was compelled to determine less than educational adequacy” will be subject to strict scrutiny). We inaction causing an individual school or school district to “offer[] something see also Claremont II, 142 N.H. at 474 (observing that government action or id. (“The constitution mandates statewide adequacy — not statewide equality.”); constitutionally exceed the adequacy threshold, but it may not fall short. See adequacy, the legislature’s costing and funding of public education may for each educable child.”). Given that the constit ution mandates statewide (“It is . . . the State’s obligation to underwrite the cost of an adequate education every school district in the state. See Opinion of the Justices, 145 N.H. at 478 be sufficient to provide the opportunity for an adequate education in each and aid. See RSA 198:40 - a, II(a). The amount of base adequacy aid must therefore adequate education through a universal amount of per pupil base adequacy [¶45] The legislature has nevertheless chosen to fund the cost of an

horizon t al resource replication from school to school and district to district”). (explaining that right to constitutionally adequate education “is not the right to 145 N.H. 474, 478 (2000); see also Claremont II, 142 N.H. at 473 - 74 district.” Opinion of the Justices (Reformed Public School Financing System), constitutionally adequate education may not be the same in each sc hool These facts illustrate a reality we have previously acknowledged: “the cost of a $39,000, another district is unable to do so with a salary of over $43,000. retain first - year teachers necessary for adequacy at a starting y early salary of example, the trial record reflects that while one school district can recruit and fund the opportunity for an adequate education in many school districts. For each component statewide could result in a total c ost that fails to sufficiently disagree. In practice, a calculation that tallies up the lowest cost to provide which any school district could provide each of the necessary components, we education, the trial court should have used the sum of the lowest costs at State argues that, to calculate the cost of the opportunity for an adequate the lowest adequate figure the trial court could have found.” To the extent the [¶44] The State’s overarching critique of this calculation is that it “is not

nurses ($294), instructional materials ($300), and technology ($100). and media specialists ($123), technology coordinators ($121), custodians ($98), ($262), administrative assistants ($115), guidance counselors ($ p. 18 182), library components it found necessary for adequacy: teachers ($3,157.34), principals was the sum of the per pupil cost s of only the following subset of the court’s declaratory judgment calculation, which totaled $4,752.34 per pupil, p. 19 19

at $1,780 per pupil. We conclude that the trial court’ s conservative approach, operation and maintenance, and transportation — which it valued collectively it found necessary to adequacy — teacher professional development, facilities overages. The trial court omitted the per pupil cost of several components that declaratory judgment calculation, which more than offset any potential components, it declined to include the cost of several other components in its [¶49] E ven if the trial court did not use the lowest possible cost for these

adequacy threshold. these two specific cost areas failed to account for expenditures exceeding the adequacy. Accordingly, we are not persuaded that the trial court’s inputs for witnesses testified were necessary to recruit and retain teachers to achi eve Saunders and which fell in the middle of the contribution ranges other court adopted, which was two percent less than that proposed by Rizzo percentage of employer contribution to health insurance coverage that the trial adjustment is supported by the record. The record also supports the who select a single - person plan, a buyout, or opt out of coverage. That expressly deviated from Rizzo - Saunders’ calculation to account for teachers adjusted for any expenditures that may exceed adequacy. The trial court [¶48] The trial court’s approach to costing teacher health insurance also

Rizzo - Saunders. Saunders’ calculations, and applied a higher student - teacher ratio than did adopt an increase for “specialty teachers,” which was include d in Rizzo determining the overall per pupil cost of teachers, the trial court declined to to trial and which she testified were likely less than necessary. Further, in estimates for materials and technology, wh ich she determined five years prior beyond adequacy. The trial court adopted Rizzo - Saunders’ conservative cost instructional materials, and technology corrected for any amounts that may go [¶47] T he trial court’s conservative approach to costing teachers,

owe deference. See Gaucher, 175 N.H. at 295 - 96. arguments concern factual determinations made by the tr ial court, to which we insurance cost was greater than necessary to provide adequacy. These outside the scope of RSA p. 19 193 - E:2 - a and that the trial court’s teacher health the cost of instruction and materials for certain courses the State asserts fall necessary for adequacy; rather, it c ontends that the trial court failed to exclude that the cost of instruction and materials and teacher health insurance are aspects of teacher health insurance. To be clear, the State does not dispute materials in subject areas falling outside of RSA 193 - E:2 - a, as well as certain costs included by the trial court that may go beyond adequacy: instruction and mandated and “may go beyond ade quacy.” It provides two specific examples of what portion” of its calculation covers services that are not constitutionally ground that the trial court did not “identify, and the record does not reveal, [¶46] The State also attacks the declaratory judgment calculation on the p. 20 20

for an adequate education and who did not attempt to explain the sufficiency of were experts who offered no opinion as to the cost of providing the opportunity [¶54] The State called three witnesses at trial. Two of those witnesses

level.” not offer affirmative evidence justifying the sufficiency of the current funding meet it. The trial court observed, and the record confirms, that “the State did the trial court’s conclusion that, once the burden shifted, the State failed to interest” justifying the current level of funding, nor has it otherwise disputed [¶53] On appeal, the State has not identified a “compelling governmental

purpose.” Id. at 73 (quotation omitted). interest and must be necessary to the accomplishment of its legitimate scrutiny standard, a law must “be justified by a compelling governmental under strict scrutiny. See Akins, 154 N.H. at 7 2 - 7 3. To satisfy the strict [¶52] The burden then shifted to the State to justify RSA 198:40 - a, II(a)

constitutionally sufficient. defeated the presumption that the current level of base adequacy aid is N.H. at 161. Accordingly, the trial court properly concluded that the plaintiffs to all, or virtually all, of New Hamps hire’s school districts. See ConVal I, 174 between RSA 198:40 - a, II(a) and Part II, Article 83 of the State Constitution as State’s funding of base adequacy aid, creating a clear and substantial conflict [¶51] We hold that the evidence demonstrates a significant shortfall in the

reasonable. judgment c alculation was conservative, supported by the record, and eminently all the reasons discussed above, we conclude that the trial court’s declaratory charter schools from state statutes and rules, other than where specified”). For 194 - B:1 - a, V ( p. 20 2018) (providing that part of purpose of chapter is to “[e]xempt B:2 (2018) (governing establishment of chartered public sc hools); see also RSA public schools, spend on average more than $9,000 per pupil. See RSA 194 schools, which are exempt from some legal requirements applicable to other of less than $14,000 per pupil that year. There is also evidence that charter school year was $19,399.97, and that no school district reported expenditures the statewide average public school per pupil expenditure for the 2021 - 2022 $9,92 9 per pupil and Baker’s estimate was $9,964. It is also undisputed that more than double what the trial court found: Rizzo - Saunders opined that it is providing an adequate education without including the cost of transportation is the actual deficit. There is competent evidence in the record that the cost of deficit of $652.34 per pupil. We conclude that this is a conservative estimate of pupil and the $4,100 per pupil provided in RSA 198:40 - a, II(a) results in a [¶50] Comparing the declaratory judgment calculation of $4,752.34 per

any costs that “may go beyond adequacy.” applied throughout and on a line - by - line basis, ensured that it corrected for p. 21 21

trial court as to whether State is providing sufficient adequacy funding). remedies could include remand for factual development and determination by and observing that, in the absence of legislative action, potential judicial 154 N.H. at 156 - 57, 162 - 63 (summarizing history of sc hool funding litigation justiciability of the constitutional question presented. See, e.g., Londonderry I, jurisprudence spanning the last three decades conclusively demonstrates the (describing justiciability as a “threshold matter”). Our school funding of its opening brief. See Petition of Smart, 175 N.H. 656, 658 (2023) failed to raise this issue in ConVal I, the State raises it in this appeal at the end [¶57] Nor are we convinced by the State’s justiciability argument. Having

issue. Senate President, 152 N.H. 124, 129 (2005), we see no sep aration of powers whether laws passed by the legislature are constitutional,” Baines v. N.H. unpersuaded. Given that it is the judiciary’s “constitutional duty . . . to review conclude that the plaintiffs’ constitutional challenge is nonjusticiable. We are that ruling violated the separation of powers doctrine or that we should court’s declaration that RSA 198:40 - a, II(a) is facially unconstitutional because [¶56] The State argues in the alternative that we should reverse the trial

that the State failed to meet its burden of justifying RSA 198:40 - a, II(a). adequacy it must pay for.”). Accordingly, the trial court properly concluded 154 N.H. at 162 (“Whatever the State identifies as comprising constitutional adequate education. See ConVal I, 174 N.H. at 156 - 57; see also Londonderry I, constitutional obligation of determining the cost of the opportunity for an State’s witnesses is that it is impossible for the State to satisfy its court of the sufficiency of base adequacy aid, the import of the testimony of the [¶55] In short, rather than presenting affirmative evidence to the trial

he could not create a workable budget funded by only those sources of aid. frustrated when, even after cutting essential personnel, it became evident that explained that he di d not complete that exercise, however, because he became district that was funded solely by base adequacy aid and differentiated aid. He testified that he had previously been tasked with creating a budget for the witness, the business administrator for one of the plaintiff school districts, to $10, 512 adjusting for inflation through April 2023. The State’s third school district in Massachusetts to be approximately $6,300 per pupil — equal 2001 he had estimated the cost of a “foundation budget” for a hypothetical cost out adequacy that is reliable.” T hat expe rt also acknowledged that in exercise” and explained that he does not believe “there is any costing method to determining the cost of an adequate education in any state is not “a feasible education” or “how much it costs” to provide. The other expert opined that “know the components necessary to provide a constitutionally adequate and conclusions of the plaintiffs’ experts. One expert conceded that he did not current base adequacy aid; rather, these experts merely critiqued the analyses p. 22 22

