Contoocook Valley School District & a. v. State of New Hampshire & a.

C
NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Cheshire
No. 2019-0500


                CONTOOCOOK VALLEY SCHOOL DISTRICT & a.

                                         v.

                     THE STATE OF NEW HAMPSHIRE & a.

                         Argued: September 24, 2020
                        Opinion Issued: March 23, 2021

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

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


      John E. Tobin, Jr., of Concord, on the brief, and Laflamme Law, PLLC, of
Concord (Natalie J. Laflamme on the brief), for Berlin School District, Derry
School District, Hopkinton School District, Mascoma Valley Regional School
District, Pittsfield School District, Newport School District, Merrimack Valley
Regional School District, Haverhill School District, Winnisquam Regional
School District, White Mountains Regional School District, Claremont School
District, Concord School District, Warren School District, Piermont School
District, Bath School District, Manchester School District, Governor Wentworth
Regional School District, Keene School District, Chesterfield School District,
Harrisville School District, Marlborough School District, Marlow School
District, Nelson School District, Westmoreland School District, Nashua School
District, Fall Mountain Regional School District, and the New Hampshire
School Boards Association, as amici curiae.


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


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

       DONOVAN, J. The defendants, the State of New Hampshire, the New
Hampshire Department of Education (DOE), Governor Christopher T. Sununu,
and the Commissioner of DOE, Frank Edelblut (collectively, the State), appeal a
decision of the Superior Court (Ruoff, J.) denying, in part, the State’s motion to
dismiss and denying its cross-motion for summary judgment, granting the
plaintiffs’ motion for summary judgment on grounds that the amount of per-
pupil base adequacy aid set forth in RSA 198:40-a, II(a) (Supp. 2020) to fund
an adequate education is unconstitutional as applied to the plaintiff school
districts, and awarding the plaintiffs attorney’s fees. The plaintiffs, Contoocook
Valley School District, Myron Steere, III, Richard Cahoon, Richard Dunning,
Winchester School District, Mascenic Regional School District, and Monadnock
Regional School District, cross-appeal the trial court’s failure to find RSA
198:40-a, II(a) facially unconstitutional; its determinations regarding the
sufficiency of the State’s funding of transportation, teacher benefits, facilities
operations and maintenance, and certain services; its failure to find that the
State’s system of funding education violates Part II, Article 5 of the State
Constitution; and its denial of their request for injunctive relief; and its
dismissal of their claims against the Governor and the Commissioner.

    We affirm the trial court’s dismissal of the Governor and the
Commissioner in their individual capacities, and its denials of the State’s


                                        2
motion to dismiss for failure to state a claim, the State’s cross-motion for
summary judgment, and the plaintiffs’ request for injunctive relief. However,
we reverse that portion of the trial court’s order granting the plaintiffs’ motion
for summary judgment and awarding attorney’s fees, and remand for further
proceedings consistent with this decision.

        At the outset, we note that the issue before us is a narrow one —
whether the trial court erred in resolving the merits of the plaintiffs’ claims on
summary judgment without significant discovery. The State does not contest
the underlying law applicable to the issues in this case. Under our education
funding jurisprudence, Part II, Article 83 of the State Constitution “imposes a
duty on the State to provide a constitutionally adequate education to every
educable child in the public schools in New Hampshire and to guarantee
adequate funding.” Claremont School Dist. v. Governor, 

138 N.H. 183

, 184
(1993). To comply with that duty the State must “define an adequate
education, determine the cost, fund it with constitutional taxes, and ensure its
delivery through accountability.” Londonderry Sch. Dist. v. State, 

154 N.H.
153

, 155-56 (2006) (quotation omitted). The plaintiffs do not challenge the
constitutionality of the definition of an adequate education set forth in RSA
193-E:2-a (Supp. 2020). Rather, the plaintiffs’ grievance is that the State is not
fulfilling its constitutional duty because local school districts require
substantially more funding than the State currently provides under RSA
198:40-a, II(a) in order for them to deliver the opportunity for a constitutionally
adequate education, as defined in RSA 193-E:2-a, to the public school children
in New Hampshire.

