On November 24, 1999 the Petitioners filed a petition for injunctive relief from action taken at the November 16, 1999 Oyster River Special School District meeting. An expedited hearing on the merits was held by the Court on December 22, 1999. At the hearing, Petitioners' attorney hand delivered to the Respondents a motion to amend the pleadings. The motion to amend for the first time raised the issue that the School District's action here was not "raised by the resolution of the Claremont lawsuit". In answer to the amended petition the Respondents cited the financial impact of the resolution of the Claremont lawsuit on the tax rates and the affordability of the School District project as grounds for its school district meeting.

I. PETITIONERS FAILED TO MEET THEIR BURDEN OF PROOF

In view of the uncertainty created by the failure to resolve the school funding crisis that plagued New Hampshire school districts in the spring (see Exhibit A attached hereto), the court's finding that the Oyster River School District's November 16 bond vote was not an issued raised by the resolution of the Claremont lawsuit should be reconsidered. The only evidence the Petitioners relied on to argue the vote at issue here did not fall within Chapter 2:3's broad authority permitting a second meeting to consider "any issue raised by the resolution of the Claremont lawsuit" was the fact that a similar bond issue had been considered previously and failed. The Petitioners, however, failed to introduce any evidence that the District's vote on the bond at the March 1999 School District meeting was not adversely affected by the uncertainty created by the lack of a resolution to the Claremont lawsuit at the time of the vote. Therefore, they failed to meet their burden of proofing the vote on the bond's affordability, once Claremont was resolved, was not an issue raised by the resolution of Claremont.

During offers of proof at the hearing on this matter, the School District argued that the uncertainty at the time of the School District meeting in the spring of 1999 was in part the reason for the Legislature hastily passing Chapter 2:3. In addition, the District's counsel cited the videotape of the School District meeting as evidence. A review of the tape reveals that the uncertainty that pervaded in the State as a result of the Legislature's failure to arrive at a funding mechanism to replace the system that would become unconstitutional as of April 1, 1999 (see Claremont School District. et al v. Governor. et al, 142 N.H.462 (1997), was also a concern in Oyster River at the time of the annual School District meeting and that the concern over the ultimate resolution to Claremont adversely affected the bond vote. (See Tapes and Exhibit B attached hereto).

The facts are clear. At the February 2, 1999 first session of the annual school district meeting during discussion on the bond, Malcolm McNeill of Durham asked the School Board pointed questions regarding the proposed bond's tax impact on the various communities in the Coop and what the School Board's determination of the projected tax impact from the bond was based upon in view of the Claremont lawsuit. Further he asked whether the board had considered delaying the bond vote until the funding crisis was resolved. (See tape of meeting).

After the bond issue had been thoroughly discussed and the meeting affirmed its decision to place the bond vote on the School ballot, voters immediately moved to take up Article 9 in the warrant which was a new apportionment formula for the District that had been submitted by the petition of Jere Beckman, your petitioner in this case. (See Exhibit C attached hereto).

Mr. Beckman in his advocacy for the article on the floor of the meeting discussed the holding in a superior court case Gordon Allen. et al v. State of New Hampshire, Hillsborough Cty. Super Ct.- South 96-F-060, (copy attached as Exhibit D). He quoted the court's holding that found the statutory scheme at issue in setting the apportionment formula in cooperative school districts was unconstitutional given the dictates of the Supreme Court's decision in Claremont II. He then went on to argue that:

"Because it is an unknown as to where we are going to be with that, I would caution everybody to be very careful about committing ourselves to a lot larger debts until this is resolved. I don't expect this warrant article to pass. It was put on there to raise the red flag that down the road, particularly folks in Durham, may be seeing a lot higher taxes than you realize. And I think you are further warned by your representative, Mrs. Smith is it?, that in light of what is going on in Concord now, you may see even a bigger hit. So, if you are frugal and prudent you might not vote yourself into too much debt until this is all resolved. And that's why the article went on the warrant."

In short, Mr. Beckman, your petitioner himself, capitalized on the uncertainty created by Claremont to defeat the bond issue proposed to voters. In March he succeeded. Once Claremont had been resolved, however, voters saw what had been projected tax increases of between $2.20 and $2.95 at the time of the March vote turn into tax decreases of over $8.88 and $9.49 in two of the communities in the cooperative and $1.76 in Durham as a result of the resolution of Claremont. Nevertheless, Mr. Beckman, who placed the article on the warrant by petition to specifically call attention to the uncertainty caused by a lack of the resolution of Claremont at the time of the meeting, now argues that the affordability of the bond was not an issue raised by the resolution of Claremont. The affordability of the building project in the Oyster River School District most certainly was an issue raised by Claremont and the petitioner himself through his advocacy at the annual school district meeting clearly proves it.