immediately increase base adequacy aid. injunctive ruling in part, we reverse it to the extent that it ordered the State to immediate payment directive. Accordingly, although we affirm the trial court’s the conclusion in P art II(B) that the trial court erred when it issued the amount; a distinct three members of the court agree with the reasoning and with the trial court’s determination of a conservative minimum threshold powers doctrine. As set forth in P art II(A), three members of this court agree directive to the State to increase funding immediately violates the sepa ration of court’s figure is not adequately supported by the record and that the court’s action. The State challenges both aspects of the ruling, arguing that the adequacy aid payments of $7,356.01 per pup il pending further legislative funding must exceed”; and a directive that the State immediately make base “a conservative minimum threshold of $7,356.01 which base adequacy aid [¶60] The trial court’s injunction has two elements: the determination of

erroneous findings of fact. Id. absent an error of law, an unsustainable exercise of discretion, or clearly Rea lty Trust, 164 N.H. at 66. We will uphold the issuance of an injunction does not support them or they are erroneous as a matter of law. Malborn (2015). We will uphold the trial court’s factual findings unless the evidence circumstances in each case. City of Keene v. Cleaveland, 167 N.H. 731, 742 decision to grant equitable relief necessarily depends upon the factual Town of Atkinson v. Malborn Realty Trust, 164 N.H. 62, 66 (2012). The injunction after consideration of the facts and established principles of equity. N.H. 314, 316 (1982). It is within the trial court’s sound discretion to grant an considered an extraordinary remedy. Murphy v. McQuade Realty, Inc., 1 p. 22 22 issuance of injunctions, either temporary or permanent, has long been [¶59] We next turn to the trial court’s award of injunctive relief. The

court’s declaratory judgment that the statute is facially unconstitutional. the merits of the appeal” (quotation omitted)). We therefore affirm the trial issues are nonjusticiable, we would lack jurisdiction and could not “proceed to 267 (20 p. 22 22) (deciding first whether issues appealed were justiciable because, if review.”); Richard v. Speaker of the House of Representatives, 175 N.H. 262, Baines, 152 N.H. at 128 (“If a question is not justiciable, it is not ours to whether the question presented is nonjusticiable. This we wi ll not do. See adjudicate the merits of this dispute and then decide, based on that outcome, doctrine of justiciability on its head in that it would require us to first challenges under Part II, Article 83 n onjusticiable.” This argument turns the authorize what the trial court did here, then those decisions have rendered brief that, “if this Court’s past school - funding decisions contemplate or [¶58] Tacitly acknowledging this reality, the State contends in its reply p. 23 23

that the State Constitution requires lower class s izes or student - teacher ratios court, arguing that there is “no evidentiary basis for the trial court to conclude [¶65] The State contests the student - teacher rati os used by the trial

teachers, it reduced the student - teacher ratios. all components it found necessary for adequacy and, in calculating the cost of analysis relative to its declaratory judgment calculation: it included the cost of and transportation ($750). The trial court made two key changes in this professional de velopment ($30), facilities operation and maintenance ($1,000), nurses ($294), instructional materials ($300), technology ($100), teacher media specialists ($1 p. 23 23), technology coordinators ($121), custodians ($98), administrative assistants ($115), guidance counselors ($182), library and components and per pupil costs: teachers ($3,981.01), principals ($262), conservative minimum threshold figure of $7,356.01 based on the following conservative minimum threshold amount. The trial court reached the [¶64] We next turn to the State’s evidentiary challenges to the

powers. court carefully avoided the usurpation of legislative or executive branch (Emphasis added.) In crafting a conservative min imum threshold, the trial children with the opportunity for a constitutionally adequate public education.” education funding scheme, so long as such alterations provide New Hampshire that its ruling “does not prohibit the legislature from meaningfully altering the the legislature maintains the existing funding scheme in substantial part,” but reconsider that this minimum threshold is intended to serve as a guidepost “if [¶63] The trial court clarified in its order on the State’s motion to

threshold” that base adequacy aid “must exceed”: $7,356.01. remedy, and determined that it should establish “a conservat ive minimum fundamental right to an adequate education, and the need for a judi cial along with the history of school funding litigation, the significance of the aid] funding necessary.” Instead, it weighed separation of powers concerns trial court declined to determine the “exact per - pupil amount of [base adequacy weighing separation of powers concerns. In deference to the legislature, the [¶62] The trial court began its consideration of the appropriate remedy by

branch es. threshold amount to avoid usurping any essential powers of the other painstakingly crafted the unique remedy of the conservative minimum Assoc. v. Governor, 161 N.H. 378, 386 (2011). Here, the trial court from usurping an essential power of another. See New Hampshire Health Care Separation of Powers Clause, N.H. CONST. pt. I, art. 37, prevents one branch conservative minimum threshold violates the Separation of Powers Clause. The [¶61] At the outset, we reject the State’s argument that the trial court’s

A. Conservative M inimum T hreshold for B ase A dequacy A id p. 24 24

fundamental right to a constitutionally adequate public education.” school funding litigation, and the “depriv[ation] of [public school children’s] the parties’ competing interests, separation of powers concerns, the history of pupil — effective immediately. In reaching this ruling, the trial court balanced increase its base adequacy aid payments to the threshold — $7,356.01 per directed that, pending appeal and further legislative action, the State must [¶68] I n denying the State’s request for a stay, the trial court additionally

B. Immediate P ayment D irective

future legislative action. $7,356.01 which base adequacy aid funding must exceed” as guidance for injunction to the extent it established “a conservative minimum threshold of Malborn Realty Trust, 164 N.H. at 66. Accordingly, we affirm the trial court’s trial court’s injunctive relief calculation is supported by the record. See remove costs that may go beyond adequacy. We therefore conclude that the transportation — and that the trial court adjusted the am ounts as necessary to teacher professional development, facilities operation and maintenance, and comp onents the trial court included in its injunctive relief calculation — observe that there is record support for the per pupil costs of the additional context of reviewing the declaratory judgment calculation. Nonetheless, we injunctive relief calculation that differ from those we addressed above in the [¶67] The State does not raise any additional evidentiary challenges to the

estimate necessary to ensure adequacy. during the entire school day and that 75% instruction time is a conservative not be possible to recruit and retain teachers to provide classroom instruction of a lunch break and a preparation period. The record supports that it would classroom instruction for “at most” 75% of the school day due to the necessity then reduced those ratios to account for the fact that teachers can provide that “‘class size’ is very different from ‘student to teacher ratio.’” The trial court student - teacher ratios, and the record supports the trial court’s observation ratios were derived from an ad ministrative rule governing class sizes, not 1:30 ratios relied upon by the State as its starting point, even though those (grades 3 - 12) respectively for a blended ratio of 1:21.63. It used the 1:25 and [¶66] The trial court applied ratios of 1:18.75 (grades K - 2) and 1:22.50

regarding student - teacher ratios. 20 p. 24 24). We disagree. The record amply supports the trial court’s conclusions retitled “Student - Educator Ratios,” and renumbered t o Ed 306.14, eff. Dec. 13, shall have 30 students or fewer per educator) (readopted with amendment, have p. 25 25 or fewer students per educator and that third through twelfth grade class size and providing that kindergarten through second grade classes shall rule relied upon by the State. See N.H. Admin. R., Ed 306.17 (2014) (governing Costing an Adequate Education and reflected in the applicable administrative than” those applied in 2008 by the Joint Legislative Oversight Committee on 25

separation of powers ramifications of its immediate payment directive and, injunctive relief). I t failed to properly weigh the distinct and heightened of separation of powers is an appropriate consideration when contemplating of America, Inc. v. State, 128 N.H. 466, 47 7 (1986) (indicating that the doctrine crafting the specific injunctive relief that it ordered. Cf. Private Truck Council court did not accord sufficient weight to separation of powers considerations in equities dictate, we conclude that, under the unique facts of this case, the trial relief like the immediate payment directive should the circumstances and the powers doctrine categorically prohibits the judiciary from awarding injunctive [¶71] Although we have rejected the proposition that the separation of

164 N.H. 93, 96 (2012) (quotation omitted). judgment in calibrating the dec isional scales.” Lawrence v. Philip Morris USA, considers the appropr iate mix of factors, but commits a palpable error of or when an improper factor is accorded significant weight, or when the court discretion when a relevant factor deserving of significant weight is overlooked, (quotation omitted); however, “[a] trial court unsustainably exercises its determining whether to grant injunctive relief and what form it should take, id. N.H. at 742 (quotation omitted). Trial courts have “considerable discretion” in circumstances in each case” and the balance of the equities. Clea veland, 167 award of such equitable relief “necessarily depends upon the factual permit the legislature to address the issues involved in this case”). Rath er, the remand for consideration of remedies and, instead, staying proceedings “to unconstitutional the State’s public education funding scheme, but declining to injunctive relief. See, e.g., Claremont II, 142 N.H. at 476 (holding [¶70] However, not every declaration of a constitutional violation warrants

government cannot be absolute.” (quotation omitted)). Hampshire Constitution recognizes that separation of powers in a workable 161 N.H. 3 86 (“Unlike most state constitutions the language of the New Fees), 144 N.H. 590, 593 (1999); see also N ew H ampshire Health Care Assoc., equitable relief. Claremont School Dist. v. Governor (Costs and Attorney’s education was unconstitutional,” a trial court has jurisdiction to grant declaratory judgment that the system by which the State funded public have previously acknowledged that, in an action for “injunctive relief and a Londonderry I, 154 N.H. at 163; Claremont II, 142 N.H. at 473. Indeed, we provide a judicial remedy in the absence of action by the other branches, see State funded constitutionally adequate education is not hollowed out, and to N.H. 154, 161 (1998), to ensure that the fundamental constitutional right to a Claremont School Dist. v. Governor (Motion for Extensio n of Deadlines), 143 It is the judiciary’s responsibility to “interpret the State Constitution,” Separation of Powers Clause acts as a complete bar to such a judicial remedy. We reject this argument to the extent that it relies on the premise that the of appropriation or the Governor’s authority over expenditures of public funds. violates the separation of powers doctrine by usurping the legislature’s power [¶69] The State asserts that we must reverse this directive because it p. 26 26

invitation to determine whether definition of adequate education was facially Claremont (Motion for Extension of Deadlines), 143 N.H. a t 160 (declining 192 - 93. We deferred to the legislature over the next decade. See, e.g., expressed confidence in their fulfillment of that task. Claremont I, 138 N.H. at adequate education is a task for the legislative and executive branches and education. In Claremont I, we made clear that defining a constitutionally litigation regarding, for example, the definition of a constitutionally adequate [¶74] This situation stands in contrast to the history of school funding

