State of New Hampshire

Distribution

• Wendy Leeker, Esq.
• Samuel R.V. Garland, Esq.
• Natalie J. Laflamme, Esq.
• Michael-Anthony Jaoude, Esq.
• Lawrence P. Gagnon, Esq.
• John-Mark Turner, Esq.
• John E. Tobin, Jr., Esq.
• Attorney General
• Anthony J. Galdieri, Esq.
• Andru H. Volinsky, Esq.
• Abbygale Martinen, Esq.
• Aditi Padmanabhan, Esq.
• Alice Tsier, Esq.
• File
• Timothy A. Gudas,
• Clerk
• EXHIBITB
• ST A TE OF NEW HAMPSHIRE
• Superior Court
• Grafton, ss.
• Case No. 215-2022-CV-00167
• Steven Rand and Randvest_, Inc.,
• 120 High land Street
• Plymouth, NH 03264
• Dr. Robert Gabrielli and the
• Gabrielli F'amily Ltd. Partnership,
• 40 Via Tranquilla
• Concord, NH 03301
• Jessica Wheeler Russell and Adam Russell,
• 76 Manor Road
• Concord, NH 03303
• James Lewis,
• 70 Turnberry Lane
• Hopkinton, NH 03229
• John Lunn_,
• 23 Fletcher Road
• Newport, NH 03754
• V.
• The State ofNew Hampshire
• Petitioners,
• c/o Attorney General for the State of NH
• 33 Capitol Street
• Concord, NH 03301,
• Defendant.
• FIRST AMENDED COMPLAINT
• Filed
• File Date: 8/26/2022 11 :32 AM
• Grafton Superior Court
• E-Filecl Document
• Now come the petitioners, by and through their undersigned counsel, and complain
• against the State of New Hampshire as follows:
• I. INTRODUCTION
• l. This is an action in which the petitioners, all of whom own real property in New
• Hampshire and pay local school property taxes to fund kindergarten through twelfth grade public
• education, seek a declaratory ruling that the State of New Hampshire improperly relies upon
• local taxpayers, including Petitioners, to raise the funds necessary to provide students with a
• constitutionally adequate education as required by Part JI, Article 83 of the New Hampshire
• Constitution, because the State's own funding falls far shy of that amount. As a result, the
• funding for a constitutionally adequate public education is largely paid for by taxes that are not
• uniform in rate as required by Part II, Article 5 of the New Hampshire Constitution.
• 2. Petitioners also seek a permanent injunction that requires New Hampshire to
• discontinue its unconstitutional public education funding scheme, and for such other relief as is
• ju!,t and proper.
• II. THE PARTIES
• 3. Petitioner Steven Rand resides in Plymouth, New Hampshire where he owns and
• operates Rand's Hardware, which has been located at 71 Main Street, Plymouth since 1908. Mr.
• Rand resides at 120 Highland Street, in Plymouth, New Hampshire. Mr. Rand directly, or
• through Randvest, Inc., owns his home, the separate property where he operates his hardware
• store, and rental properties. Mr. Rand, or Randvest, as indicated, pays local property taxes to the
• Town of Plymouth, New Hampshire for town taxes and for the Statewide Education Property
• Tax ("SWEPT'), which is discussed below. He has also paid local property taxes to the Town
• for educational purposes to pay for public kindergarten through eighth grade education in his
• town and to pay for high school education at the Plymouth Regional High School. The real
• property owned by the petitioners is reflected in Table A, which is attached as an appendix to
• this complaint.
• 4. Petitioner Dr. Robert Gabrielli resides at 40 Via Tranquilla in Concord, New
• Hampshire. He and his wife are the sole owners of the Gabrielli Family Limited Partnership,
• through which they own commercial real estate at 316-322 Village Street, in Penacook, a section
• of Concord. They purchased this property, which includes retail space and apartments, in 1980.
• Dr. Gabrielli pays local property taxes to the city of Concord, New Hampshire on the
• commercial real estate for city taxes and for the SWEPT, which is discussed below. Dr.
• Gabrielli has also paid local property taxes for educational purposes to the city of Concord for
• his commercial real estate. The city of Concord transfers the SWEPT and local education tax
• revenues to the Merrimack Valley School District to pay for public elementary, middle school
• and high school education.
• 5. Petitioners Jessica Wheeler Russell and Adam Russell reside in the Penacook section
• of Concord, New Hampshire. Ms. Wheeler Russell, Mr. Russell and their family live in a home
• in Penacook, at 76 Manor Road. Ms. Wheeler Russell and Mr. Russell have paid local property
• taxes to the city of Concord, New Hampshire on their home for city taxes and for the SWEPT,
• which is discussed below. Ms. Wheeler Russell and Mr. Russell have also paid local property
• taxes for educational purposes to the city of Concord for their home. The city of Concord
• transfers the SWEPT and local education tax revenues to the Merrimack Valley School District
• to pay for public elementary, middle school and high school education. Although Ms. Wheeler
• Russell is a member-at-large of the Merrimack Valley School Board, she brings this action solely
• in her individual capacity and not as a school board member.
• 6. Petitioner James Lewis resides in the Town of Hopkinton, New Hampshire. He
• has owned his home at 70 Turnberry Lane for 23 years. He is the Superintendent of Schools in
• Lempster, NH, a small rural school district, and he is a volunteer firefighter in Hopkinton. He
• pays property taxes to the Town of Hopkinton, including the local educational tax and the
• SWEPT, which is discussed below. The Town of Hopkinton transfers the SWEPT and local
• education taxes it collects to the Hopkinton School District to pay for public elementary, middle
• school and high school education for Hopkinton students.
• 7. Petitioner John Lunn resides with his wife Meredith in Newport, New Hampshire.
• They have owned their cape style home at 23 Fletcher Road since 1991. The Lunns pay local
• property taxes to the town of Newport, New Hampshire, including the local education tax and
• the SWEPT, which is discussed below. The town of Newport transfers the SWEPT and local
• education tax revenues to the Newport School District to pay for public elementary, middle
• school, and high school education. Meredith Lunn, 72 years old, is retired on social security and
• John Lunn, 64, works as part-time manager of the Newport public access TV station. To
• supplement their income the Lunns converted the second floor of their home into a rental studio
• apartment.
• 8. The State of New Hampshire is a governmental body that may sue and be sued for
• declaratory and injunctive relief. The State has the unequivocal legal duty to provide a
• constitutionally adequate public education to every educable child in the state. Further, any tax
• used to meet this duty must be equal in valuation and uniform in rate. The State has adopted a
• number of laws, rules, and practices designed to provide public educational services to eligible
• children and to finance the cost of those educational services.
• A.