It was not just Mr. Beckman that raised the funding crisis as a reason to defeat the bond. In a March 6 letter to the Editor of Fosters Daily Democrat, Robert Causey of Durham specifically cited the uncertainty created by the lack of a resolution of Claremont as a reason to delay approval of the bond until after the State adopted a new system of financing education. (See Exhibit E attached hereto). Then, following the vote it was widely noted that the voters' decision was based on the concern over the resolution of Claremont. - (See Exhibit B).

It was precisely the uncertainty created by the fact that local property taxes to support education would be unconstitutional as of April 1, 1999 (Claremont v. Governor) and concern about the adverse impacts this uncertainty would have on town and district meetings that lead the Legislature to hastily draft and pass Chapter 2:3 in January, 1999. (See comments of Maura Carroll, p. 8, Dean Mitchner, p. 10 and 13, House Finance Committee Minutes, January 20, 1999).

Of particular note in this regard is the discussion between Chairman Neal Kurk and Dean Mitchner on page 11 of the House Finance Committee minutes in which Chairman Kurk posses the following example:

"The school district votes a budget at $10 million in March. Claremont comes out. There are some problems with the budget. There is a special meeting in the summer and the school board says we would like to increase the $10 million to $15 million because of the extra money we got from the Claremont solution and we would like to spend that to improve education in our community. Under this language, would the district meeting in the summer be able to vote that $15 million budget an increase of $5 million over what they voted in March?"

To which Mr. Mitchner responds,

"Your specific question refers to the ability of the district meeting to alter their budget and if they so choose to raise it and I would say yes, that they would have that authority."

In further answer to the question Mr. Mitchner added,

"I believe that the issue here is really one of many districts that I can think of where, especially in cooperative cases, there may be concerns within one community that what may happen to their taxes or their share of budgets, depending upon what the solution to Claremont is, and there might be a reluctance for them to proceed forward with adopting a budget when they feel there is a question as to how that money would be raised. This would allow them to proceed forward and say if there was a major change in how the money is to be raised to support the budget that we adopt that we can convene-reconvene a meeting and discuss those issues and hammer out what we think the problems might be. I think that is the real intent in what will happen with this language in the bill."

The scenario presented by Mr. Mitchner is precisely what occurred in Oyster River. Voters were asked to revisit the school's budget, a portion of which was the bond that had been defeated due, in part, to uncertainty over education funding.

The passage of HB 117 (Chapter 17) resolved the education funding crisis and removed the uncertainty for District voters. Slowly the tax impact of the largest increase in State educational funding in the history of the school district crystallized. The decision to go forward with a bond issue in November that had seemed unduly complicated in March due to the as yet unknown solution to the Claremont lawsuit was consequently an issue raised by the resolution of Claremont.

II. THE LEGISLATIVE HISTORY SUPPORTS A BROAD READING OF CHAPTER 2:3

The Legislature's action in adopting Chapter 2:3 to authorize municipalities to hold special meetings was taken to address the fact that district and town meetings might be adversely affected by the uncertainty that prevailed as a result of Claremont. (See transcript of House Finance Committee, January 20, 1999). Once a constitutional system for funding education was established, the decision on whether to take on new projects that might have seemed unwise at the annual meeting when the uncertainty prevailed could be revisited as a result of the legislation without the need for court approval.

House Bill 117 (1999 Chapter 17), the legislative resolution to Claremont, fundamentally restructured the funding of public education in New Hampshire. In Oyster River, once HB 117 was adopted the District learned it would receive an additional $3.5 million in aid for the foreseeable future. The issue of revisiting the schools budget, specifically the bond issue, that might have been considered unwise before a constitutional solution to funding education was reached, was directly raised by the resolution of Claremont.

Just like the citizens in Merrimack who were allowed to consider a building project that had been considered before (albeit with a one-time payment instead of a bond) see, Merrimack Citizens v. Merrimack School District, Hillsborough Cty. Super. Ct. - Southern, Case No. 99-E-0326, voters in Oyster River were asked in this case to consider a project that had been rejected at a time when uncertainty over education funding in the District was pervasive. In this case the ultimate resolution to Claremont provided substantial and lasting tax relief to the District's towns and created an issue that 3001 Oyster River voters had a say in determining was a "necessary" outgrowth of Claremont. The voters' action to appropriate additional money by approving the bond was, in this light, plainly within the broad legislative brush of the language "any issue raised by the resolution of Claremont."

The court's ruling here makes it difficult to imagine that any issue in any district could meet the court's interpretation of being "raised" by the resolution of Claremont. It also voids the action taken by over 60 percent of the 3001 registered voters that determined the bond was necessary. The court has construed the phrase at issue in connection with RSA 197:3 as a legislative determination that the resolution of Claremont will presumably create "emergency" situations for many school districts and that, therefore, to be a qualified action the issues at the meeting had to arise with urgency from the aftermath of Claremont. The resolution of Claremont was not, however, what the Legislature was concerned with when it passed Chapter 2:3. Rather, it was the lack of a resolution of Claremont by the time of the February and March meetings of 1999 in both towns and school districts that the Legislature was concerned would create a crisis. It was specifically the uncertainty in voters minds and the possibility of the disruption at town and district meetings and that "bear bones budgets" might be adopted that concerned the Legislature. (See House Finance Committee Minutes, January 20, 1999). Why else would towns have been permitted to call special meetings along with school districts? How could a town ever have an issue raised by Claremont if the legislation was not intended to deal more generally with the uncertainty caused by Claremont?