198:40 - a. no occasion to address the constitutionality of either RSA 193 - E:2 - a or RSA file this lawsuit until nearly ten years later. During that time, this court had law became effective in July 2009. Laws 2008, 173:18. The plaintiffs did not categories. Compare Laws 2008, 173:5, with RSA 198:40 - a (Supp. 2024). That pupil and additional differentiated aid per pupil for students falling into certain for an adequate education by providing an amount of base adequacy aid per statute at issue here: it set forth the annual cost of providing the opportunity :5. That version of RSA 198:40 - a contained the same essential features as the the cost of the opportunity for an adequate education. See Laws 2008, 173:1, following year, the legislature repealed and reenacted RSA 198:40 - a to set forth opportunity for an adequate education. See Laws 2007, 270:1 -:2. The in Londonderry I, the legislature enacted RSA 193 - E:2 - a, defining the adequate education as defined in RSA 193 - E:2 - a. Within a year of our decision constitutionality of RSA 198:40 - a, II(a), which funds the opportunity for an into account the history of the narrow legal issue presented by this appeal: the history of school funding litigation broadly as a relevant factor, it failed to take school funding litigation. Although the trial court properly considered the implications of its order must be considered in the context of the history of [¶73] As recognized by the trial court, the separation of powers

the responsible party to “take action” (quotation omitted)). which preserves the status quo, with a mandatory injunction, which requires 571 F.3d 873, 878 - 79 (9th Cir. 2009) (comparing a prohibitory injunction, executive branches. See Marlyn Nu traceuticals v. Mucos Pharma GmbH & Co., annually — directly implicates the essential powers of the legislative and requiring, by the State’s calculation, the expenditure of over $500 million N.H. at 475. T he immediate payment directive — a mandatory injunction “determine the proper way to finance its implementation.” Claremont II, 142 and executive branches — not ours — to “establish educational policy” and Further, in the school funding realm, it is the responsibility of the legislative appropriation. See New Hampshire Health Care Assoc., 161 N.H. at 386 - 87. which the Governor then has the authority to expend in accord with that [¶72] It is the province of the legislature to appropriate public funds,

absence of prior litigation on the narrow legal issue presented in this case. relatedly, it failed to consider separation of powers concerns in relation to the p. 27 27

adversary process and increases the possibility that we will err.”). 490 (2017) (Bassett, J., dissenting) (“Deciding issues that have not been briefed undermines our raised or briefed on appeal by the State or by the plaintiffs. See Hodges v. Johnson, 170 N.H. 470, the issue of whether the trial court erred in regard to irreparable harm because the issue was not behalf of — or any cla im of harm to — children in public schools. However, I decline to address up for the State funding shortfall”; the complaint did not allege any constitutional deprivation on alleged harm to local taxpayers occasioned by the need to “raise local property taxes . . . to make New Hampshire would suffer irreparable harm. I observe that, i n their complaint, the plaintiffs that, in the absence of the immediate payment directive, the children attending public schools in Justices Countway and Donovan are of the opinion that the trial court erred when it concluded 8

Claremont (Costs and Attorney’s Fees), 144 N.H. at 598. with respect to all the issues for which they seek reimbursement. See trial court should consider whether the plaintiffs are entitled to reasonable fees the reversal of the trial court’s immediate payment directive, on remand, the determined the amount of the plaintiffs’ reasonable attorney’s fees. In light of however, unclear from the record before us whether the trial court has already affirmance of the trial court’s merits ruling, we reject this argument. It is, merits, it also erred in awarding attorney’s fees to the plaintiffs. Given our award; rather, it asserts that, because the trial court erred in its ruling on the the substantial benefit theory. The State does not challenge this basis for the granted the plaintiffs’ request for an award of reasonable attorney’s fees under [¶76] Finally, we address the issue of attorney’s fees. The trial court

exercised its discretion. See Lawrence, 164 N.H. at 96. 8 the narrow legal issue presented, and the court thereby unsustainably weight to separation of powers concerns viewed in the context of the history of directive for immediate payment, the trial court failed to accord sufficient issue now before us. In sum, we conclude that, in imposing the extraordinary “absence of action by other branches,” id. at 163, with respect to the specific Accordingly, under these circumstances, we cannot say that there has been an cost of the opportunity for an adequate education as defined in RSA 193 - E:2 - a. level of funding provided under RSA 198:40 - a, II(a) is insufficient to cover the [¶75] By contrast, this is the first time that our court will have held that a

following fiscal year. See Londonderry I, 154 N.H. at 156 - 57, 160 - 63. expectation that the legislature would fulfill its responsibility by the end of the RSA 193 - E:2 standing alone failed to do so, we retained jurisdiction with the define a constitutionally adequate education with specificity, and holding that emphasized the responsibility of the legislative and executive branches to incomplete). I n Londonderry I, after reviewing our prior decisions in which we unconstitutional because State conceded its work on that task was p. 28 28

concurred in Parts I, II(A), III, and IV but dissented from Part II(B). J., retired superior court justice, both specially assigned under RSA 490:3, II, dissented; NADEAU, J., retired superior court chief justice, and ABRAMSON, COUNTWAY and DONOVAN, JJ., concurred in Part II(B) but otherwise

Hampshire receive a State funded constitutionally adequate education. expeditiously to ensure that all the chil dren in public schools in New Constitution”). We urge the legislative and executive branches to act to guarantee adequate funding in a manner that does not violate the State legislature and the Governor will act expeditiously to fulfill the State’s duty . . . inexcusable.”); Claremont II, 142 N.H. at 477 (expressing confidence that “the extraordinary circumstances, delay in achieving a constitutional system is Claremont (Motion for Extension of Deadlines), 143 N.H. at 158 (“Absent will fulfill their duty to provide constitutionally adequate funding. See (quotation omitted)). We anticipate that the legislative and executive branches Council, 114 N.H. 541, 544 (1974) (“When the law is settled it will be obeyed.” Cooper v. Aaron, 358 U.S. 1, 7 (1958)); see also Brouillard v. Governor and Claremont (Motion for Extension of Deadlines), 143 N.H. at 158 (quoting those branches are “‘duty bound to devote every effort’” to its resolution. then has the authority to expend in accord with that appropriation). Indeed, province of the legislature to appropriate public funds, which the Governor Hampshire Health Care Assoc., 161 N.H. at 386 - 87 (explaining that it is the remedy the constitutional deficiency that we have identified. See New [¶78] It is now incumbent upon the legislative and executive branches to

$7,356.01 per pupil pending further legislative action. extent that it directed the State to immediately pay base adequacy aid of A majority of this court, however, reverse s the trial court’s injunction to the base adequacy aid, and its award of reasonable attorney’s fees to the plaintiffs. unconstitutional, its determination of a conservative minimum threshold for admissibility rulings, its declaration that RSA 198:40 - a, II(a) is facially adequacy it must pay for.”). We therefore affirm the trial court’s expert N.H. at 162 (“Whatever the State identifies as comprising constitutional education to every educable child.” (emphasis omitted)); Londonderry I, 154 sufficient funds for each school district to furnish a constitutionally adequate Hampshire Constitution imposes solely upon the Stat e the obligation to provide such funding. See Opinion of the Justices, 145 N.H. at 477 - 78 (“[T]he New 193 - E:2 - a. As we have repeatedly stated, it is the State’s obligation to provide opportunity for a constitutiona lly adequate public education as defined in RSA does not allocate sufficient funding to cover the cost of providing students the RSA 198:40 - a, II(a) does not pass constitutional muster. RSA 198:40 - a, II(a) [¶77] In summary, the record supports the trial court’s conclusion that

demonstrate that we resolved the legal issue now before us. their own claim, see ConVal I, 174 N.H. at 159, is not sufficient on its own to The fact that, in ConVal I, this court adopted the plaintiffs’ characterization of decided when the case was previously before the court” (quotation omitted)). not apply “where the issue before the court was not fully briefed and squarely 133 N.H. 451, 454 - 55 (1990) (explaining that the law of the case doctrine does squarely raised and addressed. See id. at 161 - 6 8; see also Taylor v. Nutting, our decision in the prior appeal do not support that this specific legal issue was constitutionality of RSA 198:40 - a, II(a) independently. However, the record and v. State of N.H., 174 N.H. 154 (2021) (ConVal I), that they could challenge the determined in the prior appeal in this matter, see Contoocook Valley Sch. Dist. [¶81] As a preliminary issue, the plaintiffs assert that this court already