• III. THE CONSTITUTIONAL PRINCIPLES AT ISSUE IN THIS CASE
• School Taxes Used to Provide an Adequate Public Education to New
• Hampshire's Students Must be Equal in Valuation and Uniform in Rate.
• 9. In 1997, the New Hampshire Supreme Court found the State's school funding scheme
• unconstitutional and ordered the State to re-design its school funding system within 17 months.
• Claremont Sch. Dist. v. Governor, 142 N.H. 462, 465 (1997) ("Claremont If') ("In this appeal
• we hold that the present system of financing elementary and secondary public education in New
• Hampshire is unconstitutional. To hold otherwise would be to effectively conclude that it is
• reasonable, in discharging a State obligation, to tax property owners in one town or city as much
• as four times the amount taxed to others similarly situated in other towns or cities.").
• 10. With respect to taxes necessary to raise funds so the State can comply with its duty to
• provide a constitutionally adequate education, the Court held that "[a]lthough the taxes levied by
• local school districts are local in the sense that they are levied upon property within the district,
• the taxes are in fact State taxes that have been authorized by the legislature to fulfill the
• requirements of the New Hampshire Constitution." Id at 469. "Consequently, '[t]here is
• abundant justification in fact for taking this property out of the class taxed locally, and taxing it
• at the average rate throughout the state."' Id. (quoting Opinion of the Justices, 84 N.H. 559, 566
• (1930)).
• 11. The Court also explicitly held: "To the extent the State relies upon property taxes to
• fund a constitutionally adequate public education, the tax must be administered in a manner
• that is equal in valuation and uniform in rate throughout the State." Id. at 471 (emphasis
• added).
• 12. In so ruling, the New Hampshire Supreme Court stated that "[t]here is nothing fair or
• just about taxing a home or other real estate in one town at four times the rate that a similar
• property is taxed in another town to fulfill the same purpose of meeting the State's educational
• duty.'' Id.
• B. The State Has a Constitutional Duty to Provide a Public Education to New Hampshire's
• Students.
• I 3. The State's duty to provide a public education to the children of New Hampshire has
• been part of our Constitution since 1784. The New Hampshire Supreme Court affirmed this
• obligation 29 years ago in Claremont School District v. Governor ("Claremont f'), 138 N .H. 183
• (1993), when it declared that the New Hampshire Constitution obligates the State and the State
• alone "to provide a constitutionally adequate education to every educable child in the public
• schools in New Hampshire" and "to guarantee adequate funding." Id. The cost of providing an
• education that meets the constitutional standard of adequacy must be funded by state taxes that
• are equal in valuation and uniform in rate.1
• IV. THE COMPONENTS OF THE STATE'S CURRENT EDUCATION FUNDING SCHEME
• 14. New Hampshire's education funding system has multiple components. First, the
• State sets an arbitrarily low level of state "adequacy aid" that does not begin to approach the
• actual cost of a constitutionally adequate public education, and pays for only about 28% of the
• cost of public education. N .H. DEP 'T OF EDUCATION, STATE SUMMARY REVENUE AND
• EXPENDITURES OF SCHOOL DISTRICTS 2020-2021 (2021),
• https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/sonh/summary-of­
• rev.-exp-fy202l .pdf.
• 1 Petitioners focus on the lack of uniformity in tax rates in the instant complaint.
• 15. The amount of this state aid is based on a formula that assumes that the base cost of a
• constitutionally adequate education is $3,708.78, 2 RSA 198:40-a(II)(a), with small additional
• enhancements, called "differentiated aid" based on the number of students who are eligible for
• free- or reduced-price lunch (a placeholder for children in poverty), who qualify as English
• language learners, or who receive Special Education services. RSA 198:40-a(II)(b)-(d). There is
• also a category of differentiated aid that provides a stipend for students who score low on state
• assessment tests if the student does not otherwise qualify for differentiated aid. RSA 198:40-
• a(II)( e ). Table B of the Appendix sets out the amount of adequacy and differentiated aid
• required by RSA 198:40-a.
• 16. Like the State-funded cost of adequacy, the amounts allocated by the State to pay for
• the various differentiated aid stipends are arbitrarily low and insufficient to pay the additional
• costs necessary to provide the children who qualify for differentiated aid with a constitutionally
• adequate education.
• 17. Including the additional differentiated aid, the State provided districts during the
• 2020-21 school year with approximately $4,597 per student3 to meet its constitutional
• responsibility to fund adequacy, N .H. DEP'T OF EDUCATION, MUNICIPAL SUMMARY OF
• ADEQUACY AID (2021 ), https ://www .education.nh.gov/sites/ g/files/ehbemt3 26/files/inline­
• documents/2020-04/ad _ ed _ aid_ fy202 l.pdf, while the average per pupil cost published by the
• New Hampshire Department of Education (NHDOE) for that same year was $18,434.21. N.H.
• 2 The State's adequacy aid is adjusted each biennium based on changes to the Consumer Price
• Index. RSA 198:40-d. In 2020-2021, the State's baseline adequacy grant per pupil was $3,708.78.
• N.H. DEP'T OF EDUCATION, MUNICIPAL SUMMARY OF ADEQUACY AID (2021),
• https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/2020-
• 04/ ad_ ed _ aid _fy2 021. pdf.
• 3 This number is derived by dividing "Total Calculated Cost of an Adequate Education"
• ($769,142,373.74) by "19-20 Membership ADM" (167,284.28).
• DEP 'T OF EDUCATION, STA TE A VERA GE COST PER PUPIL AND TOTAL EXPENDITURES 2020-2021,
• https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/sonh/state-avg­
• cpp-fy202l .pdf.
• 18. When accounting for the costs .associated with capital expenses, transportation, debt
• service, tuition and construction costs, 4 the average per pupil cost is $21,762.96 (approximately
• $3,300 higher). Id.
• 19. The Statewide Education Property Tax, which is collected and distributed locally,
• ostensibly raises funds needed to meet the State's cost of funding an adequate education. RSA
• 76:3. Effective July 1, 2022, the SWEPT will raise approximately 7% of the actual cost of
• public education. 5
• 20. In previous years, the SWEPT raised about 10% of the actual cost and is slated to
• return to the 10% level on July l, 2023. 6
• 21. For most towns, the modest amount raised by the SWEPT does not meet the State's
• minimalist adequacy funding level. In these property-poor and middle-wealth communities, the
• State's "adequacy aid" supplements the SWEPT funds to bring the total amount of state support
• to approximately the $4,597 average adequacy cost. In property-wealthy communities, however,
• the SWEPT raises more funds per pupil than the State's low standard for what it asserts is the
• cost of a State-funded adequate education.
• 4 Despite being integral to the provision of educational services, these costs are not factored into
• the State's current funding level.