                            I. Procedural Background

        In Londonderry School District, the State appealed a trial court ruling
that the State’s education funding system violated Part II, Article 5 of the State
Constitution and that the State had failed to fulfill its duty, as required by Part
II, Article 83 of the New Hampshire Constitution, to define a constitutionally
adequate education, to determine its cost, and to satisfy the requirement of
accountability. Londonderry Sch. 

Dist., 154 N.H. at 154-55

; see Claremont
School Dist. v. Governor (Accountability), 

147 N.H. 499

, 505 (2002). We
determined that, standing alone, the legislature’s definition of an adequate
education in RSA 193-E:2 did not fulfill the State’s duty to define the
substantive content of a constitutionally adequate education in such a manner
“that the citizens of this state can know what the parameters of that
educational program are.” Londonderry Sch. 

Dist., 154 N.H. at 161

. Because
the definition of a constitutionally adequate education was essential to all other
issues, including its cost, we stayed the portion of the trial court’s decision that
the legislature had failed to determine the cost of a constitutionally adequate
education.

Id. at 162.

3

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

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

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

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

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




                                        4
average daily membership in attendance (ADMA), see RSA 189:1-d, III (2009);
RSA 198:38, I(a) (Supp. 2020), to be:

      (a) A cost of $3,561.27 per pupil in the ADMA, plus differentiated
      aid as follows:
      (b) An additional $1,780.63 for each pupil in the ADMA who is
      eligible for a free or reduced price meal; plus
      (c) An additional $697.77 for each pupil in the ADMA who is an
      English language learner; plus
      (d) An additional $1,915.86 for each pupil in the ADMA who is
      receiving special education services; plus
      (e) An additional $697.77 for each third grade pupil in the ADMA
      with a score below the proficient level on the reading component of
      the state assessment . . . .

RSA 198:40-a, II. The statute provides that “[t]he sum total calculated under
paragraph II shall be the cost of an adequate education.” RSA 198:40-a, III.
The rates set forth in the statute are adjusted each biennium to reflect changes
in the federal Consumer Price Index. RSA 198:40-d (Supp. 2020). At issue in
this case is the cost amount set forth in RSA 198:40-a, II(a). According to the
plaintiffs, that amount was $3,636.06 per pupil for the 2019 fiscal year.

       In March 2019, the plaintiffs brought a petition for declaratory judgment
and injunctive relief asserting facial and as-applied constitutional challenges to
RSA 198:40-a, II(a). The plaintiffs alleged that the amount of base adequacy
aid fails to sufficiently fund an adequate education as guaranteed by Part II,
Article 83 of the State Constitution. The plaintiffs specifically challenged five
areas of the cost determinations set forth in the Joint Committee’s Final Report
and 2008 Spreadsheet: (1) transportation; (2) teacher-student ratios; (3)
teacher and staff benefits; (4) the failure to include several State-required
services including nurse services, superintendent services, and food services;
and (5) facilities operations and maintenance. The plaintiffs alleged that,
because the amount of base adequacy aid in RSA 198:40-a, II(a) is insufficient
to cover those costs, the school districts are forced to increase their local taxes
in order to fund a constitutionally adequate education in violation of Part II,
Article 83. In addition, the plaintiffs challenged the Statewide Education
Property Tax (SWEPT). See RSA 76:3 (2012). They asserted that the lack of
adequate funding via the SWEPT requires property-poor school districts, but
not property-wealthy districts, to increase their property taxes, thereby
violating both Part II, Article 83 and Part II, Article 5 of the State Constitution.

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



                                         5
expedited treatment of the case, the trial court set expedited deadlines for
dispositive motions and responsive pleadings, and scheduled a final hearing on
the merits for the first week of June. In doing so, the trial court disagreed with
the State that significant discovery might be required, characterizing “the
factual and discovery issues, if any, [as] very discre[te] and well defined.”
Thereafter, the State moved to dismiss the plaintiffs’ petition for failure to state
a claim, the plaintiffs filed a second amended petition and moved for summary
judgment, and the State cross-moved for summary judgment.