The legislative history is clear. Most believed that after Claremont towns and school districts would have additional revenue that they could spend in order to improve education in their communities. It was precisely that possibility and the concem that the uncertainty about the resolution of Claremont by the Legislature would negatively impact actions taken at district and town meetings that was contemplated by Chapter 2:3 and by the subsequent legislation HB 300 Chapter 65:7 VI that specifically allowed towns and districts to make additional appropriations at special meetings called under Chapter 2:3. No necessity for an emergency or an urgent situation was required by the legislation. The legislators intentionally left the language of the act vague. They called it "sui generis" and put their trust in the fact that voters who would be properly warned could decide for themselves what action to take at a special meeting. (See, Rep. Chandler's comments, p. 13, Legislative History).

Contrary to the court's ruling, the language of Chapter 2:3 was not as limiting as the court found. Certainly if a town or district received the same funding after the resolution of Claremont and could not show uncertainty in the voters actions in February or March, they might be limited in the action they took at a special meeting. But for districts and towns that received huge increases in state aid and that were plagued by uncertainty at the time of the March meeting, there was virtually no limit under the legislation on what could be done.

In fact, in the specific discussion by the Legislature of the language "any issue raised by the resolution of Claremont" that took place at the House Finance Committee, Representative Vaughn asked if the language might be revised to be limited somewhat because "any issue could be raised". To which the sponsor, Peter Burling explained that to be more detailed would leave out "the one thing that actually does happen." Then, Chairman Kurk asked Representative Burling the question, "what things could not be brought up by a subsequent meeting?" To which Mr. Burling responds, "...I suppose almost anything could be arguendo included in the resolution of Claremont." Chairman Kurk then responds, "I concur that we are going to have a second school district meeting and the language 'to address any issue raised by the resolution of the Claremont lawsuit' really is irrelevant, that there is nothing that the second meeting couldn't do." (See pas. 3-4, House Finance Committee Minutes, January 20, 1999).

Consequently, the choice of "any issue raised by the resolution of the Claremont lawsuit" was seen by the Legislature in the testimony before the House Finance Committee not as words of limitation but as words that were intentionally left broad enough to allow both towns and districts to address issues that came before them in this year of a transition between two very distinctly different funding systems to support education. A broader reading of the statute is therefore warranted.

The Oyster River School District in this case simply relied on the Legislature's own expression of intent that there would be no restrictions on the ability of a second meeting in holding its second meeting. It also relied on the position of the Governor with respect to calling and holding the meeting. (See Exhibit F attached hereto). It also relied on and consulted with the Department of Revenue Administration which has since approved the District's appropriation made at the special meeting in accordance with RSA 21-J:35 and certified that all appropriations have been made in a manner which is consistent with the procedural requirements established by law. (See Exhibit G attached hereto). And it relied on Bond Counsel's approval of this action. Each of whom in turn independently relied on the plain language of Chapter 2:3. Given the clear legislative record, the Court should reconsider its decision and deny the Petitioners request to void the vote of over 3001 citizens of the District.

The voters in the Oyster River School District were faced in March 1999 with a serious space needs issue at the high school. The District's accreditation had been placed on warning status. The student population exceeded the building's capacity. The modular classrooms at the high school were continuing to cost the District dearly and disrupt the students' school day. Into this mix, as they voted on the bond, voters faced the prospect that come April, taxes to support education would be unconstitutional and the legislative solution to the funding crisis would forever change the way education was funded. Their uncertainty about the future negatively impacted their March action. Once a new funding mechanism was passed by the resolution of Claremont giving the District towns an unprecedented increase in State aid, the first issue raised in the District was to take a new look at the affordability of the District's necessary capital improvements. Over 3001 voters participated in approving the bond at the November 16 special meeting. The meeting was well publicized and well attended. The voters' actions should not be undone based on a narrow interpretation of Chapter 2:3.

Respectfully submitted this 5th day of January 2000.

THE OYSTER RIVER SCHOOL BOARD,
By Their Attomeys,
Soule, Leslie, Kidder, Sayward & Loughman
By: [signed]
Gordon B. Graham
220 Main Street
Salem, NH 03079
(603) 898-9776
N.H. Bar No. 981

I hereby certify that a copy of the foregoing Memorandum in Support of Motion to Reconsider has this day been forwarded to Plaintiffs counsel, Anthony McManus at 100 Central Avenue, Dover, NH 03820.

[signed]
Gordon B. Graham

Last update on 8-Jan-00 at 11:46 PM.

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