• 5 For the two-year state budget that became effective on July I, 2021, the legislature reduced the
• amount to be raised by the SWEPT from $363 million to $263 million, for one year only.
• 6 At $363 million, the SWEPT accounts for approximately 10% total net revenues. See N.H.
• DEP'T OF EDUCATION, STATE SUMMARY REVENUE AND EXPENDITURES OF SCHOOL DISTRICTS
• 2020-202 l (2021 ), https://www.education.uh.gov/sites/ g/files/ehbemt326/files/inline­
• documents/sonh/summary-of-rev .-exp-fy202 l .pdf.
• 22. Since 2011, the legislature has allowed these property-wealthy communities to retain
• the remaining revenue created by the SWEPT, to use as they see fit, either to lower their tax rates
• or spend the funds for any other purpose.
• 23. By far the largest source of school funding in New Hampshire is the local education
• tax, which makes up more than 60% of total public education revenue. N.H. DEP'T OF
• EDUCATION, STATE SUMMARY REVENUE AND EXPENDITURES OF SCHOOL DISTRlCTS 2020-2021
• (2021 ), https://www .education.nh.gov/sites/ g/files/ehbemt3 26/files/inline­
• documents/sonh/summary-of-rev .-exp-fy202 l.pdf. This revenue is necessary to make up the
• huge shortfall between the level of State aid and the actual cost of educating children in New
• Hampshire's public schools.
• 24. Because of the great disparities in property wealth among school districts, these local
• taxes are levied at rates that vary widely from school district to school district, thus imposing
• disproportionate tax rates on property owners across the state.
• 25. Almost 25 years after the Court's decision in Claremont 11, K-12 public education
• remains primarily funded by disproportionate and inequitable local property taxes.
• 26. No state in America relies upon local property taxes to fund public education to the
• extent New Hampshire does. See NAT'L CTR. FOR EDUCATION STATS., THE CONDITION OF
• EDUCATION: PUBLIC Scr-IOOL REVENUE SOURCES 3 (2020),
• https://nces.ed.gov/programs/coe/pdf/coe _ cma.pdf ("The percentages of revenues coming from
• local sources were highest in New Hampshire[,]" at 62%).
• V. THE CURRENT EDUCATION PROPERTY TAX SYSTEM IS UNCONSTITUTIONAL
• 27. Local property taxes upon which the State of New Hampshire relies to fund a
• constitutionally adequate public education are administered in a manner that is not uniform in
• rate throughout the state.
• A. Because of Loopholes for Property-Wealthy Towns, the SWEPT Was and Will Again Be
• Unconstitutional.
• 28. The Statewide Education Property Tax (SWEPT) is a state tax, although the State
• leaves it to local municipalities to assess, collect, and distribute the funds.7
• 29. By statute, the legislature has directed the Commissioner of the Department of
• Revenue Administration ("ORA") to set the SWEPT rates by issuing a warrant in December of
• each year.
• 30. For the 2022-2023 state fiscal year only, the legislature lowered the amount of the
• money to be collected by SWEPT from $363 million to $263 million.
• 31. This temporarily eliminated the surplus SWEPT revenues that property-wealthy
• towns have previously failed to send to the State and instead have kept for themselves.
• 32. However, as of July 1, 2023, the SWEPT will revert to its higher level and the
• disparities and inequities outlined below will return in full force.
• 7 The revenues generated by SWEPT never come into the State's possession. See RSA 76:3,
• 76:8. Indeed, the State must include a footnote in its Comprehensive Annual
• Financial Report (CAFR) to reflect that the "Statutory Fund" consisting of SWEPT is "Retained
• Locally by Cities and Towns." N.H. DEP'TOF ADMIN. SERVS., COMPREHENSIVE ANNUAL
• FINANCIAL REPORT 148, n.2 (2020),
• https://www.das.nh.gov/accounting/FY%2020/FY_2020_Comprehensive_Annual_Financial_Re
• port.pd[
• 33. In the property-wealthy communities, a portion of the revenue from a state tax that is
• intended to generate revenue to satisfy the State's duty to educate children across the state will
• once again be siphoned off by these communities.
• 34. This state revenue is absorbed into the local budgets of the wealthy towns, instead of
• being sent to the State, to then be distributed to communities where SWEPT does not raise
• enough revenue to fund the State's low adequacy standard.
• 35. A smaller number of towns also engage in a tax avoidance strategy where they offset
• the required SWEPT tax rate set by the DRA Commissioner's warrant by setting a local
• education tax rate that is negative.
• 36. For example, for the fiscal year ending June 2021, the SWEPT tax rate for Hale's
• Location was $1.85/$1,000 and the local education tax rate was set at a negative $1.84/$1,000,
• resulting in an effective combined education rate of one cent per thousand ($0.01/$1,000).
• 37. For examples of other communities offsetting the SWEPT with a negative local
• education tax, see Table C of the Appendix (Communities that Impose Negative School Tax
• Rates).
• 38. Petitioners expect this tax avoidance strategy to continue regardless of the amount of
• revenue generated by the SWEPT.
• 39. Because of the strategies employed by the prope1iy-wealthy towns to keep funds
• beyond those necessary to pay for the State's purported cost of adequacy or to offset the SWEPT
• with negative tax rates, taxpayers in wealthy towns pay lower effective rates for this state tax,
• which violates the core constitutional principle that state taxes must be imposed at uniform rates.
• See Opinion of the Justices, 142 N .H. 892 ( 1998) (rejecting the ABC "special
• abatement plan" for wealthy communities); Claremont School Dist. v. Governor, 144 N.H. 210
• ( 1999) (holding that a phased-in component of the statewide education property tax for wealthy
• communities was unconstitutional because it resulted in varying property tax rates that were
• unreasonable and disproportionate).
• B. Because the State's Adequacy Aid Falls Far Short of the Cost of a Constitutionally Adequate
• Education, Property Owners Must Make Up the Difference Through the Local Property Tax.
• 1. The State's Adequacy Aid is Woefully Insufficient to Meet its Constitutional Responsibilities
• 40. The Court did not define the specific components of a constitutionally adequate
• education in any of the 10 Claremont decisions, or in any subsequent decision, instead making
• clear that it is the legislature's responsibility to do so. The Court did, however, make clear that
• constitutional adequacy must be determined in the context of what educational services are
• offered by all New Hampshire schools. The Court chose a practical, expansive, and forward­
• looking model. See Claremont I, 138 N.H. at 192 ("Given the complexities of our society today,
• the State's constitutional duty extends beyond mere reading, writing, and arithmetic. It also
• includes broad educational opportunities needed in today's society to prepare citizens for their
• role as participants and as potential competitors in today's marketplace of ideas." (emphasis
• added)); Claremont II, 142 N.H. at 474 ("A constitutionally adequate public education is not a
• static concept removed from the demands of an evolving world ... [a] broad exposure to the
• social, economic, scientific, technological, and political realities of today's society is essential
• for our students to compete, contribute, and flourish in the twenty-first century.").
