Help us fund local COVID-19 reporting in our community

State files appeal of ConVal school funding lawsuit 

  • A ConVal School District bus. (Benji Rosen/ Monadnock Ledger-Transcript) Benji Rosen

  • The ConVal School District has sued the state over its education funding formula.  Staff photo by Nicholas Handy

Monitor staff
Published: 9/4/2019 6:06:13 PM

New Hampshire’s Attorney General is appealing to the state Supreme Court a judge’s ruling that the state’s funding formula for education is wrong, according to documents released Wednesday – bringing a potential landmark ruling closer to reality. 

But whether there will be a full Supreme Court bench to hear that appeal remains unclear. 

Two months after a bitterly divided Executive Council struck down Gov. Chris Sununu’s nominee to the high court, Attorney General Gordan MacDonald, a replacement candidate has not been put forward.

Instead, Sununu, who has railed against the 3-2 July decision as partisan politics, has said he will be holding off on bringing up a new nominee for the near future. 

Now, a ruling hoped for by public school advocates to impose a new judicial standard on adequate school funding faces the possibility of a four-judge decision – or an alternate being recruited from a lower court.

Representatives of several New Hampshire school districts have argued, once again, that the current funding formula is unconstitutional.

The state’s notice of appeal against the decision of Cheshire County Superior Court Judge David Ruoff was filed with the state Supreme Court last week and made public Wednesday.

Ruoff ruled in June that the funding formula is inaccurate, based on calculations by lawmakers that don't take into account the real costs of transportation, teachers or facilities.

He responded to a lawsuit by the ConVal, Mascenic, Winchester, and Monadnock school districts against the state, the Department of Education and Commissioner Frank Edelblut, and Gov. Chris Sununu. The suit said the state's duty to provide and pay for an adequate education hasn't been accomplished.

For now, any significant action by the Supreme Court is a ways off. The court still needs to review the state’s request to appeal, decide whether to accept it, await a transcript of the previous trial, set a 30-45 due date for each side’s briefs, and allow for reply briefs by the appellant – all of which can take months. 

The Supreme Court can then decide whether to hear the case through oral arguments or to just rely on the briefs.

Should the vacancy on the high court persist, the court has two options: hear the case with four judges, or appoint a fifth at random from a lower court. In significant or controversial cases, the court generally opts to appoint another just, seeking to avoid a tie.

On Wednesday, a spokesman for the governor’s office did not give a time table for when Sununu might bring a new nominee forward. In a statement, the office sought to blame the impasse on council Democrats .

“There is no reason that the Supreme Court vacancy remains open other than the fact that the Executive Councilors have yet to agree to execute their responsibility of confirming nominees based on their qualifications, body of work, and merit – without political bias,” the statement read.

Executive Councilor Andru Volinsky disagreed. 

The Concord Democrat, who is exploring a bid for governor and who voted down MacDonald in July, said with the court facing a briefing schedule that could take “about three months,” it was unclear whether a nominee might be approved in time. But he put the blame for that on Sununu. 

“There’s no good reason why we don’t have a nomination now,” he said. “But that’s basically your time frame.”

He added: “I think there needs to be an open consultative process, where the governor seeks our advice and we provide it. And I know Councillor Pignatelli and Councillor Cryans have offered to do that with me. And so we’re just waiting for the opportunity to speak with the governor.”

Attorneys for the plaintiffs and the Attorney General’s office declined to comment Wednesday. But a spokesman for governor’s office stressed that the case could move forward even with a vacancy.

“The New Hampshire Supreme Court continues to operate with four justices,” the statement continued. “Until the existing vacancy has been filled, several provisions remain in place that allow for the selection of a temporary replacement justice, should that be deemed necessary.”

Material from the Associated Press was used in this report. 

(Ethan DeWitt can be reached at, at (603) 369-3307, or on Twitter at @edewittNH.)

Concord Monitor Office

1 Monitor Drive
Concord,NH 03301


© 2019 Concord Monitor
Terms & Conditions - Privacy Policy