THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Request of the Senate
No. 98-322
OPINION OF THE JUSTICES
(School Financing)
June 23, 1998
Philip T. McLaughlin, attorney general, (Mr. McLaughlin, Steven M. Houran, deputy attorney general, Martin P. Honigberg, senior assistant attorney general, Anne M. Edwards, assistant attorney general, on the memorandum, and Mr. McLaughlin orally) in support of negative answers to the questions presented.
Paul McEachern, of Portsmouth, on the memorandum and orally, on behalf of Governor Jeanne Shaheen, in support of returning the questions unanswered or returning negative answers to the questions presented.
Joshua L. Gordon, of Concord, on the memorandum and orally, on behalf of State Senators Caroline McCarley, Allen Whipple, Clesson Blaisdell, Debora Pignatelli, Sylvia Larsen, John King, Katie Wheeler, Beverly Hollingworth, and Burton Cohen, in support of returning the questions unanswered or returning negative answers to the questions presented.
Peter Hoe Burling, Ann Torr, Merle Schotanus, Joseph Stone, and Richard Champagne, State Representatives, on the memorandum, and Mr. Burling orally, in support of returning the questions unanswered or returning negative answers to the questions presented.
John M. Lewis, Gail F. Paine, Joel C. Olbricht, Ann McArdle, and Jeffrey M. Pollock, members of the State Board of Education, on the memorandum, and Mr. Lewis orally, in support of negative answers to the questions presented.
Stanley R. Arnold, commissioner, of Concord, on the memorandum and orally, on behalf of the New Hampshire Department of Revenue Administration, in support of negative answers to the questions presented.
John E. Tobin, Jr., of Concord, on the memorandum and orally, McLane, Graf, Raulerson and Middleton, P.A., of Manchester (Wilbur A. Glahn, III on the memorandum), and Stein, Volinsky and Callaghan, P.A., of Concord (Scott F. Johnson and Andru H. Volinsky on the memorandum), on behalf of the Claremont petitioners (except Franklin School District), in support of affirmative answers to the questions presented.
Kirkpatrick & Lockhart, of Boston, Massachusetts (John M. Edwards on the memorandum and orally), on behalf of the New Hampshire House Republican Alliance & a., in support of affirmative answers to the questions presented.
Frederic K. Upton, of Concord, on the memorandum and orally, in support of affirmative answers to questions 1 and 2.
James M. Rubens, State Senator, of Etna, on the memorandum and orally, and Edward C. Mosca, of Concord, on the memorandum, in support of affirmative answers to the questions presented.
Sheehan Phinney Bass + Green, of Manchester (Thomas J. Flygare on the memorandum), on behalf of Fredrick J. Bramante (Mr. Bramante orally), in support of affirmative answers to questions 1 and 2.