of the statute as a whole. plain language of RSA 198:40 - a require an examination of the constitutionality questions, our well - established principles of statutory interpretation, and the Even setting that conce rn aside, our standard of review on constitutional Constitution in all, or virtually all, of its applications.” (quotation omitted)). of a legislative judgment, an assertion that the challenged statute violates the McSweeney, 166 N.H. 176, 179 (2014) (“A facial challenge is a head - on attack formula like that in RSA 198:40 - a can follow logically. See Huckins v. question whether a facial challenge to a single provision in a multipart funding funds the opportunity for an adequate education — RSA 198:40 - a. We constitutional challenge is limited t o one subparagraph of the statute that required by Part II, Article 83, of the New Hampshire Constitution,” their has failed to meet its obligation to “fully fund an adequate education as [¶80] Notwithstanding the plaintiffs’ overarching allegation that the State

respectfully dissent from the remainder of the lead opinion. facially unconstitutional and its conservative minimum threshold ruling, we Because we would reverse the trial court’s ruling that RSA 198:40 - a, II(a) is must exceed, thereby invading the legislature’s policy - making function. established a conservative minimum threshold amount that base adequacy aid challenge to only one subpar agraph of RSA 198:40 - a (Supp. 2024); and (2) when it: (1) allowed the plaintiffs to prevail upon their facial c onstitutional threshold amount for base adequacy aid. We believe that the trial court erred or the trial court’s injunctive relief determination of the conservative minimum the lead opinion’s view as to the merits of the plaintiffs’ constitutional challenge additional legal basis supporting that conclusion. However, we do not share increase base adequacy aid immediately — and believe that there is an II(B) of the lead opinion — that the trial court erred by directing the State to [¶79] We agree with the reasoning and the conclusion reflected in P art

otherwise dissenting. C OUNTWAY and DONOVAN, JJ., jointly concurring in Part II(B) but p. 30 30

education, nor does it purport to fund adequacy solely through that provision. alone — represents the total cost of offering the opportunity for an adequate language indicates that the amount set out in RSA 198:40 - a, II(a) — standing constitutes the cost of an adequate education. Nothing in the statutory of the amounts listed in subparagraphs (a) through (d) of paragraph II [¶84] In no uncertain terms, the emphasized language states that the sum

RSA 198:40 - a (emphases added).

the ADMR of pupils who reside in that municipality. the cost of an adequate education for each municipality based on cost of an adequate education. The department shall determine III. The sum total calculated under paragraph II shall be the

determination year. receiving special education services anytime during the (d) An additional $2,100 for each pupil in the ADMR who is plus English language learner anytime during the determination year; (c) An additional $800 for each pupil in the ADMR who is an determination year; plus eligible for a free or reduced price meal anytime during the (b) An additional $2, p. 30 300 for each pupil in the ADMR who is aid as follows: II. (a) A cost of $4,100 per pupil in the ADMR, plus differentiated

accordance with RSA 198:40 - d. department shall adjust the rates specified in this paragraph in RSA 193 - E:2 - a shall be as specified in paragraph II. The providing the opportunity for an adequate education as defined in I. For the biennium beginning July 1, 2023, the annual cost of

statute provides: comprise the funding for the opportunity for an adequate education. The legislature intended that base adequacy aid and differentiated aid together [¶83] Applying these principles to RSA 198:40 - a demonstrates that the

721 (2013) (emphasis added). words of the statute considered as a whole.” Petition of Carrier, 165 N.H. 719, interpretation and consider the intent of the legislatu re “as expressed in the constitutional construction, we apply our traditional principles of statutory N.H. 69, 77 - 78 (1983). To determine whether a statute is susceptible to a susceptible to a construction rendering it constitutional.” White v. Lee, 124 161. Also, we will not construe a statute as unconstitutional “where it is and we “will not declare it invalid except upon inescapable grounds.” Id. at [¶82] Turning to the merits, we presume a legislative act is constitutional, p. 31 31

improperly invaded the legislature’s policy - making function. We agree with the conservative minimum threshold and its fact - finding in support of that ruling [¶89] Furthermore, the trial court’s injunctive relief determination of the

conflict between RSA 198:40 - a and Part II, Article 83 of the State Constitution. aid funding and costs a re properly considered, there is a clear and substantial delivering differentiated services, we cannot conclude that once differentiated and rulings about the amount of differentiated aid provided and the cost of its analysis of the central constitutional question. In the absence of findings [¶88] The trial court’s erroneous focus on base adequacy aid alone tainted

have examined all the funding provided in paragraph II. funding of the opportunity for an adequate educati on, the trial court should of the funding provided therein. Thus, to assess the sufficiency of the State’s contrary to the plain language of the statute and illogical to disregard a portion a for any educational purpose. See RSA 198:40 - a, :48. It is therefore both practice, school districts can utilize funds distributed pursuant to RSA 198:40 amounts in paragraph II constitutes the cost of an adequate education, and, in [¶87] In summary, RSA 198:40 - a, III provides that the sum of the

and deploy those funds. See RSA 198:48. 2024). It is then up to each school district to determine how best to allocate district. See RSA 198:40 - a; RSA 198:41, I (Supp. 2024); RSA 198:42, II (Supp. which is, in turn, used to determine the State’s total distribution to each school formula for calculating the cost of an adequate education in each municipalit y, how school districts allocate resources; rather, the statute establishes a are “used for education”). The purpose of RSA 198:40 - a is not to micromanage for their students” provided that funds disbursed fo r constitutional adequacy districts may choose to spend money in varying ways to provide an education Financing System), 145 N.H. 474, 478 (2000) (observing that “local school in public education . . . .”); Opinion of the Justices (Reformed Public School 475 (1997) (Claremont II) (“We recognize that local control plays a valuable role of education spending. See Claremont School Dist. v. Governor, 142 N.H. 462, [¶86] This reading of the statute recognizes the importance of local control

how the municipal ities decide to spend the distributions.” RSA 198:48 (2008). statutory scheme explicitly provides that funding is distributed “independent of differentiated aid); Laws 2016, 8:13, I (repealing RSA 198:40 - b). Instead, the Laws 2008, 173:6 (repealing and reenacting RSA 198:40 - b to govern the use of differentiated aid be restricted to certain purposes, it knew how to do so. See earmarking of funds. See id. Had the legislature intended that the use of students. However, the plain language of the statute requires no such meeting the eligibility criteria, those monie s must be used only to serve eligible under subparagraphs (b) through (d) based upon the number of students opinion, rests on the flawed assumption that, because funds are allocated [¶85] The trial court’s construction of the statute, adopted by the lead p. 32 32

added). Constitution. Contoocook Valley Sch. Dist. v. State of N.H., 174 N.H. 154, 161 (2021) (emphasis constitutes “a clear and substantial conflict” between RSA 198:40 - a and Part II, Article 83 of State statutory base adequacy aid is only $358 per pupil. We are not convinced that this difference is excluded, the difference between the trial court’s de claratory judgment calculation and the trial court’s declaratory judgment ruling. If, as just one example, the per pupil cost of nurses This judicial overstepping not only raises separation of powers concerns, but it also undermines 9

when one branch usurps an essential power of another.” (quotation omitted)). 9 (2011) (“[T]he New Hampshire Separation of Powers Clause is violated only policy”); New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 386 475 (acknowledging that “we were not appointed to establish educational choices. See RSA 193 - E:2 - a, IV(a) (2018); see also Claremont II, 142 N.H. at student - teacher ratios. It is not the judiciary’s role to second guess such policy renumbered to Ed 306.14, eff. Dec. 13, 2024), the trial court applied its own (readopted with amendment, retitled “Student - Educator Ratios,” and reflected in the applicable regulation, see N.H. Admin. R., Ed 306.17 (2014) province of the legislature. For example, instead of applying the class sizes conservative minimum threshold that also intruded upon the policy - making [¶91] Moreover, the trial court made factual findings in support of its

be subject to the control or supervision of the other.”). judiciary are coordinate departments of the state government; . . . neither shall Sherburne v. Portsmouth, 72 N.H. 539, 541 (1904) (“The legislative and the it had no power to interfere with proposed legislative action”); see also p. 32 328, 330 (1969) (holding that the trial court “properly denied the injunction as subjects the legislature to judicial supervision. See Piper v. Meredith, 109 N.H. courts can swiftly measure future legislative action.” This ruling improperly conservative minimum threshold to serve as a “minimum guideline[] by which separation of powers principles. As the trial court explained, it intended the aid funding must exceed,” the trial court violated our well - established determination of a “conservative minimum threshold . . . which base adequacy [¶90] The trial court, however, went too far. In its injunctive relief

teachers and technology. See ConVal I, 174 N.H. at 166 - 67. teacher professional development in the statutory learning areas — like determine the components related to instruction, assessment, materials, and end”). As contemplated by ConVal I, some fact - finding was required to obligations to fund the cost of a constitutionally adequate education begin and definition of constitutional adequacy would delineate “where the State’s Dist. v. State, 154 N.H. 153, 161 (2006) (Londonderry I) (explaining that development related to the statutory learning areas. See Londonderry Sch. pay for instruction, as sessment, materials, and teacher professional provide the controlling law, and that, through that law, the State has agreed to the minimum standards for public school approval for each learning area State that the plain language of RSA 193 - E:2 - a and the regulations pertinent to p. 33 33

payment directive and we dissent from the remainder of the lead opinion. conclusion in P art II(B) that the trial court erred by issuing the immediate [¶95] For the foregoing reasons, we concur with the lead opinion’s

