The N.H. Attorney General’s Office wants to hire two outside lawyers to assist in the latest court battle over the state’s school-funding formula. But attorneys for the growing list of school districts arguing the formula is unconstitutional say they shouldn’t be allowed to join the case, in part because the state has exceeded its total budget for such services by more than $2.4 million.
The state is seeking to retain two St. Louis-based attorneys who specialize in education-funding litigation for the case, which is back in Cheshire County Superior Court after a Supreme Court decision in March found that the original 2019 ruling in the case did not employ the proper legal analysis when it declared the state fails to meet its constitutional duty to fund an adequate education.
But in court documents filed earlier this month, Michael Tierney, the Manchester-based attorney representing the districts — including ConVal, the lead plaintiff; Fall Mountain; Monadnock; and Winchester — argued that the process for securing the funds to hire these attorneys could delay the case, a claim the state denies.
The attorney general’s office has a total budget of $350,000 this year to hire outside counsel in all of the cases it handles, Tierney wrote. If the office exceeds this budget, he added, it must seek approval for additional funds from the Executive Council and the Joint Legislative Fiscal Committee.
“The State neglects to mention, however, that it has already exceeded the $350,000 line item for the 2021 Fiscal Year by over $2.4 million and has had to go through the time consuming and uncertain process of obtaining first Fiscal Committee and then Executive Council approval,” he wrote.
But attorneys for the state argue they do not need this approval moving forward to retain the two attorneys, J. Nicci Warr and John R. Munich of the corporate law firm Stinson LLP.
According to documents filed as exhibits to Tierney’s motion, the state has obtained approval for $2,418,250 in additional litigation expenses for the current fiscal year. Senior Assistant Attorney General Anthony J. Galdieri wrote that the state’s budget for outside litigation would be able to cover the fees for Warr and Munich.
“Thus, contrary to the petitioners’ unsupported assertion in their objection, the respondents do not have to spend time seeking the approval of the fiscal committee or the governor and council to retain Attorneys Munich and Warr in this action,” Galdieri wrote in a motion filed last week. “Regardless, the petitioners fail to explain how seeking such approval (even if it had to be done) would slow the case down in any way.”
The $2.4 million approved for additional litigation expenses, though, is driven by particular cases — including the investigation into alleged sexual abuse at the state-run former Youth Development Center and antitrust investigations into transactions involving health care systems — and not the school-funding lawsuit, these documents show.
The ConVal, Monadnock, Winchester and Mascenic districts spent a combined total of $129,263 on attorney fees in the initial 2019 case, before it went to the Supreme Court, Tierney said Monday, citing the most recent figure included in publicly available court documents. He declined to give an updated total because that number hasn’t been published in subsequent court filings, and ConVal district officials could not be reached Monday to provide that figure.
Cheshire County Superior Court Judge David W. Ruoff, who is presiding over the case, has not issued a ruling yet on whether Warr and Munich will be allowed to join the case.
In the meantime, the number of school districts that have joined the case has grown to 12. The Mascoma Valley Regional School District on Monday became the latest district to become a co-plaintiff, according to a news release from the ConVal School District, which first filed the case in March 2019.
The Winchester, Monadnock and Mascenic districts signed on to the case before it went to Cheshire County Superior Court later that year, after which Ruoff ruled that the state’s school-funding formula is unconstitutional.
Both sides appealed that decision to the state Supreme Court, which ruled in March that the case needs to return to superior court, in part to settle the disputed underlying facts of the case — such as determining the components and costs of a constitutionally adequate education — before Ruoff can rule on whether the formula is unconstitutional.
Since the Supreme Court ruling, the Fall Mountain, Claremont, Derry, Grantham, Hillsboro-Deering, Newport and Oyster River districts also have joined the case. Monday, Mascoma and Manchester — the largest district to join thus far — signed on, according to the N.H. Union-Leader.
During a status conference last month, Ruoff set Friday as the deadline for additional districts to sign on to the case. The Keene Board of Education is scheduled to discuss whether the district will join the case at its meeting Tuesday evening.
The trial date for the case has not been set yet, but Ruoff said during the April status conference it could begin in the summer of 2022.
The ConVal lawsuit is the latest in a line of school-funding cases dating back to the early 1990s, when the state Supreme Court issued its Claremont I and II decisions. Those opinions held that the state must fund an “adequate education.”
For the current school year, the state provided districts with a baseline of $3,708 per student in “adequacy aid,” plus additional amounts tied to students’ socioeconomic status, how many are in special education programs and other factors.
Statewide, districts spent an average of $16,823 per student in the 2019-20 school year, not including tuition to out-of-district schools, transportation, equipment and construction, according to data from the N.H. Department of Education.