The following resolution, Senate Resolution No. 4, requesting an opinion of the justices, was adopted by the senate on May 21, 1998, and filed with the supreme court on May 22, 1998:
"Whereas, there is presently before the Senate HB 1280-LOCAL, an act clarifying the procedures for background criminal checks for school employees and volunteers; and
"Whereas, there is also presently pending before the Senate, an amendment to HB 1280-LOCAL (document number 1998-1849s), which would amend HB 1280-LOCAL to: an act implementing the Advancing Better Classrooms program to provide a constitutionally adequate public education to all the children of New Hampshire; and
"Whereas, the bill as amended is designed to respond to the recent Claremont decision (Claremont School District v. Governor, 142 N.H. __, 703 A.2d. 1353 (1997), hereinafter `Claremont II'); and
"Whereas, the bill as amended contains provisions regarding the calculation of a state education tax, the calculation of a per pupil cost of an adequate education, and special abatements for certain communities; and
"Whereas, a question has been raised that the adoption of the bill as amended, including the abatement provisions, may be in violation of the language of Claremont II, and of Part I, Article 28-a and Part II, Article 5 of the state constitution; and
"Whereas, the majority opinion of the honorable court in the Claremont II decision called into question the constitutional validity of the entire local property tax system for the periods after `the 1998 tax year' thereby creating an imminent risk of fiscal crisis for local school budgets throughout the state, which places a great premium on ensuring that any legislative solution adopted be consistent with the Claremont II decision prior to its implementation; and
"Whereas, HB 1280-LOCAL as amended reflects the efforts of the executive and legislative branches of our state government to address public education financing issues in response to the decision of the honorable court in Claremont II and therefore raises issues of constitutional dimension; and
"Whereas, HB 1280-LOCAL as amended would undertake substantial reevaluation of the traditional means of financing public education within New Hampshire, with great impacts on the traditional relationships among school districts throughout the state, and between the state and local governments, all on the assumption that such substantial reevaluation would be consistent with the decision in Claremont II; now, therefore, be it
"Resolved by the Senate:
"That the justices of the supreme court be respectfully requested to give their opinion upon the following important questions of law:
1. Would enactment of HB 1280-LOCAL as amended, and its funding allocation formula and property tax abatement scheme violate Part II, Article 5 of the state constitution requiring that all taxes be proportional and reasonable?
2. Would enactment of HB 1280-LOCAL as amended, violate the express language of this court in Claremont II, that to the extent that the property tax is used to fund the provision of an adequate education, to be constitutional, the tax must be administered in a manner that is equal in valuation and uniform in rate throughout the state?
3. Would enactment of the multi-variant funding allocation formula using both local income and property wealth factors in section 86 of HB 1280-LOCAL as amended as it amends RSA 198:27-37 violate Part II, Article 5 of the state constitution relative to uniformity and proportionality or the express language of Claremont II?
4. Would enactment of the multi-variant funding allocation formula in section 86 of HB 1280-LOCAL as amended as it amends RSA 198:27-37, if coupled with the property tax abatement scheme in section 15 of HB 1280-LOCAL as amended, and resulting in continued disparity of effective property tax rates to support a constitutionally adequate education violate Part II, Article 5 of the state constitution or the express language of Claremont II?
5. Would enactment of HB 1280-LOCAL as amended, violate Part I, Article 28-a of the state constitution by requiring in section 59 of the bill as amended that every school district prepare and implement a local education improvement and assessment plan by requiring in sections 48 and 54 of the bill as amended that every school district provide approved schools subject to mandatory minimum approval standards set by the state board of education without providing every school district funding sufficient to pay for such mandates?
6. Would the enactment of any other provision of HB 1280-LOCAL as amended: (a) result in a violation of the `proportional and reasonable' requirements of Part II, Article 5 of the New Hampshire constitution; or (b) create an impermissible classification of property in violation of Part II, Article 6 of the New Hampshire constitution; or (c) violate any other provision of the New Hampshire constitution?
"That the senate clerk transmit copies of this resolution and HB 1280-LOCAL as amended (1998-1849s) to the justices of the supreme court."
The following response is respectfully returned:
To the Honorable Senate:
The undersigned justices of the supreme court submit the following reply to your questions of May 21, 1998. Following our receipt of your resolution, we invited interested parties to file memoranda with the court on or before June 2, 1998. Oral argument on the questions presented by the request took place at a special session of the court on June 5, 1998.
Before answering the specific questions raised in Senate Resolution No. 4, we address whether this request is appropriately the subject of an advisory opinion. Part II, Article 74 of the New Hampshire Constitution provides: "Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions." There are several limitations in the operation of Part II, Article 74. We address the pertinent ones as follows.