• 41. The State has identified a baseline allocation per pupil, initially set at $3,450.00. RSA
• 198:40-a (2008).
• 42. This baseline amount has only seen de minim is adjustments over the last 15 years. In
• 2015, the baseline was increased by approximately $100 to $3,561.27. RSA 198:40-a (2022).
• 43. The baseline allocation per pupil is adjusted each biennium based on changes to the
• Consumer Price Index. RSA 198:40-d.
• 44. For 2020-2021, the State's baseline grant amounted to $3,708.78. N.H. DEP'T OF
• EDUCATION, MlJNICIPAL SUMMARY OF ADEQUACY AID (2021),
• https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/2020-
• 04/ad_ed_aid_fy2021.pdf.
• 45. The arbitrarily low amount of State funding is insufficient to cover the cost of the
• educational services and standards contemplated in the State's adequate education statute.
• 46. Underscoring that it is appropriate to look at what other schools provide, the Court
• also wrote: "It is basic, however, that in order to deliver a constitutionally adequate public
• education to all children, comparable funding must be assured in order that every school
• district will have the funds necessary to provide such education.- Imposingdissimilarand
• unreasonable tax burdens on the school districts creates serious impediments to the State's
• constitutional charge to provide an adequate education for its public school students."
• Claremont II, 142 N.H. at 476 (emphasis added).
• 4 7. Given the Court's interpretation of the constitutional responsibility to allow students
• to "compete in the marketplace of ideas" and statement that schools must have comparable
• funding, Petitioners contend that the cost of a constitutionally adequate education should be
• derived from the average spending per pupil of schools across New Hampshire, with allowances
• for different student demographics and the geography of local school districts. The cost should
• also account for and include the cost of transportation, capital costs, and debt.
• 48. The New Hampshire Department of Education ("NHDOE") reports the costs per
• pupil spent by New Hampshire school districts. These reported costs are limited to non-capital
• costs and do not include the significant costs to provide transportation to school children. The
• average or mean cost per pupil published by the NHDOE on its website in each of the last 5
• reporting years was:
• 2020-21 - $18,434.21
• 2019-20 - $16,823.88
• 2018-19 - $16,346.45
• 2017-18 - $15,865.26
• 2016-17-$15,310.67
• N.H. DEP'T OF EDUCATION, COST PER PUPIL BY DISTRICT (2017-2021),
• https://www.education.nh.gov/who-we-are/division-of-educator-and-analytic-resources/bureau­
• of-education-statistics/financial-reports.
• 49. This data, and similar data, published by the NHDOE informs policymaking in the
• state and provides the most accurate information on education costs and expenditures, as well as
• the sources of education funding and tax rates imposed upon different districts for that purpose.
• 50. The State has never made payments to local school districts to support the funding of
• educational services in amounts that approach even one-third of the actual cost of providing
• public education in New Hampshire, non-capital and capital costs included.
• 51. The State has determined that the baseline cost of adequacy is $3,708.78 per pupil.
• Yet no schoo I district spends as little as th is. 8
• 52. By intentionally underfunding the cost of a constitutionally adequate education, the
• 8 In the 2020-2021 school year, the lowest spending district, Manchester, spent more than three
• times as much. N.H. DEP'TOF EDUCATION, COSTPERPUPILBYDISTRJCT, 2020-2021 (2021),
• https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/sonh/cpp­
• fy202l.pdf.
• State has shifted most of its funding responsibility to local property taxpayers, including
• Petitioners, in violation of Part II, Article 83 and Part II, Article 5 of the New Hampshire
• Constitution. The State's unconstitutional tax shift affects property owners who own property
• for personal residences and affects those who own property for a business purpose, making some
• communities less competitive economically because of disproportionately high tax rates.
• 11. Funding an Adequate Education for which the State is Responsible with Local Property Taxes
• is Inherently Inequitable and Unconstitutional
• 53. The State is constitutionally mandated to provide an adequate education. Claremont
• I, 138 N.H. at 184. The taxes imposed to fund this responsibility are state taxes. Claremont II,
• 142 N.H. at 469. State taxes must be equal in valuation and uniform in rate across the state. Id.
• at 471. By primarily relying on local prope11y taxes with hugely disproportionate rates because
• of greatly varying property wealth, the State violates this precept of Part II, Article 5 of the New
• Hampshire Constitution.
• 54. The average equalized valuation 9 of prope11y per pupil in New Hampshire school
• districts for the 2020-2021 school year, the last reported, was $1,346,793. N.H. DEP'T OF
• EDUCATION, EQUALIZED VALUATION PER PUPIL, 2020-2021 (2021 ),
• https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/sonh/EVPP-FY-
• 202l-PDF _0.pdf. This means that the school district with the average financial strength had
• $1,346,793 in property value for each student residing in the district against which it could levy a
• school tax.
• 9 To "equalize" the valuation of property in a community simply means that the property is
• assessed at l 00% fair market value, regardless of its local assessment. The New Hampshire
• ORA performs this function for all taxable realty across the state, enabling accurate comparisons
• of tax rates across the state.
• 55. Statewide, equalized valuations per pupil in the 2020-2021 school year ranged from a
• low of $523,285 per pupil in Claremont to a high of$120,861,443 per pupil in Millsfield. Id.
• 56. For communities with at least 100 public school students in residence, the high was
• $8,987,902 per pupil in Moultonborough. Id.
• 57. Portsmouth had an equalized valuation per pupil of $3,399,350, just shy of three
• times the state average. Id.
• 58. Petitioner Steven Rand lives in Plymouth where the last reported equalized valuation
• per pupil, for the 2020-2021 school year, was $942,652. Id. This means that Plymouth has
• about 70% of the financial strength to raise money for its schools as the state average in New
• Hampshire.
• 59. As an indication of how Plymouth has lost ground over time, the equalized valuation
• per pupil in the 2015-2016 school year was $826,496, as compared to a state average of
• $939,001 or 88% of the average.
• 60. Plymouth children attend high school at the Plymouth Regional High School, which
• is a part of the Pemi-Baker Cooperative School District. The Pemi-Baker Cooperative School
• District is made up of individual school districts that maintain their own elementary and middle
• schools and send their children to the Plymouth Regional High School. Ashland, Ellsworth and
• Waterville Valley also have an agreement to send high school children to the Plymouth Regional
• High School on a tuition basis but maintain their own K-12 school district. (This collection of
• school districts is referred to as the "Pemi-Baker Districts.")