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

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

                                    II. Analysis

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



                                         6
of an adequate education.” In their cross-appeal, the plaintiffs argue that the
trial court erred by: (1) rejecting their facial challenge to RSA 198:40-a, II(a); (2)
failing to find that the State is underfunding the actual costs of transportation
for all students, teacher salaries, and facilities operations and maintenance; (3)
failing to find that the State provides no funding for nurse, superintendent, and
food services; (4) dismissing their claims against the Governor and the
Commissioner individually; (5) denying their request for injunctive relief; and
(6) declining to reach their claims under Part II, Article 5 of the State
Constitution.

       The constitutionality of a statute is a question of law, which we review de
novo. Sumner v. New Hampshire Secretary of State, 

168 N.H. 667

, 669 (2016).
In reviewing a legislative act, we presume it to be constitutional and will not
declare it invalid except upon inescapable grounds.

Id. This presumption
requires

that we will hold a statute to be constitutional unless a clear and
substantial conflict exists between it and the constitution.

Id. When doubts
exist

as to the constitutionality of a statute, those doubts must be resolved in
favor of its constitutionality.

Id. The party challenging

a statute’s
constitutionality bears the burden of proof.

Id.

A. Motion to

Dismiss

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

       In reviewing a trial court’s ruling on a motion to dismiss, we consider
whether the allegations in the pleadings are reasonably susceptible of a
construction that would permit recovery. Weare Bible Baptist Church v. Fuller,

172 N.H. 721

, 725 (2019). We assume the pleadings to be true and construe
all reasonable inferences in the light most favorable to the plaintiff.

Id. We
need not,

however, assume the truth of statements in the pleadings that are



                                          7
merely conclusions of law. Lamb v. Shaker Reg’l Sch. Dist., 

168 N.H. 47

, 49
(2015). We then engage in a threshold inquiry that tests the facts in the
petition against the applicable law. 

Fuller, 172 N.H. at 725

. When the facts
alleged by the plaintiff are reasonably susceptible of a construction that would
permit recovery, we will uphold the denial of a motion to dismiss.

Id.

As discussed below

in Section B, we agree with the State that the costing
determinations set forth in the Joint Committee’s Final Report and 2008
Spreadsheet are irrelevant as to whether the amount of funding set forth in
RSA 198:40-a, II(a) is constitutional. However, in the context of the State’s
motion to dismiss, even setting aside the allegations in the amended petition
that are based upon the Final Report, we conclude that the remaining
allegations “are reasonably susceptible of a construction that would permit
recovery.” 

Fuller, 172 N.H. at 725

. The amended petition alleges that: “[t]he
state average [expenditure for] elementary and secondary education per pupil
was $18,901.32 for the 2017-2018 school year”; the State Constitution
“imposes solely upon the State the obligation to provide sufficient funds for
each school district” (quotation omitted); the State “does not currently provide
sufficient funds for each and every school district to provide a constitutionally
adequate education”; the plaintiffs “receive base adequacy aid at a rate of
$3,636.06 per pupil and need to raise additional funds via local taxation in
order to provide a constitutionally adequate education”; “[n]o school district
can provide a constitutionally adequate education on only $3,636.06 per
pupil”; and “[n]o school district can provide the requirements of RSA 193-E:2-a
on only $3,636.06 per pupil.”

       Assuming, as we must, the allegations set forth in the plaintiffs’
pleadings to be true and construing all reasonable inferences in the light most
favorable to the plaintiffs, at its core the amended petition alleges that the
State is failing to fulfill its constitutional obligation to fully fund an adequate
education. As the trial court observed, the plaintiffs “have consistently pled
throughout that . . . the State has failed to meet its obligation to fully fund an
adequate education as required by Part II, Article 83, of the New Hampshire
Constitution, and that a constitutionally adequate education cannot be
provided . . . without more base adequacy funding than [is] provided by the
State pursuant to” RSA 198:40-a, II(a). (Quotations, brackets, and record
citations omitted.) Thus, we affirm the trial court’s denial of the State’s motion
to dismiss the amended petition for failure to state a claim.