First, "[a]dvisory opinions required by this constitutional provision are limited to advice upon important legal questions pending in, and awaiting consideration and action by, the body entitled to the advice in the course of its duty." Opinion of the Justices, 115 N.H. 329, 330, 340 A.2d 112, 114 (1975). There is no doubt that these requirements are met here. While it is suggested that an advisory opinion should not be allowed to proceed until the senate's consideration of the bill has reached the "penultimate stage" and is ready for an "ought to pass" vote, the constitution contains no such requirement. The only timing consideration imposed is that the justices are not ordinarily required to furnish opinions after the legislature has adjourned, except where requested for guidance at a possible special session of the legislature or at the next regular one. Opinion of the Justices, 105 N.H. 125, 127, 193 A.2d 880, 881 (1963).
Second, justices of the supreme court are not "empowered to give advisory opinions on legal questions involving resolution of questions of fact." Opinion of the Justices, 123 N.H. 510, 511, 463 A.2d 891, 892 (1983). The controlling questions before us, however, involve a determination of the proposed legislation's facial constitutionality.
Third, the supreme court is not permitted to advise the legislature "as to the meaning and scope of existing statutes." Opinion of the Justices, 102 N.H. 187, 188, 152 A.2d 872, 873 (1959). To allow otherwise would place the court in the position of giving "advice in matters that may come before the court for decision," Opinion of the Justices, 67 N.H. 600, 601, 43 A. 1074, 1074 (1892), or expressing its views "upon questions involving private rights." Opinion of the Justices, 76 N.H. 597, 600, 79 A. 490, 492 (1911). Our response to this request for an opinion of the justices does not require us to advise upon a presently effective statute. Thus, there is no conflict between rendering a non-binding advisory opinion for the senate while retaining jurisdiction in Claremont School District v. Governor, 142 N.H. __, __, 703 A.2d 1353, 1360 (1997) (Claremont II).
We conclude that Senate Resolution No. 4 presents important questions of law and a solemn occasion for which we are required to render an advisory opinion. "In giving such an opinion, the justices do not act as a court, but as the constitutional advisers of either branch of the legislature requiring their opinion . . . ." Opinion, 60 N.H. 585, 585 (1881).
Your first question asks, "Would enactment of HB 1280-LOCAL as amended, and its funding allocation formula and property tax abatement scheme violate Part II, Article 5 of the state constitution requiring that all taxes be proportional and reasonable?" Your second question asks whether enactment of HB 1280-LOCAL as amended (the bill) would "violate the express language of this court in Claremont II, that to the extent that the property tax is used to fund the provision of an adequate education, to be constitutional, the tax must be administered in a manner that is equal in valuation and uniform in rate throughout the state?" Because Claremont II simply explained the meaning and import of Part II, Article 5, we answer these two questions together. Both are answered in the affirmative. In reaching this conclusion, we do not revisit the merits of the issues raised in Claremont II. Rather, we advise on the constitutionality of the proposed legislation under the law of this State as expressed therein.
Part II, Article 5 of the State Constitution provides that the legislature may "impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and residents within, the said state." In Claremont II, the court concluded that taxes levied to fund education "are in fact State taxes that have been authorized by the legislature to fulfill the requirements of the New Hampshire Constitution," and are not, in fact, local taxes. Claremont II, 142 N.H. at __, 703 A.2d at 1356. Accordingly, the court held that "the varying property tax rates across the State violate part II, article 5 of the State Constitution in that such taxes, which support the public purpose of education, are unreasonable and disproportionate." Id. at __, 703 A.2d at 1357. The court offered further that "[t]o the extent that the property tax is used in the future to fund the provision of an adequate education, the tax must be administered in a manner that is equal in valuation and uniform in rate throughout the State." Id.
The bill, in addition to defining an adequate education, purports to establish a uniform State education tax rate based upon the equalized value of all taxable real property in the State. The tax rate is determined by calculating the total statewide cost for educating all New Hampshire students and dividing this sum by the total statewide equalized property value. The bill also authorizes, however, a "special abatement" for "[t]he amount of state education tax apportioned to each town . . . in excess of the product of the statewide per pupil cost of an adequate education . . . times the average daily membership in residence for the town." HB 1280-LOCAL