• 61. Each of the children who attend the Plymouth Regional High School is eligible to
• receive the exact same educational services, regardless of the property wealth or tax rates of the
• communities in which they reside.
• 62. The equalized valuations for each of the Pemi-Baker Districts vary widely from
• highs of $5,469,546 per pupil in Waterville Valley and $4,754,006 per pupil in Holderness, to
• $942,652 per pupil in Plymouth.
• 63. The equalized valuations per pupil for all of the Pemi-Baker School Districts are
• presented in Table D of the Appendix. For comparison, the corresponding equalized valuations
• per pupil for the 2015-2016 school year are also provided.
• 64. Petitioners Dr. Gabrielli, Ms. Wheeler Russell, and Mr. Russell live or own property
• in Penacook where they suffer a double disadvantage. Penacook's financial strength fairs poorly
• when compared to the state average equalized valuation per pupil. Penacook also has a much
• lower equalized valuation per pupil than the rest of the city of Concord, of which Penacook is a
• part for all purposes except for public education.
• 65. Petitioner James Lewis lives and pays property taxes in Hopkinton, where the
• reported equalized valuation per pupil for the 2020-2021 school year, was $941,727, which was
• 69.9% of the state average of $1,346,793. This means that Hopkinton has only about 69.9% of
• the financial strength to raise money for its schools as the average school district in New
• Hampshire.
• 66. As an indication of how Hopkinton has lost ground over time, the equalized
• valuation per pupil in the 2015-2016 school year was $711,379, as compared to a state average
• of $939,001, or about 75.7% of the state average.
• 67. Petitioner John Lunn lives and pays taxes in the Town of Newport, where the
• reported equalized valuation per pupil for the 2020-2021 school year, was $649,873, which was
• 48.2% of the state average of $1,346,793. This means that Newport has only about 48.2% of the
• financial strength to raise money for its schools as the average school district in New Hampshire.
• 68. As an indication of how Newport has lost ground over time, the equalized
• valuation per pupil in the 2015-2016 school year was $503,931, as compared to a state average
• of $939,001, or about 53.7% of the state average.
• 69. The last reported equalized valuation per pupil, for the 2020-2021 school year, for
• Penacook was $654,006, 48.6% of the state average and 57% of the equalized valuation per pupil
• for the rest of Concord.
• 70. Penacook has lost ground over time compared to the rest of the state. The equalized
• valuation per pupil for Penacook in the 2015-2016 school year was $468,614, 50% of the state
• average.
• 71. In the following few paragraphs, Petitioners provide the Court with the last reported
• equalized school tax rates. Petitioners set out the equalized SWEPT rate, the local equalized
• school tax rate, and the combined equalized school tax rate (SWEPT plus local). Petitioners
• allege that the local education property tax burden is reflected by the combined equalized school
• tax rate.
• 72. Petitioner Rand lives in Plymouth and Plymouth is part of the Pemi-Baker Regional
• Cooperative School District. The rates for the Pemi-Baker Districts range from a high of
• $15.25/$1,000 in Campton to lows of $3.33/$1,000 in Waterville Valley and $6.90/$1,000 in
• Holderness. Plymouth has a combined tax rate of $13.69/$1,000. Table E provides the
• education tax rates for the Pemi-Baker Districts.
• 73. The state average combined education tax rate was $11.33 for the 2020-2021 school
• year.
• 74. Petitioners Dr. Gabrielli, Ms. Wheeler Russell, and Mr. Wheeler own property and
• live in Penacook and pay school taxes to the Merrimack Valley School District. Their 2020-
• 2021 school tax rates were $1.65/$1,000 for SWEPT and $15.09/$1,000 for local education taxes
• for a combined total of $16.74. Concord's combined rate was $13.81/$1,000 and the state
• average, again, was $11.33/$1,000.
• 75. Petitioner James Lewis owns property and lives in Hopkinton and pays school
• taxes to the Town of Hopkinton to support the Hopkinton School District. His 2020-2021 school
• tax rates were $1.66/$1,000 for SWEPT and $16.74/$1,000 for local education taxes, for a
• combined total of $18.40 in school taxes, compared to the state average of $11.33/$1,000.
• 76. Petitioner John Lunn owns property and lives in Newport and pays school taxes to
• the Town of Newport to support the Newport School District. His 2020-2021 school tax rates
• were $1.74/$1,000 for SWEPT and $13.73 for local education taxes, for a combined total of
• $15.57 in school taxes, compared to the state average of $11.33/$1,000.
• 77. The source for all of the above tax rate information is a website maintained by the
• New Hampshire DOE: N.H. DEP'TOF EDUCATION, VALUATIONS, PROPERTY TAX ASSESSMENTS
• AND TAX RATES OF SCHOOL DISTRICTS (2020-2021 ),
• https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/sonh/values-2020-
• revised_O.pdf. The ORA also maintains the tax rate information.
• 78. The tax rate information provided in the foregoing paragraphs and on the State's own
• websites establishes that taxes for schools in New Hampshire are unconstitutional in that they are
• not uniform in rate.
• VI. CAUSES OF ACTION
• 79. Petitioners adopt and incorporate by reference each and every preceding paragraph as
• if fully set forth herein.
• 80. Petitioners seek a declaratory judgment from this Court that finds and declares the
• following:
• The State does not currently guarantee funding sufficient to cover the cost of an adequate
• education. As a result, New Hampshire must rely on local school taxes to bridge the gap. These
• local school taxes violate Part II, Article 5 of the New Hampshire Constitution because they are
• not uniform in rate.
• 81. Petitioners also seek permanent injunctive relief requiring New Hampshire to
• discontinue its unconstitutional public education funding scheme because they suffer irreparable
• harm, any harm suffered by the State is outweighed by the harm that Petitioners suffer and,
• finally, because an injunctive ruling for Petitioners is in the public interest.
• 82. Petitioners further seek an order, directing the State to adopt a revised cost
• determination, which accounts for the full cost of providing constitutional adequacy to all school
• districts and amounts to no less than the average state expenditure per pupil, with allowances for
• demographic and geographic diversity and that includes consideration of the costs of
• transportation, capital costs, and debt.
• 83. Petitioners further seek attorney's fees and such other relief as this Court deems just
• and proper.
• VII. CLAIMS FOR RELIEF
• A. Petitioners seek a declaratory judgment as described above;
• B. Petitioners seek permanent injunctive relief to address the State's constitutional
• violations;
• C. Petitioners seek an order directing the State to revise its cost determination as
• described above, such that it will discontinue its reliance on local prope1iy taxes to meet the
• State's Article 83 responsibilities;
• D. Petitioners seek an order requiring the State to pay the costs and attorney's fees in this
• matter; and
• E. Petitioners seek such other relief as the Court deems just and proper.
