In Case No. 98-322, Request of the Senate for an Opinion of the Justices, the court upon June 23, 1998, made the following order concerning Senate Resolution 3:

To the Honorable Senate:

On May 21, 1998, we received Senate Resolution No. 3 seeking an opinion of the justices on the following question:

Would enactment of SB 508-FN as amended, and its funding allocation formula and method of dedicating such funding fulfill the mandates of Claremont II or violate Part II, Article 5 of the New Hampshire constitution?

We invited interested parties to file memoranda with the court on or before June 2, 1998. At a special session of the court on June 5, 1998, there was an opportunity for oral argument on the question presented. The undersigned justices of the supreme court return the following response to the senate.

In essence, Senate Bill 508-FN (the bill) preserves the system of State foundation aid provided to school districts under RSA 198:27-:37 (1989 & Supp. 1997), but modifies the aid formula to achieve an increased level of aid per "weighted pupil." The bill proposes using a portion of the revenue raised from the meals and rooms tax, see RSA ch. 78-A (1991 & Supp. 1997), to establish an education trust fund that would provide monies for State foundation aid. Senate Resolution No. 3, however, states that the bill "does not alter the present property tax method for education." Thus, it appears that the bill is designed to use the increased State foundation aid to supplement the existing system of funding education with real estate property taxes.

In Claremont School District v. Governor, 142 N.H. __, __, 703 A.2d 1353, 1356 (1997) (Claremont II), we 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." Consequently, the court stated 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. at __, 703 A.2d at 1357.

To the extent that the bill contemplates continued reliance upon unreasonable and disproportionate real estate property taxes existing under the current property tax system to fulfill the State's obligation to fund public education, we conclude that it does not comply with Claremont II and violates Part II, Article 5 of the State Constitution.


David A. Brock

William R. Johnson

W. Stephen Thayer, III

Sherman D. Horton, Jr.

John T. Broderick, Jr.


We received written comments from legislators, attorneys, and citizens concerning this issue. The court extends its appreciation to all who provided comment. For a complete list of those persons and organizations filing comments, see our response to Senate Resolution No. 4 in Opinion of the Justices (School Financing), 142 N.H. __, __, __ A.2d __, __ (decided June 23, 1998).