                                B. Summary Judgment

      The parties contend that the trial court erred in ruling on their respective
motions for summary judgment. In considering the trial court’s rulings on
cross-motions for summary judgment, we consider the evidence in the light
most favorable to each party in its capacity as the non-moving party and, if no
genuine issue of material fact exists, we determine whether the moving party is


                                         8
entitled to judgment as a matter of law. JMJ Properties, LLC v. Town of
Auburn, 

168 N.H. 127

, 129 (2015). If our review of that evidence discloses no
genuine issue of material fact and if the moving party is entitled to judgment as
a matter of law, then we will affirm the grant of summary judgment.

Id. at
129-30.

An issue of fact is material if it affects the outcome of the litigation.
Horse Pond Fish & Game Club v. Cormier, 

133 N.H. 648

, 653 (1990).

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

      Whether RSA 198:40-a incorporates the Final Report by reference into
the law raises an issue of statutory construction. The interpretation of a
statute is a question of law, which we review de novo. Forster v. Town of
Henniker, 

167 N.H. 745

, 749 (2015). In matters of statutory interpretation, we
are the final arbiter of the legislature’s intent as expressed in the words of the
statute considered as a whole.

Id. When examining the

language of a statute,
we ascribe the plain and ordinary meaning to the words used.

Id. at 749-50.

In construing a statute, we will neither consider what the legislature might
have said, nor add words that it did not see fit to include.

Id. at 750.

      The 2008 session law sets forth the legislature’s statement of purpose in
enacting RSA 198:40-a. Laws 2008, 173:1. In pertinent part, the statement of
purpose provides:

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


                                         9
      adequate education enacted in the 2007 Laws of New Hampshire,
      chapter 270. The methodologies for costing, determination of
      resources, and elements of cost included in this act are intended to
      and do fulfill the state’s duty under the Encouragement of
      Literature clause of the New Hampshire constitution to deliver the
      opportunity for an adequate education.

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

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

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

Laws 2008, 173:1.

       The legislature’s intent to incorporate by reference must be clear. See,
e.g., State v. Fitanides, 

139 N.H. 425

, 427-28 (1995) (noting that New
Hampshire statute, which provided, in pertinent part, that “‘Class B special
fireworks’ means class B special fireworks as defined in 49 CFR section
173.88(d), packaged and unpackaged,” incorporated federal regulation by
reference (quotation omitted)); Shangri-La, Inc. v. State, 

113 N.H. 440

, 442
(1973) (where a statute provided that “Gross Business Profits” means “in the
case of a corporation which elects treatment as a small business corporation
under the United States Internal Revenue Code (1954) as amended, the
amount shown as ‘taxable income’ on its United States small business
corporation income tax return,” such language “imports a legislative intent to
incorporate by reference the federal income tax method of determining taxable
income” (quotations omitted)).


                                       10
      The statement of purpose in the 2008 session law provides that, in
reaching its determination of the costs of the opportunity for an adequate
education, the legislature considered information from numerous sources
including “professional educators, government officials, education policy and
finance experts, and the public.” Laws 2008, 173:1. In addition, the “findings
and recommendations” of the joint oversight committee “on the composition of
the cost of an adequate education and how the funds . . . should be allocated”
were considered and constituted “an integral basis of the costing
determinations reflected in” the act.

Id.

This language does

not identify which findings and recommendations the
legislature adopted, nor does it state that the legislature adopted the
underlying rationale behind those findings and recommendations. See Right to
Life v. Dept. of Health & Human Serv’s, 

778 F.3d 43

, 55 (1st Cir. 2015)
(explaining that “[m]ere reliance on a document’s conclusions . . . does not
necessarily involve reliance on a document’s analysis; both will ordinarily be
needed before a court may properly find adoption or incorporation by reference”
(quotations omitted)). Moreover, the Final Report is not expressly identified in
the session law, see 

Fitanides, 139 N.H. at 428

. Accordingly, we determine
that the general language set forth in the 2008 session law falls short of
expressing clear legislative intent to specifically incorporate by reference the
Joint Committee’s Final Report, including its 2008 Spreadsheet, as part of RSA
198:40-a. Thus, the Final Report constitutes legislative history, not
substantive law.