• Dated: Concord, New Hampshire
• August 23, 2022
• Respectfully submitted,
• Isl Andru Volinsky
• Andru Volinsky, NH Bar No. 2634
• 160 Law, PLLC
• P.O. Box 1181, Concord, NI-I 03302
• (603) 491-0376
• andruvolinsky@gmail.com
• Natalie Laflamme, NH Bar No. 266204
• Laflamme Law, PLLC
• 100 N. Main St, Suite 512
• Concord, NH 0330 l
• (603) 937-5434
• natalie@laflammelaw.com
• John E. Tobin, Jr., NH Bar No. 2556
• 60 Stone Street
• Concord, NH 03301
• (603) 568-0735
• jtobinjr@comcast.net
• Gregory Litile*
• Education Law Center
• 60 Park Place
• Suite 300
• Newark, NJ 07102
• (973) 624-1815
• glittle@edlawcenter.org
• Joshua D. Weedman*
• Michael-Anthony Jaoude*
• Alexandra Zegger*
• White & Case LLP
• 1221 Avenue of the Americas
• New York, NY 10020
• (212) 819-8200
• *pro hac vice pending
• Appendix to Complaint
• Table A. Real Property Owned by Petitioners
• Owner Street Use of Property Paid Local Paid
• Address Town SWEPT
• Taxes Taxes
• Randvest 67-71 Main Rand's Yes Yes
• Street Hardware,
• Plymouth Commercial
• and Residential
• rental units
• Steven 120 High Personal Yes Yes
• Rand Street, Residence
• (RS Rand Plymouth
• Revocable
• Realty
• Trust)
• Randvest 15 Chase Commercial Yes Yes
• Street, and Residential
• Plymouth Rental
• Randvest 17 Railroad Commercial Yes Yes
• Square, Rental
• Plymouth
• Randvest 463 Daniel Residential Yes Yes
• Webster Rental
• Hwy,
• Plymouth
• Gabrielli 316-322 Commercial Yes Yes
• Family Village and Residential
• Limited Street,
• Partnership Concord
• Jessica 76 Manor Personal Yes Yes
• Wheeler Road_, Residence
• Russell and Concord
• Adam
• Russell
• James 70 Personal Yes Yes
• Lewis Turnberry Residence
• Lane,
• Hopkinton
• John Lunn 23 Fletcher Personal Yes Yes
• Road, Residence
• Newport
• Paid Local Subject
• Education to
• Taxes Business
• Taxes
• Yes Yes
• Yes No
• Yes Yes
• Yes Yes
• Yes Yes
• Yes Yes
• Yes No
• Yes No
• Yes No
• Table B. Adequacy and Differentiated Aid pursuant to RSA l 98:40-a 10
• Category Amount
• Cost of an Adequate Education $3,708.78
• Differentiated Aid- Free- or Reduced-Price $1,854.38
• Lunch
• Differentiated Aid - English Language $725.63
• Learner
• Differentiated Aid- Special Education $1,995.21
• Differentiated Aid - Low Test Scores $725.63*
• *Only available if doesn't receive other Differentiated Aid.
• 1 o N .H. DEP'T OF EDUCATION, MUNICIPAL SUMMARY OF ADEQUACY AID (2021 ),
• https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/2020-
• 04/ad _ ed _aid_fy2021.pdf.
• Table C. Communities that Impose Negative School Tax Rates 11
• District SWEPT rate per $1,000 Local Education Tax rate
• per $1,000
• Parens "( )" indicate
• negative rate
• Carroll County $1.85 ($1.84)
• Hale's Location $1.85 ($1.84)
• Coos County $1.71 ($0.61)
• Cambridge $1.68 ($1.65)
• Dix Grant $1.66 ($1.66)
• Dixville $1.60 ($0.47)
• Millsfield $1.80 ($0.16)
• Odell $1.73 ($1.73)
• Pinkhams Grant $1.93 ($1.93)
• Success $1.69 ($1.69)
• Wentworth Location $1.70 ($1.68)
• State Average $1.70 $9.63
• 11 N .H. DEP'T OF EDUCATION, VALUATIONS, PROPERTY TAX ASSESSMENTS AND TAX RATES OF
• SCHOOL DISTRICTS (2020-2021 ),
• https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/sonh/values-
• 2020-revised_ 0.pdf.
• Table D. Equalized Valuations per Pupil for Pemi-Baker Districts
• District 2020-2021 12 2015-2016 13
• Ashland $1,284,172 $1,083,870
• Campton $1,122,326 $891,811
• Ellsworth $1,862,840 $964,886
• Holderness $4,754,006 $2,889,731
• Plymouth $942,652 $826,496
• Rumney $1,529,129 $1,018,964
• Thornton $1,582,475 $1,188,142
• Waterville Valley $5,469,546 $8,946,204
• Wentworth $1,179,294 $983,255
• State Average $1,346,793 $939,001
• 12 N .I-I. DEP'T OF EDUCATION, EQUALIZED VALUATION PER PUPIL, 2020-2021 (2021 ),
• https :/ /www .educati on.nh. gov/ sites/ g/files/ ehbemt3 26/files/inLine-documents/sonh/EVPP-FY -
• 2021-PDF_0.pdf.
• 13 N.H. DEP'TOF EDUCATION, EQUALIZED VALUATION PER.PUPIL, 2015-2016 (2016),
• https://www.education.nh.gov/sites/g/files/ehbemt326/files/in1ine­
• documents/equal_pupil15 _16.pdf.
• Table E. Tax Rates for Pemi-Baker Districts14
• District Local Education SWEPT Rate/$1,000 Combined
• Rate/$1,000 Education Tax
• Rate/$1,000
• Ashland $11.89 $1.62 $13.51
• Campton $13.43 $1.82 $15.25
• Ellsworth $9.12 $1.58 $10.70
• Holderness $5.43 $1.47 $6.90
• Plymouth $11.93 $1.76 $13.69
• Rumney $12.93 $1.50 $14.43
• Thornton $11.48 $1.65 $13.13
• Waterville Valley $1.44 $1.89 $3.33
• Wentworth $11.02 $1.81 $12.83
• State Average $9.63 $l.70 $11.33
• 14 N.H. DEP'T OF EDUCATION, VALUATIONS, PROPERTY TAX ASSESSMENTS AND TAX RATES OF
• SCHOOL DISTRICTS (2020-2021 ),
• https ://www.education.nh.gov/ sites/ g/files/ ehbemt3 26/files/inline-documents/ sonh/val ues-
• 2020-revised _ 0.pdf.
• Certificate of Service
• 1 hereby certify that a true and exact copy of this Amended Complaint has been served
• upon the State of New Hampshire this 26th day of August 2022, by way of the Court's electronic
• filing and service system.