Smith, 138 N.H. at 554. of irreparable harm, the trial court’s payment directive cannot stand. See standard of review for issuance of injunctions). Absent the immediate danger of Atkinson v. Malborn Realty Trust, 164 N.H. 62, 66 (2012) (setting forth our an erroneous legal conclusion and reversing permanent injunctive relief); Town court’s finding of irreparable harm could not stand because it was premised on to an adequate education. See Smith, 138 N.H. at 554 (holding that trial school children would suffer the irreparable harm of a deprivation of their right that, in the absence of its immediate payment directive, New Hampshire public [¶94] Accordingly, we conclude that the trial court erred in determining

pupil and the average per pupil expenditure was over $19,000. the 2021 - 2022 school year, no school district spent less than $14,000 per record reflects that all school districts are spending much more than that: in pupil are necessary to provide the opportunity for an adequate education. The plaintiffs’ own experts opined that e xpenditures of approximately $10,000 per children are being deprived of the opportunity for an adequate education. The misplaced. The record does not support that New Hampshire’s public school [¶93] The trial court’s reliance on this purported irreparable harm is

for us to decide.”). 88 (2018) (“The interpretation of a trial court order presents a question of law constitutionally adequate public education.” See State v. Surrell, 171 N.H. 82, school children is permanently deprived of the fundamental right to a irreparable harm that “with each passing school year, another class of public immediate payment directive as predicated upon the immediate danger of Psychologists, 138 N.H. 548, 554 (1994). We construe the tr ial court’s the immediate danger of irreparable harm. See Smith v. N.H. Bd. of of irreparable harm. A prerequisite to an award of injunctive relief is proof of there is an additional reason for reversing: the absence of a supportable finding trial court improperly weighed separation of powers considerations, we believe conclusion that the immediate payment directive must be reversed because the [¶92] Finally, although we agree with the lead opinion’s analysis and p. 34 34

that the $4,100 per pupil statutory amount of base adequacy aid was “woefully [¶99] Nonetheless, after considering the overwhelming evidence showing

policy decisions.” (Quotation omitted.) responsibilities of the political branches and embroil the courts in weighty reasoned that such a finding “would infringe the constitutionally committed necessary to provide for base adequacy.” (Quotation omitted.) It properly to make “a judicial determination of the exact per - pupil amount of funding unconstitutionality of RSA 198:40 - a, II(a). Ultimately, the trial court declined additional relief was warranted beyond a declaratory judgment regarding the insufficient. Once it made this finding, the trial court considered whether any fixed by RSA 198:40 - a, II(a) at just $4,100 per pu pil, was constitutionally well - reasoned decision that the 2023 level of base adequacy aid, which was evidence presented at trial,” the trial court rightfully declared in a 56 - page, containing thousands of pages o f information. After “carefully consider[ing] the witnesses, the majority of whom were experts, and more than 750 exhibits week bench trial in this matter. The trial record was extensive. There were 27 [¶98] After years of pre - trial litigation, the trial court conducted a three -

what the trial court did in this case. and when proven, it must provide an appropriate remedy. This is precisely this constitutional duty for decades, the judiciary must adjudicate the claim, 472 (1997) (Claremont II). When it is alleged that th e legislature has ignored placed on the legislature.” Claremont School Dist. v. Governor, 142 N.H. 462, 83 is one of only two places in the constitution where a duty is affirmatively “education is deemed so essential to the v iability of the State that part II, article seminaries and public schools.” N.H. CONST. pt. II, art. 83. In fact, legislature “to cherish the interest of literature and the sciences, and all [¶97] Since 1784, our constitution has imposed an explicit duty on the

Part II (B) of the lead opinion. payment directive. Accordingly, we respectfully dissen t from that portion of disagree, however, with the lead opinion’s reversal of the trial court’s immediate act as a “complete bar” to the trial court’s immediate payment directive. We threshold, and the conclusion that the Separation of Powers Clause does not fees, the trial court’s calculations in devising a conservative minimum unconstitutional, the trial court’s decision to award the plaintiffs attorney’s testimony, the trial court’s declaration that RSA 198:40 - a, II(a) is facially the affirmance of the trial court’s rulings related to the admissibility of expert [¶96] We agree with almost all aspects of the lead opinion. We concur in

concurring in part and dissenting in part. retired superior court justice, both specially assigned under RSA 490:3, jointly NADEAU, J., retired superior court chief justice, and ABRAMSON, J., p. 35 35

presented at trial, the Court cannot endorse the State’s request to this reality, and given the overwhelming evidence the plaintiffs right to a constitutionally adequate public education. In light of public school children is permanently deprived of the fundamental the reality is that with each passing school year, another class of here ma y seem like a simple matter of dollars and cents to some, conclusion, the Court observes that although the issues implicated inadequate, and thus, unconstitutional. In reaching this at the $4,100 level plaintiffs have proven to be woefully [I]t would be inappropriate to continue funding base adequacy aid

request, the trial court reasoned that: full legislative cycle following the resolution of any appeal. In denying that [¶101] The State also moved to stay the effective date of the IPD for one

The lead opinion labels this relief as an immediate payment directive (IPD). funds to provide a modicum of relief for the proven constitutional violation. the trial court clarified that its “injunction” was actually a directive to spend needed to be immediately paid “under the existing funding model.” In essence, to the $7, p. 35 356.01 [CMT]” as established in its merits order and that this amount directing “the State to make base adequacy aid payments in an amount equal of injunctive relief was warrant ed. The trial court explained that it was on this motion, the trial court recognized that “some clarification” of its award aspects of the merits order, including the award of injunctive relief. In ruling [¶100] The State subsequently moved for reconsideration of certain

must exceed.” Court has established a [CMT] of $7, p. 35 356.01 which base adequacy aid funding granted in part “[t]he plaintiffs’ request for injunctive relief . . . insofar as the insufficient.” Once it made these findings in its merits order, th e trial court providing, even though that amount would still be “constitutionally the absolute minimum amount of base adequacy aid that the State should be court c oncluded that, under any view of the evidence, $7,356.01 per pupil was reached that figure based on “conservative calculations.” In essence, the trial observed that “the true cost is likely much higher than that,” and noted that it more than the current funding level of $4,100.” In so ruling, the trial court determined that the CMT was $7,356.01 per pupil, which was “over $3,200 on its in - depth review of the exhaustive evidence, the trial court then protect the constitutional right to an adequate state funded education. Based the legislature’s prerogative to set policy and the judiciary’s obligation to trial court reasoned that this approach struck the appropriate balance between indisputably part of the State’s base adequacy aid funding obligations.” The (CMT) for state ed ucation funding that would cover “those cost - drivers that are court determined that it should “establish a conservative minimum threshold” to grant the plaintiffs a measure of additional relief.” Specifically, the trial inadequate,” the trial court found that it was “both necessary and appropriate p. 36 36

without any discussion of injunction criteria); see also Claremont Sch ool Dist. districts” as a “remedial relief” for violation of constitutional right to education (N.J. 1997) (ordering state to “provide increased funding to the twenty - eight to this type of re medy. See, e.g., Abbott by Abbott v. Burke, 693 A.2d 417, 4 5 6 do not believe that the traditional injunction criteria necessarily or neatly apply Londonderry Sch. Dist. v. State, 154 N.H. 153, 163 (2006) (Londonderry I), we remedy” to “ensure that constitutional rights not be hollowed out,” traditional injunction criteria). Where, as here, the IPD serves as the “j udicial was “a far cry” from meeting constitutional mandate and making no mention of to fund the constitutional right to counsel after finding that existing scheme 764, 769, 771 (1978) (directing legislature to make “adequate appropriations” treated or reviewed as a traditional injunction. Cf. Smith v. State, 118 N.H. viewed in conjunction with the trial court’s declaratory judgment, should be IPD as an “injunction,” we are not convinced that a directive of this type, when employ in reviewing the IPD. Although the trial court nominally labeled the addressed in their briefs the appropriate standard of review for this court to [¶103] We begin by noting that neither the State nor the plaintiffs have

A. Standard of Review

reason. State contends that the IPD is unconstitutional and must be vacated for that pending further legislative action, has never gone into effect. On appeal, the to pay school districts an additional $3,256.01 per pupil in base adequacy aid granted. Accordingly, the trial court’s IPD, which essentially requires the State IPD pending appeal, the State sought similar relief from this court, which was [¶102] This appeal followed. Although the trial court declined to stay the

(Quotation, citations, and brackets omitted.)