       We do not consider legislative history to construe a statute which is clear
on its face. See Anderson v. Estate of Wood, 

171 N.H. 524

, 528 (2018)
(explaining that we will not examine legislative history unless we find statutory
language to be ambiguous); see also State Employees’ Ass’n of New Hampshire,
Inc. v. State, 

127 N.H. 565

, 568 (1986) (explaining that “[e]ven if the plaintiffs
could show that some legislators had an intent that ran counter to the
statutory language actually enacted, this would not create the uncertainty of
statutory meaning that is necessary to justify an inquiry beyond the words of
the statute itself”). As the trial court observed, RSA 198:40-a, II(a) is
“unambiguous as to the amount provided.” Thus, the legislature’s underlying
rationale for reaching the cost set forth in the statute, including the
methodology contained in the Joint Committee’s Final Report and 2008
Spreadsheet, is irrelevant to determining whether the amount is sufficient to
cover the cost of delivering an adequate education as defined by the legislature
in RSA 193-E:2-a. See State v. Chrisicos, 

158 N.H. 82

, 88 (2008) (explaining
that “because we never require a legislature to articulate its reasons for
enacting a statute,” such reasons are “irrelevant for constitutional purposes”
(quotation omitted)).




                                       11
        In reaching its determination that RSA 198:40-a, II(a) is unconstitutional
as applied to the plaintiffs, the trial court reasoned that “the most appropriate
way to determine whether the [plaintiffs] have alleged an actual deprivation is
to analyze each ‘flaw’ that the [plaintiffs] have highlighted in the 2008
Spreadsheet” regarding the costing determinations and rationale employed by
the Joint Committee. In doing so, the trial court found, among other things,
that the Joint Committee’s calculation of base adequacy aid was based on
faulty teacher-student ratios and thus concluded that “RSA 198:40-a, II(a)
. . . results in an actual deprivation of the fundamental right to a State-funded
adequate education,” that the State “lack[ed] a compelling government interest
to support the Joint Committee’s teacher-student ratio that was used in
calculating the base adequacy aid in RSA 198:40-a, II(a),” and that “[t]he faulty
ratio alone is sufficient to find that RSA 198:40-a, II(a) is unconstitutional.”

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

       Furthermore, summary judgment is warranted only when no genuine
issue of material fact exists and the moving party is entitled to judgment as a
matter of law. See JMJ 

Properties, 168 N.H. at 129-30

. After noting that the
plaintiffs do not challenge the constitutionality of the definition of an adequate
education set forth in RSA 193-E:2-a, the trial court correctly observed that it
is “impossible” to address the plaintiffs’ costing argument without first
determining what is required to deliver an adequate education as defined in the
statute. Although determining the components of an adequate education and
their costs presents a mixed question of law and fact, as the parties’ briefs
make clear, the underlying facts are vigorously disputed, thereby precluding
entry of summary judgment for either party.

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


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

                                  C. Remaining Arguments

       In light of our holding, we reverse the trial court’s determination that the
plaintiffs are entitled to their attorney’s fees. In addition, we need not address
the plaintiffs’ arguments regarding the trial court’s failure to find that the
State’s system of funding education violates Part II, Article 5, or that the court
erred in denying their request for injunctive relief. Further, although the
plaintiffs assert that the trial court erred in failing to find RSA 198:40-a, II(a)
unconstitutional on its face, we do not read the court’s order as reaching the
merits of that issue. Rather, as a threshold matter, the trial court determined
the level of scrutiny to apply in analyzing the plaintiffs’ motion for summary
judgment. In doing do, the court framed the question before it as “whether the
amount of base adequacy aid as provided in RSA 198:40-a, II(a) results in an
actual deprivation of the fundamental right to a State-funded adequate
education.” Noting that the plaintiffs alleged both facial and as-applied
challenges to RSA 198:40-a, and because the statute “does not deprive the
[plaintiffs] of a fundamental right on its face,” the trial court analyzed the
statute as applied to the plaintiff school districts to determine whether an
actual deprivation had occurred.

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


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


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

                                            Affirmed in part; reversed in part;
                                            and remanded.

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




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