• Isl Natalie J Laflamme
• Natalie J. Laflamme
• EXHIBITC
• THE STATE OF NEW HAMPSHIRE
• Filed
• File Date: 7/19/2022 5:16 PM
• Grafton Superior Court
• E-Filed Document
• GRAFTON, SS. SUPERIOR COURT
• Steven Rand, et al.
• V.
• The State of New Hampshire
• Docket No. 215-2022-CV-00167
• OBJECTION TO MOTION TO CONSOLIDATE
• OR, IN THE ALTERNATIVE, FOR SPECIAL ASSIGNMENT
• The State ofNew Hampshire, by and through counsel, the New Hampshire Attorney
• General's Office, objects to the Plaintiffs' Motion To Consolidate Or, In The Alternative,
• For Special Assignment. In support thereof, the State says as follows:
• 1. The Plaintiffs, four individual taxpayers and two corporate entities, move to
• consolidate this education funding case with an education funding case brought by
• seventeen school districts that has been pending in superior court in another county since
• March 13, 2019 (Contoocook Valley School District, et al. v. State of New Hampshire, et
• al., Docket No. 213-2019-CV-00069) (the "Con Val case").
• 2. The parties in the Con Val case have progressed substantially into the
• discovery phase of the case and are presently in the process of conducting depositions.
• Fourteen of these depositions have been scheduled and will take place from later July
• through August. The plaintiffs in the Con Val case have already disclosed an expert, and
• the defendants are in the process of gathering the discovery necessary to do the same.
• Discovery in the ConVal case is scheduled to close on November 2, 2022, with trial
• scheduled for April 2023.
• 3. This case, by contrast, is in its infancy. Counsel for the State accepted service
• of this case on July 6, 2022. The State has until August 5, 2022 to answer or otherwise
• plead. The case will not be structured until the pleadings are closed.
• 4. This case also presents claims and theories different from those presented in
• the Con Val case. This case presents tax claims and theories under Part II, Article 5 of the
• New Hampshire Constitution that are not squarely presented in the Con Val litigation. This
• case also appears to present a theory of the State's education funding obligations under
• Part II, Article 83 of the New Hampshire Constitution different from the theory advanced
• in the Con Val litigation. As a result, it is far from clear at this juncture to what extent this
• action will have legal and factual issues in common with the Con Val action.
• 5. The State will need to have an adequate opportunity to develop discovery in
• this case and, in the ordinary course, would likely put this case on a one-year trial track.
• Though counsel for the State and counsel for the Plaintiffs have discussed the possibility
• of expediting this matter to some degree, that will only be possible to the extent both sides
• are comfortable with the theories underpinning the claims and defenses and the universe
• of facts each side intends to rely on to support those claims and defenses. It will, at a
• minimum, require that the parties conduct some measure of initial discovery and exchange
• expert reports. Consolidating this case with the Con Val case would unnecessarily inject
• unrelated factual disputes and legal theories into this case, hindering (if not precluding) the
• parties and, ultimately, the Court from efficiently identifying and resolving the legal and
• factual disputes this case presents. To the extent consolidation occurs, it is hard to conceive
• how the State could complete all potential discovery and pre-trial motion practice within
• the next four months in order to keep the Con Val litigation on its current trial schedule.
• 6. The State also disagrees with the Plaintiffs' contention that this case will
• involve "the same facts, witnesses, and evidence, including public data informing
• education costs in New Hampshire and tax rates imposed to finance those costs." Pls.' Mot.
• 19. While some state witnesses may be the same, the Plaintiffs in this case are not witnesses
• in the Con Val litigation, and it does not appear that the seventeen school districts in the
• Con Val case will be witnesses in this case. There will presumably be witnesses related to
• tax data and information in this case that will not be involved in the Con Val case.
• Additionally, the Plaintiffs have suggested that they will disclose at least one expert in this
• case, who presumably is not involved in the Con Val case and who will produce expert
• reports and opinions different from those involved in the Con Val case. The differences
• between the two cases in these regards are likely to be significant.
• 7. Additionally, because the claims and theories advanced in each case are
• different, consolidating these matters will substantially complicate trial by requiring the
• State to defend against, and the Court to ultimately resolve, what are functionally two
• separate lawsuits at the same time.
• 8. In short, the Con Val litigation is sufficiently different and sufficiently far
• along to make consolidation at this juncture problematic and prejudicial to the State in both
• cases.
• 9. The State therefore objects to consolidating this matter with the ConVal
• matter.
• 10. The State also objects to having this case specially assigned to a specific
• superior court judge in a county where venue does not lie.
• 11. While plaintiffs typically have some ability to choose the forum and venue
• in which they will proceed, our legal system presumes that the assignment of a particular
• judge to a case will be random unless a case is filed in a forum in which only a single judge
• presides.
• 12. Maintaining the random assignment of judicial officers is an important
• feature of our system, which assures the public that cases are assigned and heard on an
• impartial and neutral basis. Cf Trump v. Committee on Ways and Means, US. House of
• Representatives, 391 F. Supp. 3d 93, 97 (D.D.C. 2019) (construing local court rule
• requiring random assignment of cases); Tripp v. Executive Office of President, 196 F.R.D.
• 201,202 (D.D.C. 2000) ("The fundamental rationale for the general rule requiring random
• assignment of cases is to ensure greater public confidence in the integrity of the judicial
• process. The rule guarantees fair and equal distribution of cases to all judges, avoids public
• perception or appearance of favoritism in assignments, and reduces opportunities for judge­
• shopping. ").
• 13. That a particular judge has heard more of a specific type of case than other
• judges cannot override this important feature of the state judicial system. All superior court
• judges are qualified and required to sit on the cases over which they have jurisdiction and
• are not recused. No mechanism exists within the New Hampshire Superior Court Rules to
• have a particular case assigned to a particular superior court judge, particularly a superior
• court judge who does not sit in a county where venue exists in the case. Further, while
• seeking to ensure that similar legal issues are approached consistently may be an
• understandable impulse, "conformity for its own sake is neither necessary nor desirable for
• the [lower courts], because differences in opinion have the effect of ventilating important
• legal questions and creating a background against which the Supreme Court can ultimately
• resolve an issue for the [State] as a whole." Walker v. O'Brien, 216 F.3d 626, 634 (7th Cir.
• 2000).
• 14. Accordingly, if consolidation with another case is not appropriate, this case
• should not be specially assigned to the judge overseeing that case and should instead
• proceed in the normal course.
• WHEREFORE, for all the above reasons, the defendant respectfully requests this
• Court enter an order:
• A. Denying the Plaintiffs' Motion To Consolidate Or, In The Alternative, For
• Special Assignment; and
• B. Granting such further relief as the court deems just and equitable.