. . . . an appropriate balance between the parti es’ competing interests presented here, the Court concludes that this compromise strikes constitutional system. Yet, under the extraordinary circumstances the [CMT] level will still result in a regrettable delay in achieving a insufficient. As a result, temporarily funding base adeq uacy aid at plaintiffs have proven that this funding level is also constitutionally plaintiffs requested and, as explained in the [merits order], the The Court notes that this funding level is far less than the

. . . .

pending appeal. perpetuate the egregious underfunding of public education p. 37 37

throughout our opinion as they concur with the lead opinion regarding the reversal of the IPD. We will refer to the joint opinion of Justice Countway and Justice Donovan as the “concurrence” 10

speaking, “each branch is prohibited by the Separation of Powers Clause from fabric.” Opinion of the Justices, 102 N.H. 195, 196 (1959). Generally judicial branches of the government is an important part of [our] constitutional [¶106] “The separation of powers between the legislative, executive and

separation of powers challenge to the IPD as a matter of constitutional law. N.H. 319, 324 (2012) (same). Accordingly, we begin by analyzing the State’s State Constitution . . . is a question of law”); Petition of S. N.H. Med. Ctr., 164 (whether particular acti on “violates the Separation of Powers Clause of the Constitution. See, e.g., State v. Exxon Mobil Corp., 168 N.H. 211, 222 (2015) remedy because it violates the Separation of Powers Clause of the State “an error of law” challenge to the IPD, i.e., that the IPD is an unconstitutional as “that power lies with the Legislature.” We interpret this argument as raising that the “[j]udiciary does not have the authority to appropriate state revenues” enormous, unconstitutional appropriation of taxpayer dollars” and maintains [¶105] In challenging the IPD, the State argues that it “constitutes an

B. Analysis

or cl early erroneous findings of fact.” Id. an injunction absent an error of law, an unsustainable exercise of discretion, court will “uphold the decision of the trial court with regard to the issuance of litigants in the protection of their legal rights.” Id. (ellipses omitted). This considerable discretion in determining whether equity should intervene to aid “[B]ecause the division line between equity and law is not precise[,] courts have depends upon the factual circumstances in each case.” Id. (quotation omitted). N.H. 731, 742 (2015). “The decision to grant equitab le relief necessarily facts and established principles of equity.” City of Keene v. Cleaveland, 167 trial court’s sound discretion to grant an injunction after consideration of the N.H. 314, 316 (1982). Assuming these requirements are met, “[i]t is within the there is no adequate remedy at law.” Murphy v. McQuade Realty, Inc., 122 immediate danger of irreparable harm to the party seeking injunctive relief, and [¶104] Generally, “[a]n injunction should not issue unless there is an

correct. colleagues’ treatment and review of the IPD as a traditional inj unction is analysis applies, for the purposes of our discussion, we will assume that our injunction. Although we are not persuaded that a traditional injunction lead opinion and the concurrence, however, treat the IPD as a traditional 10 principles ’” (quoting Brown v. Bd. of Educ., 349 U.S. 294, 300 (1955)). The decrees” in school funding cases, “the courts will be guided by equitable (Horton, J., dissenting) (suggesting that, “‘ [i]n fashioning and effectuating the v. Governor (Statewide Property Tax Phase - In), 144 N.H. 210, 220 (1999) p. 38 38

768, and that “the judiciary has a responsibi lity to ensure that constitutional court is the final arbiter of State constitutional disputes,” Smith, 118 N.H. at involve competing principles. On the one hand, “[i]t is long settled that this judicial restraint and dis cretion,” McCleary, 269 P.3d at 248, because they when litigants prove that it is not being honored. Such cases “test the limits of right to a state funded adequate education presents challenges for the judiciary [¶109] As this case illustrates, the unique nature of the constitutional

“affirmative[]” duty with respect to education). also Claremont II, 142 N.H. at 472 (recognizing that the legislature has an constitutional rights do not restrain government action; they require it.”); see affirmative steps to meet its constitutional obligations. See id. (“Positive adjudicate, the right to an adequate education requires the state to take by the state. Accordingly, unlike most constitutional rights the courts or affirmative constitutional right — the right to an adequate education paid for of charges. School funding cases are different because they rest on a positive the suppression of evidence, the reversal of convictions, or even the dismissal cases, the judiciary vindicates the constitutional rights of our citizens throug h enjoining the enforcement of statutes or governmental actions. In criminal civil cases, constitutional rights are routinely recognized and enforced by rights can be enforced by traditional, well - established judicial remedies. In enumeration of negative rights to set the boundaries.” Id. These types of police the outer limits of government power, relying on the constitutional 248 (Wash. 2012). “With respect to those rights, the role of the court is to negative restrictions on government action.” McCleary v. State, 269 P.3d 227, Most of the constitutional rights guaranteed by our constitution “are framed as [¶108] This case, however, involves a unique type of constitutional right.

Ass’n, 175 N.H. 167, 178 - 79 (2022). constitutional authority to appropriate public funds.” Appeal of N.H. Troopers declined to order relief in other contexts that w ould invade “the legislature’s relief raises separation of powers questions. Indeed, this court has rightly not blind to the extraordinary nature of such an order or the fact that such consistent with the terms of the injunction. Similar to the trial court, we are by the legislature or an order requiring the legislature to appropriate the funds directive to the executive branch to spend funds that were never appropriated [¶107] We acknowledge that the trial court’s IPD essentially amounts to a

at p. 38 387. for such purposes, as they may have been app ropriated by the legislature.” Id. system, the “executive branch may expend public funds only to the extent, and Ass oc. v. Governor, 161 N.H. 378, 386 (2011). Thus, under our constitutional includes “the power to .. . make appropriations.” New Hampshire Health Care Constitution vests the legislature with the ‘supreme legislative power,’” which 143 N.H. 128, 134 (1998). Relevant here, “Part II, Article 2 of the State encroaching on the powers and functions of another branch.” Petition of Mone, p. 39 39

type of remedy ordered by the trial court as a matter of constitutional law succinctly stated as follows: the Separation of Powers Clause precludes the [¶112] Based on the foregoing, we believe the pertinent law can be

essential.” Londonderry I, 154 N.H. at 163. action by other branches, a judicial remedy is not only appropriate but recognized that principle in Londonderry I, stating that “in the absence of Hoke C ounty Bd. of Educ., 879 S.E.2d at 230 (quotation omitted). This court specific remedy and instructing the recalcitrant state actors to implement it.” do what is reasonably necessary to restore constitutio nal rights by imposing a afforded “due deference,” the court is obligated to “invoke its inherent power to unwilling or unable to remedy the [constitutional] deficiency” after having been must have and does have “its limits.” Id. That is, if the legislature “proves the constitutional rights of our citizens, the court’s deference to the legislature to issue such relief. Rather, because of our own constitutional duty to protect [¶111] This court, however, has never foreclosed the judiciary’s authority

to refrain today.”). policy. For almost thirteen years we have refrained from doing so and continue any court not take over the legislature’s role in shaping educational and fiscal Londonderry I, 154 N.H. at 163 (“We agree with [the] concern that this court or failed to meet its constitutional obligation to fund an adequate education. See appropriate funds, even where it h as been established that the legislature funding case that would encroach on the legislature’s traditional authority to prevailed. So far, this court has declined to impose any remedies in a school an adequate e ducation in this state, that deference and hesitancy has always decades of litigation concerning school funding and the constitutional right to delegated provinces of the other branches of government. In over three school funding cases because such orders implicate the constitutionally been hesitant to issue remedial orders that direct the Stat e to spend more in public schools.” N.H. CONST. pt. II, art. 83. Indeed, this court has rightfully cherish the interest of literature and the sciences, and all seminaries and affording the legislature wide latitude to carry out its constitutional duty “to importance of deferring to the legislature in the school funding arena and our respect for the separation of powers, this court has recognized the [¶110] Because of that express delegation of power to the legislature and

that purpose.” O’Neil v. Thomson, 114 N.H. 155, 160 (1974). for the operation of the government of the S tate and to make appropriations for the legislature with “the power to make laws,” “to assess taxes to raise revenue v. State, 879 S.E.2d 193, 230 (N.C. 2022). On the other, our constitution vests and coordinate branches of our state government.” Hoke C ounty Bd. of Educ. violation of constitutional rights from its very status as one of three separate judicial branch derives inherent and inalienable authority to address the rights not be hollowed out,” Londonderry I, 154 N.H. at 163. Indeed, “the p. 40 -

the legislature fails to do so in a timely and meaningful manner. the judiciary to employ non p. 40 - traditional remedies to protect important constitutional rights when that school funding cases are on the same footing as the redistricting cases and likewise call for Petition of Jud icial Conduct Comm., 151 N.H. 123, 127 (2004) (quotation omitted). We believe also acknowledge “that separation of powers in a workable government cannot be absolute.” than “judicial non - intervention” for separation of powers concerns, Norelli, 175 N.H. at 200. They the people’s constitutional right[s],” Petition of Below, 151 N.H. at 136, can be “more important” We find these cases supportive because they illustrate that the judiciary’s duty “to protect act.” Burling, 148 N.H. at 144. duty to devise a constitutionally valid reapportionment plan” when “the legislature has failed to clearly committed to the legislature by our constitution, it nonetheless becomes “the judiciary’s one person/one vote,” Petition of Below, 151 N.H. at 136. Thus, even though redistricting is legislature, Burling, 148 N.H. at 144, in order “to protect the people’s constitutional right to perform that task, however, this court is “drawn reluctantly into” performing it for the federal census. Petition of Below, 151 N.H. 135, 136, 137 (2004). Should the legislature fail to ensure that “the constitutional imperative of one perso n/one vote” is honored following the exclusive power to draw legislative districts and the obligation to do so every ten years to 186 (2022). Much like the power to appropriate, the constitution vests the legislature with the (2002); Burling v. Speaker of the House, 148 N.H. 143 (2002); Norelli v. Sec’y of State, 175 N.H. cases. See, e.g., Monier v. Gallen, 122 N.H. 474 (1982); Below v. Secretary of State, 148 N.H. 1 traditional remedies. The most analogous situation we can find is the li ne of redistricting decided to act in areas traditionally within the province of the legislature and provided non In reaching this conclusion, we have looked to other circumstances where this court has 11

half of his recommended level.” To us, this demonstrates that the legislature recommendations and instead chose to fund base adequacy aid “at less than education was $9,964. Thus, the legislature seemingly ignored its own expert’s recommendation.” Baker opined that the cost of providing an adequate legislature in 2020 “to analyze school funding issues and pro vide an informed one of the experts who testified, Dr. Bruce Baker, was previously hired by the education” is likely near $10,000 per pupil. In fact, as the trial court noted, the record strongly suggests that the t rue “cost of providing an adequate separation of powers grounds. As the lead opinion observes, the evidence in constitutes the type of meaningful “action” that bars a judicial remedy on [¶114] We do not believe that the mere enactment of RSA 198:40 p. 40 - a, II(a)

constitutional muster. funding provided under RSA 198:40 p. 40 - a, II(a) is insufficient” to pass fact that “this is the first time that our court will have held that [the] level of which sets the amount of base adequacy aid at just $4,100 per p upil, and the Specifically, the lead opinion points to the enactment of RSA 198:40 - a, II(a), opinion agrees with that argument in its separation of powers analysis. 2018,” and therefore “[d]eference . .. should have been the rule.” The lead has “remained in place for a decade without challenge until this lawsuit in State asserts that they do not because “[t]he present education funding regime” [¶113] The question becomes whether those conditions exist here. The

has failed to do so in a meaningful manner. Id. 11 unless the legislature has been afforded a reasonable opportunity to act and p. 41 41

