In Case No. 2001-063, Evelyn Sirrell & a. v. State of New Hampshire & a., the court upon September 4, 2001, made the following order:

Plaintiffs’ motion for reconsideration is denied.

In their motion for reconsideration, the plaintiffs ask the court to remand the case to superior court for a new trial. They argue that: (1) they failed to offer proof that the education property tax resulted in harm because they anticipated that it would be relevant only to the "remedy" phase of the litigation; and (2) this court announced a standard of proof that was much higher than the one they urged and expected. We find these arguments unpersuasive and address each in turn.

This litigation was bifurcated into a "liability" and a "remedy" stage. At the liability stage, the plaintiffs were required to show that the taxing scheme was unconstitutional as applied. At the remedy stage, they would have been required to show that the taxing scheme resulted in monetary damages. The plaintiffs and the dissenting justices have mistakenly conflated the two stages and the burdens of proof associated with each.

At the liability stage, the plaintiffs had to show that the taxing scheme, as applied, resulted in disproportionate taxation. See Delude v. Town of Amherst, 137 N.H. 361, 363 (1993); Austin v. State Tax Comm’n, 114 N.H. 137, 139 (1974), reversed on other grounds, 420 U.S. 656 (1975). Because the plaintiffs sought to have the entire statewide property taxation scheme declared unconstitutional, they were required to show more than slight or inadvertent disproportion; they had to show a widespread scheme of disproportionate taxation. This is the "harm" to which we referred. Had the plaintiffs proved at the liability stage that the taxing scheme was unconstitutional, then at a subsequent remedy stage, they would have been required to quantify their monetary damages. However, as we stated in the opinion, the plaintiffs failed to show that the taxing scheme was unconstitutional as applied.

The plaintiffs and the dissenting justices have focused upon and misunderstood our use of the phrase "widespread intentional discrimination." By definition, disproportionate taxation means that a taxpayer is taxed at a rate or based upon a percentage of fair market value that is higher than another taxpayer. This is the "discrimination" to which our opinion referred. We noted that to prevail in a declaratory judgment proceeding in which the disparity between taxpayers was slight, the plaintiffs would have to show that it was intentional. The plaintiffs, however, could have satisfied their burden of proof by establishing that the disparity between taxpayers was substantial or that the lack of uniformity was great. See, e.g., Claremont School Dist. v. Governor, 142 N.H. 462, 470-71 (1997). Where the disparity between taxpayers is substantial or the lack of uniformity is great, "intentional discrimination" can be inferred. Significantly, however, the plaintiffs failed to prove even isolated or inadvertent lack of uniformity.

Challenges to perceived discriminatory taxation must also rest upon concrete proof, not hypothetical scenarios. As the trial court noted, the plaintiffs failed to prove how the taxation system operated in practice. Rather, they presumed that disproportionate taxation resulted from the system’s theoretical flaws. The plaintiffs’ presumptions were not proof and did not entitle them to declaratory judgment. See Delude, 137 N.H. at 363.

While this standard of proof may have been different from the one the plaintiffs urged and expected, it is the standard of proof that the defendants advocated. See Leto v. Assessors of Wilmington, 202 N.E.2d 922 (Mass. 1964). The court imposed no impenetrable barrier, but recognized a bearable burden. Cf. Marriott Corp. v. Bd. of County Com’rs, 972 P.2d 793, 797-99 (Kan. Ct. App. 1999). Remand is not required because the plaintiffs failed to meet this burden. See Lujan v. National Wildlife Federation, 497 U.S. 871, 897 (1990) ("[A] litigant’s failure to buttress its own position because of confidence in the strength of that position is always indulged at the litigant’s own risk").

We therefore decline the plaintiffs’ request to remand this case for a new trial. The plaintiffs have already had the opportunity to prove that the system resulted in disproportionate taxation and they failed to do so.


NADEAU, DALIANIS and DUGGAN, JJ., concurred; BROCK, C.J., and BRODERICK, J., dissented.


BROCK, C.J., and BRODERICK, J., dissenting: "Whenever this court has been able to ascertain from briefs or oral arguments that a remand is necessary to complete the record or to prevent injustice, the case has been continued in this court and the remand has been allowed." Rautenberg v. Munnis, 107 N.H. 446, 448 (1966). Because these considerations are pertinent to this case, we would grant the motion for reconsideration and remand to the trial court.

The record supports that the parties agreed the issues of the constitutionality of the statewide property tax statute and the appropriate remedy in the event the tax was struck down would be tried separately. As pointed out in our dissent in the opinion on this matter, these issues carry different burdens of proof and the question of the harm suffered by the operation of the property tax is relevant to the issue of remedy. At trial on the constitutionality of the statute, the trial court applied existing law, listened to evidence for six days, and issued a sound and persuasive sixty-page ruling in favor of the plaintiffs. On appeal, this court adopted a new, higher burden of proof to which constitutional challenges to taxing schemes are to be held and ruled that the plaintiffs failed to meet that burden. Although we believe that this higher burden was met at trial, "[t]his determination is properly committed to the trial court in the first instance." Hayes v. Newspapers of N.H., 141 N.H. 464, 466 (1996). The trial court and the plaintiffs ought not be penalized for failing to apply a burden of proof not yet in existence in New Hampshire law. See New Hampshire Supply Co. v. Steinberg, 119 N.H. 223, 231 (1979) ("The trial court understandably, did not apply the rule of law we enunciate today . . . . We, therefore, remand the case to the trial court to determine . . . whether [the new legal standard is met].").

The majority and the dissent agree that the statewide property tax system is seriously flawed. Given the significance of this case to every taxpayer in the State of New Hampshire, to prevent injustice this court should remand to allow the plaintiffs an opportunity to satisfy the new burden of proof adopted by the majority on appeal. See Shannon v. Foster, 115 N.H. 405, 407 (1975).

Howard J. Zibel,


Date of clerk’s notice of decision: September 4, 2001