• Date: June 6, 2022
• Respectfully submitted,
• THE STATE OF NEW HAMPSHIRE,
• By its Attorney
• JOHN M. FORMELLA
• ATTORNEY GENERAL
• /s/ Lawrence P. Gagnon
• Samuel R.V. Garland, Bar# 266273
• Assistant Attorney General
• Lawrence P. Gagnon, Bar #271769 Attorney
• New Hampshire Dept. of Justice
• Civil Bureau
• 33 Capitol Street
• Concord, NH 03301
• (603) 271-3650
• samuel.r .v .garland@doj.nh.gov
• lawrence.p.gagnon@doj.nh.gov
• CERTIFICATE OF SERVICE
• I hereby certify that on this 19th day of July, a copy of the foregoing was served via the
• court's electronic filing system to all counsel of record.
• /s/ Lawrence P. Gagnon
• Lawrence P. Gagnon
• EXHIBITD
• STATE OF NEW HAMPSHIRE
• Superior Court
• Grafton, ss.
• Case No. 215-2022-CV-00167
• Steven Rand and Randvest, Inc.,
• 120 Highland Street
• Plymouth, NH 03264
• Dr. Robert Gabrielli and the
• Gabrielli Family Ltd. Partnership,
• 40 Via Tranquilla
• Concord, NH 03301
• Jessica Wheeler Russell and Adam Russell,
• 76 Manor Road
• Concord, NH 03303
• Petitioners,
• V.
• The State of New Hampshire,
• Defendant.
• MOTION TO CONSOLIDATE
• OR, IN THE ALTERNATIVE, FOR SPECIAL ASSIGNMENT
• Filed
• File Date: 7/8/2022 3:46 PM
• Grafton Superior Court
• E-Filed Document
• NOW COME Petitioners Steven Rand and Randvest, Inc., Dr. Robert Gabrielli and the
• Gabrielli Family Limited Partnership, and Jessica Wheeler Russell and Adam Russell, by and
• through their undersigned counsel, and respectfully move to consolidate these proceedings with
• Contoocook Valley School District, et. al v. State of New Hampshire, et. al ("Con Val"), No. 213-
• 2019-CV-00069 (N.H. Super. Ct. Mar. 13, 2019), currently pending before the New Hampshire
• Superior Court on remand or, in the alternative, to specially assign this matter to the Honorable
• David Ruoff, the judge supervising the Con Val case. In support of this motion, Petitioners state
• as follows:
• 1. The above-captioned action is brought on behalf of New Hampshire taxpayers
• against the State of New Hampshire.
• 2. Con Val was brought on behalf of four New Hampshire school districts against the
• State of New Hampshire and other state governmental actors. The other state governmental
• actors were subsequently dismissed, and other school districts added.
• 3. Both actions arise out of the constitutional duties imposed upon the State of New
• Hampshire, by Part II, Article 5 and Part II, Article 83 of the New Hampshire Constitution.
• 4. In Con Val, the petitioners allege that the amount of the State's adequacy aid (RSA
• 198:40-a(II)(a)) is insufficient, specifically challenging the purported cost of transportation,
• student-teacher ratios, teacher and staff benefits, and certain on-site operations like food and
• custodial services. According to the petitioners, insufficient funding for these components of the
• cost calculation gives rise to a system of unconstitutional reliance on local taxes.
• 5. In the above-captioned action, Petitioners are taxpayers principally challenging a
• system of funding for public education that relies on taxes which are not uniform in rate,
• including but not limited to the statewide education property tax ("SWEPT"). Beyond the
• unconstitutional administration of SWEPT, Petitioners additionally challenge the local education
• taxes that districts must self-impose in order to make up the large difference between the State's
• adequacy aid and the cost of providing adequacy to New Hampshire's students.
• 6. Ultimately, both actions seek relief from the system of disproportionate and
• unconstitutional taxation that persists in New Hampshire as a result of the State's failure to fund
• the cost of an adequate education.
• 7. These actions will involve resolution of common issues, including whether the
• taxes imposed upon New Hampshire taxpayers violate the State Constitution, whether the State's
• current funding contribution is sufficient to provide constitutional adequacy and, if not, the
• revised cost that the State must pay to satisfy its constitutional obligations.
• 8. To the extent that these cases present any non-duplicative issues, Petitioners
• believe those issues are based on undisputed facts and can therefore be resolved as a matter of
• law through an expedited motion for summary judgment. To the extent that any issues of fact
• remain after that motion, the remaining issues would be duplicative of the facts at issue in the
• Con Val trial in April 2023.
• 9. The consolidation of these cases would conserve judicial resources, as these
• actions will involve consideration of the same facts, witnesses, and evidence, including public
• data informing education costs in New Hampshire and the tax rates imposed to finance those
• costs.
• 10. Should the Court deny Petitioners' request for consolidation, Petitioners
• alternatively request that this Court assign the above-captioned action to Judge David Ruoff
• based on his breadth of knowledge and experience concerning relevant issues resulting from his
• presiding over the Con Val case for over three years. Based on the foregoing, Petitioners believe
• that special assignment to Judge Ruoff would conserve judicial resources. Judge Ruoff's
• familiarity with these common issues would ensure expeditious resolution of Petitioners' claims.
• 11. Counsel to Petitioners in the above-captioned action have conferred with counsel to
• the petitioners in Con Val, Attorney Michael J. Tierney, and with counsel for the State, Assistant
• Attorney General Samuel Garland, both of whom object to the requested relief.
• WHEREFORE, Petitioners respectfully request that this Honorable Court consolidate the
• cases named herein and schedule the cases for a joint trial in April 2023; or in the alternative,
• assign the above-captioned action to Judge David Ruoff.
• Dated: July 8, 2022
• Upon review of the plaintiffs' motion, the
• defendant's objection and the plaintiffs
• replication, the court determines that a
• hearing in unnecessary. The motion is
• Denied for the reasons set forth in the
• defendant's objection.
• Honorable Lawrence A. Macleod, Jr:
• August 19, 2022
• Respectfully submitted,
• Isl Natalie J. Laflamme, Esq.
• Natalie Laflamme, NH Bar No. 266204
• Laflamme Law, PLLC
• 100 N. Main St, Suite 512
• Concord, NH 03301
• (603) 937-5434
• natalie@laflammelaw.com
• Certificate of Service
• I hereby certify that a true and exact copy of this Motion has been served upon counsel
• for the Con Val petitioners and counsel for the State this 8th day of July, 2022 by way of the
• Court's electronic filing and service system.
• Clerk's Notice of Decision
• Document Sent to Parties
• on oa,1912022
• Isl Natalie J. Laflamme, Esq.