Powers Clause. argument that the IPD is unconstitution al because it violates the Separation of uncooperatively in the past” to its decisions). We therefore reject the State’s increasingly aggressive measures” when the state “has responded J.L. & Soc. Probs. 125, 142 (2007) (explaining that “a court may consider Separation of Powers Doctrine in State Education Funding Suits, p. 41 41 Colum. education. See Joy Chia & Sarah A. Seo, Battle of the Branches: The legislature has never met its constitutional obligation to fully fund an adequate only appropriate but essential” at this time, id., es pecially where, as here, the N.H. at 163, we believe that a judicial remedy beyond declaratory relief “is not that it has failed to do so. Given this “absence of action,” Londonderry I, 154 ample time to enact a constitutional ly sufficient school funding scheme, and conclude, as did the trial court, that the legislature has been given more than that there has been meaningful “action” by the legislature. Instead, we [¶116] For these reasons, we cannot join in the lead opinion’s conclusion

“inexcusable” in 1998, id., it is beyond comprehension today. 30 years have passed since this court made that observation. If the delay was Extension of Deadlines), 143 N.H. 154, 158 (1998) (emphases added). Nearly past twenty - seven years.” Claremont School Dist. v. Governor (Motion for education funding system in this State has been questioned for at least the adequate school funding] is inexcusable” and that “[t]he legality of the 1998, this court observ ed that “delay in achieving a constitutional system [of still has not enacted a constitutionally adequate school funding scheme. In the court’s optimism and deference in this long line of cases, the legislature simply “urge[d] the legislature to act,” Londonderry I, 154 N.H. at 163. Despite constitutionally adequate public education,” Claremont II, 142 N.H. at 477, or Governor will act expeditiously to fulfill the State ’ s duty to provide for a violation, the court has expressed its confidence “that the legislature and the constitutional duty. In many of these cases, after finding a constitutional this court conclusively determined that the legislature has fulfilled its concerning school funding since 1993. As far as we are aware, not once has decades. By our count, there have b een at least eleven cases before this court requirement of a state funded adequate education has not been fully funded for focus on this specific statute fails to consider that the constitutional [¶115] In addition, we find that the State’s and the lead opinion’s narrow

provide a meaningful remedy. legislature such that the judiciary is precluded from exercising its duty to that “woefully” underfunds education shows good faith “action” on beha lf of the recommendations”). In short, we do not find that knowingly enacting a statute education study and then “chose to impugn its design and ignore its (ordering state to increase education funding where legislature commissioned constitutionally adequate. See Montoy v. State, 112 P.3d 923, 940 (Kan. 2005) therefore it should hardly come as a surprise that this figure is not knew or should have known that $4,100 per pupil was far too low, and p. 42 42

“ma terially impaired the [legislature’s] lawmaking function in a manner that date. In its motion for reconsideration, the State again asserted that the IPD filed a motion for reconsideration and a motion to stay or delay its effective observe the separation of powers.” After the trial court issued its IPD, the State injunction remedy would not “comport with this Court’s constitutiona l duty to powers. In its separation of powers memorandum, the State argued that an of fact and conclusions of law, and a memorandum of law on separation of second motion for summary judgmen t, a trial memorandum, proposed findings potential remedy in this case. For instance, following remand, the State filed a State had more than ample opportunity to raise any arguments about the [¶120] We begin with our procedural concerns. At the trial court level, the

lead opinion’s reasoning on the merits. believe that this approach is procedurally improper. We also disagree with the “failed to properly weigh” and “consider” the se paration of powers “factor.” We under the unsustainable exercise of discretion standard because the trial court of discretion”). The lead opinion then concludes that the IPD must be reversed injunction will be upheld absent an “error of law” or “an unsustainable exercise exercise of its discretion. See Cleaveland, 167 N.H. at 7 p. 42 42 (explaining that an argument and treats it as a mere “factor” to be considered in the trial court’s [¶119] The lea d opinion, however, recasts the State’s constitutional

the State’s argument and should be the end of the IPD discussion. a majority of the court agrees with that conclusion, we believe that addresses prohibits the judiciary from awarding injunctive relief like the [IPD].” Because “reject[s] the proposition that the separation of powers doctrine categorically constitutional law. Consistent with Londonderry I, the lead opinion rightfully Clause unconditionally bars the judiciary from issuing the IPD as a matter of [¶118] Essentially, the State’s argument is that the Separation of Powers

Clause. reverse the IPD on the basis that such relief violates the Separation of Powers obligations affects the rights of our state’s children. Accor dingly, we would not meaningful remedy when the S tate’s failure to meet its constitutional judiciary’s deference to give way to its fundamental obligation to provide a Londonderry I, 154 N.H. at 163. We believe that the time has come for the branches of government “has its limits” when it comes to school funding. court cautioned 19 years ago that the judiciary’s “[d]eference” to the other gener ations of children who will follow.” Id. In recognition of that fact, this education and future of [New Hampshire’s] public schoolchildren and those reconsideration, 780 N.E.2d 529 (Ohio 2002). It should be “about the proper 1203 (Ohio 2001) (Douglas, J., concurring), opinion vacated on branch should be the dominant force.” DeRolph v. State, 754 N.E.2d 1184, branch of government is stronger, which branch would blink first, or which observing that the focus of school funding litigation should not be “about which [¶117] We close our constitutional separation of powers discussion by p. 43 43

requirement to fund education. funding amount is “woefully inadequate” and an egregious violation of the constitutional The fact that this figure is so high only reinforces the trial court’s conclusion that the current 12

and their counsel to decide cases on issues where the parties had briefing. [We] believe that it is fundamentally unfair to the parties the parties without remanding or providing an opportunity for questions presented and decides a case on issues not discussed by Due process interests are implicated when a court recasts the

been well - articulated: briefed.” In re J.W., 172 N.H. 332, 344 (2019). The reasoning for this rule has “generally reluctant to address issues that the parties have neither raised nor briefed.” State v. Blackmer, 149 N.H. 47, 49 (2003). Accordingly, this court is “confin[ing] [its] review to only those issues that the [appealing party] has fully (Bassett, J., dissenting). Indeed, this court has a longstanding practice of parties did not brief on appeal.” Hodges v. Johnson, 170 N.H. 470, 490 (2017) [¶123] We believe the lead opinion errs “by addressing an [issue] that the

should be reversed under this standard. before the trial court or this court. Yet, the lead opinion finds that the IPD any arguments relating to an unsustainable exercise of discretion were raised filings and the remainder of th e record, we cannot find a single instance where improper balance of the equities. Indeed, based on our review of the State’s and has never been premised on an unsustainable exercise of discretion or an [¶122] As the foregoing establishes, the State’s challenge to the IPD is not

unappropriated and unbudgeted dollars annually.” (Emphases omitted.) 12 spend — without any approval or oversight — more than half - a - billion constitutional structure to issue a mandatory injunction directing ‘the State’ to explain how a single superior court judge is authorized under our challenging the IPD, arguing that the plaintiffs did not attempt in their brie f “to raises the separation of powers doctrine as a matter of constitutional law in court miscalibrated “the decisional scales.” In its reply brief, the State again unsustainable exercise of discretion standard, nor does it arg ue that the trial entire section to the trial court’s injunction, it makes no mention of the Court’s education - funding decisions.” While the State’s brief dedicates an presented” as whether the IPD “violates the separation of powers and this on constitutional grounds. In the State’s opening brief, it frames the “issue [¶121] Similarly, the State’s challenge to the IPD on appeal rests entirely

improperly balanced the equi ties. unsustainable exercise of discretion standard or because the trial court of these filings did the State suggest that the IPD was improper under the violates the separation of powers and is unconstitutional.” At no point in any p. 44 44

Crematory, 155 N.H. 781, 784 (2007) (Bayview). In both Lawrence and Bayview, the issue before Philip Morris USA, 164 N.H. 93, 96 (2012). Lawrence, in turn, adopted it from Petition of Bayview The lead opinion uses the “unsustainable exercise of discretion” formulation from Lawrence v. 13

discretion.” Bianco, P.A. v. Home Ins. Co., 147 N.H. 249, 251 (2001). 13 record fails to disclose an objective basis for a sustainable exercise of the conduct of th e trial judge, but rather is an appellate determination that the a discretionary decision under this standard, however, is not a reflection upon (applying same standard of review to award of equitable relief). “The reversal of 147 N.H. 295, 296 (2001); see, e.g., Brooks v. Allen, 168 N.H. 707, 711 (2016) basis sufficient to sustain the discretionary judgment made.” State v. Lambert, discretion, we are really deciding whether the record establishes an objective determine whether a ruling made by a judge is a proper exercise of judicial Atkinson v. Malborn Realty Tr ust, 164 N.H. 62, 66 (2012). “When we an injunction based on an “unsustainable exercise of discretion.” Town of Westmoreland, 140 N.H. 613, 617 (1996). It follows that this court may reverse appropriate is within the sound discretion of the trial court.” Taber v. Town of with the lead opinion on the merits of that issue. “[W]hether an injunction is case under an unsustainable exercise of discretion standard, we also disagree [¶124] While this procedural concern is reason enough not to decide this

trial court unsustainably exercised its discretion”). unsustainable exercise of discretion where appellant did “not argue that the 174 N.H. 743, 751 (2022) (declining to review trial court’s decision for an defendant could have raised but did not); cf. In the Matter of Akin & Suljevic, “not a sound practice” for an appellate court and its staff to raise issues the also United States v. Wagner, 103 F.3d 551, 552 (7th Cir. 1996) (noting it is grounds that were neither argued nor briefed. Hodge s, 1 70 N.H. at 490; see “believe that it is fundamentally unfair” to decide this important case on possibility that we will err.”). As the dissent concluded in Hodges, we too concurring) (“Addressing issues that have not been fully briefed increases the also Stergiou v. City of Dover, 175 N.H. 315, 327 (2022) (Bassett, J., Hodges, 170 N.H. at 490 - 91 (quotations, citations, and brackets omitted); see

are fair. also increases the parties’ sense that the court’s process and result decisive issue increases the accuracy of the decision. Doing so the premise that allowing the parties to address the court on the fa shion the questions for review. The adversary system is based on the initiative of lawyers, rather than the activism of judges to Our adversary process functions most effectively when we rely on adversary process and increases the possibility that we will err. Deciding issues that have not been briefed undermines our

arguments. no opportunity to introduce evidence or make their best p. 45 45

discretion description outside of that limited context. We therefore do not use it in our analysis. narrow issue. This court has never used the Lawrence / Bayview unsustainable exercise of those cases was specifically tailored to the criteria that the court must consider in deciding that the court concerned class certification. The unsustainable exercise of discretion standard used in

trial court stated: addressing the parties’ post - remand cross - motions for summary judgment, the litigation, including when it crafted the IPD remedy. For instance, in its order concerns were at the forefront of the trial court’s analysis at all stages of this appropriate remedy. Indeed, the record reflects that separation of powers separation of powers issue significant attention and weight in deciding the [¶128] Those issues aside, we believe that the trial court gave the

omitted). evidence,” Voedisch v. Town of Wolfeboro, 136 N.H. 91, 93 (1992) (quotation the [trial court]” so long as the trial court’s injunction “is supported by the Tr ust, 164 N.H. at 68, nor may this court “substitute [its] judgment for that of Moreover, “[o]ur task on appeal is not to reweigh the equitie s,” Malborn Realty proposition that there are various levels of separation of powers concerns. matter, we can find no authority, and the lead opinion cites none, for the the IPD “under the unique facts o f this case.” We disagree. As an initial weight” to the “distinct and heightened separation of powers ramifications” of exercised its discretion in issuing the IPD because it “did not accord sufficient [¶127] The lead opinion concludes that the trial court unsustainably

therefore hard pressed to find any unsustainable exercise of discretion. sustain the discretionary judgment made.” Lambert, 147 N.H. at 296. We are and the IPD. We believe this “r ecord establishes an objective basis sufficient to the trial court “painstakingly crafted” the necessary remedy, including the CMT calculus. Then, after examining these facts and the extensive trial evidence, the trial court also considered “the history of school funding litigation” in its violation of constitutional rights”). Third, as the lead opinion acknowledges, injunction analysis “the presumption of irreparable injury that flows from a harm. See Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (noting in Hampshire’s school - aged children, which is presumed to cause irr eparable resulted in the denial of the fundamental constitutional rights of New court upholds. Second, it determined t hat this “egregious underfunding” has “woefully” inadequate and unconstitutional, a finding which a majority of this conclusion that the current amount of statutory base adequacy aid is issuing the I PD, all of which find support in the record. First, it considered its [¶126] Here, the trial court properly considered a variety of facts before

Polhamus, 110 N.H. 491, 494 (1970). and was required to “balanc[e] the equities” presented by them, Frost v. entitled to “consider a wide range of circumstances,” Taber, 140 N.H. at 617, [¶125] In deciding whether to grant injunctive relief, the trial court was p. 46 46

t he S tate is failing to meet the constitutional requirement to fully fund school year, “no school district spent less than $14,000 per pupil.” Because by Baker and Rizzo - Saunders. The concurrence notes that, in the 2021 - 2022 districts are spending much more” than the $10,000 per pupil recommended irreparable harm to the school - aged children of th is state because “all school traditional standard. The concurrence finds that there has not been any evidence presented supports the issuance of an injunction under the [¶131] Even if this issue had been properly raised, we believe that the

party] has fully briefed.” Blackmer, 149 N.H. at 49. practice of “confin[ing] [its] review to only those issues that the [appealing the parties. Rather, we believe this court should adhere to its longstanding it is fundamentally unfair to decide a case on grounds that are not raised by irreparable harm. For the reasons we stated above, we reiterate our belief that never claimed that the I PD should be reversed due to the perceived absence of the trial court nor in any of the State’s appellate briefs. In fact, the State has concerning irreparable harm is not properly before us. It was neither raised in [¶130] As an initial matter, the issue of the sufficiency of the evidence

reversed on that basis. We disagree. any evidence regarding irreparable harm and therefore the IPD must be irreparable harm.” The concurrence then concludes that the record is devoid of injunctive relief must be predic ated on “proof of the immediate danger of IPD is a form of injunctive relief and cites the requirement that any award of IPD cited in the concurrence. Specifically, the concurrence reasons that the [¶129] Finally, we briefly address the additional basis for reversing the

separation of powers issue. this extensive record, we believe the trial court accorded sufficient weight to the separation of powers concerns and the ramifications its IPD would have. Given remedy. To us, this demonstrate s that the trial court was well aware of why it believes that those concerns do not outweigh the need for a meaningful section dedicated to “Separation of Powers Considerations,” in which it details separations of po wers. Finally, the trial court’s merits order contains an entire trial, the parties filed trial memoranda, each of which extensively discussed the parties that solely addressed the separation of powers issue. Following (Emphasis added.) After it issued this order, the trial court received briefs from

one passed by the Legislature and enacted by the Governor. constitutional authority to ‘pick a number’ and substitute it for the after that: they must convince the Court that it has the 198:40 - a, II(a) is insufficient, they have another mountain to climb prove that the amount of base adequacy aid set forth in RSA much it is under - funded. . . . Accordingly, even if the plaintiffs education. It is quite another to go further and proclaim by how It is one thing to rule that the current statute under - funds p. 47 47

To do so would constitute a complete abdication of our constitutional duty “to constitutional mandate to amply fund education.” McCleary, 269 P.3d at 259. the judiciary can no longer “stand on the sidelines and hope the State meets its perceives that the prospect of meaningful judicial relief is unli kely. Simply put, legislature will not be deterred from maintaining the status quo when it its obligation to fund the constitutional right to an adequate education. The funding cases, the more likely it is that t he legislature will continue to ignore carry out its constitutional duty to provide a meaningful remedy in school legislature to continue to idle. We fear that the longer the judiciary waits to [¶135] We believe that the proper remedy cannot be to allow the

b oth the IPD itself and the amount of aid it required. court’s CMT calculations and its use of the CMT in general, we would affirm constitutionall y adequate public education. Because we agree with the trial legislature’s longstanding failure to meet its duty to fully fund a amount of base adequacy aid is “woefully inadequate” coupled with the necessary in light of the overwhelming evidence establishing that the current the State to spend the bare minimum on education — was not only proper, but [¶134] We conclude that the trial court’s remedy — a directive requiring

C. Conclusion

suffer irreparable harm in the absence of the IPD. concurrence’s contention that New Hampshire public school children will not constitutional right to a state funded education. We theref ore disagree with the school - aged children of this state by virtue of the violation of their fundamental concurrence’s conclusion, there has undoubtedly been irreparable harm to the omitted); see also Jolly, 76 F.3d at 482. Accordingly, contrary to the injury.” Miranda v. Garland, 34 F.4th 338, 365 (4th Cir. 2022) (quotation for even minimal periods of time, unquestionably constitutes irreparable [¶133] It is well - established that the “deprivation of a constitutional right,

requirement of a state funded education has not been met. out some or all of the S tate’s duty, it does not change the fact that the Thus, although local taxpayers may be providing funds th at functionally carry adequate public education.” Claremont II, 142 N.H. at p. 47 473 (emphasis added). the fundamental right at issue is the right to a State funded constitutionally misconstrues the constitutional right at stake. This court has made clear “that providing the funds to adequately educate their children. This reasoning any irreparable harm to the children of this state because local taxpayers are [¶132] In other words, the concurrence believes that there has not been

difference. themselves. This, in turn, requires local taxpayers to foot the bill for the amount of state aid generally must be paid for by the school districts education, however, the difference between the total per pupil cost and the p. 48 48

that holding of the lead opinion. in all of those perils, we cannot join it. We therefore respectfully dissent from the lead opinion’s reversal of the trial court’s grant of injunctive relief will result irreparable harm to the school - aged children of this state. Because we believe education” in this state for the foreseeable future, and that will result in further that vulnerability, that “perpetuate[s] the egregious underfunding of public omitted). We decline to endorse a course of action that exposes the court to Campbell County Sch ool Dist., 32 P.3d 325, 333 (Wyo. 2001) (quotation becoming complicit actors in the deprivation of those rights.” State v. continued violation of constitutional rights makes the courts vulnerable to [¶136] We end by noting that “staying the judicial hand in the face of

N.H. at 163. ensure that constitutional rights not be hollowed out.” Londonderry I, 154