Supreme Court rules SWEPT tax constitutional, settling one school funding issue

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Supreme Court Justices Patrick Donovan, Gordon MacDonald, and Melissa Countway hear oral arguments in Rand v. State of New Hampshire, on Nov. 13, 2024. (Photo by Ethan DeWitt/New Hampshire Bulletin)
New Hampshire's Statewide Education Property Tax is equal and uniform and does not violate the New Hampshire Constitution, the state Supreme Court ruled Tuesday, in a blow to state taxpayers who had sued the state and alleged unfairness.
In a 3-1 decision, the court held that the tax, known as the SWEPT, is administered fairly and evenly by the Department of Revenue Administration, even though wealthier towns might collect more than they need for their schools and keep the excess.
'Accordingly, regarding the 'excess SWEPT' issue, we hold that the SWEPT scheme is constitutional under Part II, Article 5 because it is 'administered in a manner that is equal in valuation and uniform in rate throughout the State,'' wrote Chief Justice Gordon MacDonald in the majority opinion.
The SWEPT is a mandatory process in which towns collect property taxes to pay for their schools. Under law, the state sets a goal each year for New Hampshire cities and towns to collect a combined $363 million, and each year the Department of Revenue Administration sets a tax rate per $1,000 of property value that towns must collect.
But that statewide tax rate typically results in towns with higher property values collecting far more from the SWEPT than towns with lower property values, and sometimes more than is needed to fund their schools. When the tax was enacted in 1999, those wealthier towns were required to relinquish any excess SWEPT revenues to the state to be redistributed to needier towns through the state's adequacy formula. But in 2011, then-Gov. John Lynch signed a law to allow those towns to keep the excess, after pushback by some communities that considered themselves 'donor towns.'
Plaintiffs in the lawsuit, Rand v. State, had argued that because the current system allows wealthy towns to collect more in property taxes than they need, and because those towns can use the excess to lower the overall percentage of property taxes paid, the tax is neither equal nor uniform in practice. Residents of towns with lower property values pay much higher local property tax rates as a percentage than those in wealthier towns, plaintiffs said.
Lawyers for the plaintiffs — who included Natalie LaFlamme as well as John Tobin and Andru Volinsky, two attorneys on the winning side of the landmark Claremont school funding decisions in the 1990s — had brought a motion for 'declaratory judgment' to the Supreme Court. That motion was intended to allow the Supreme Court to rule quickly on the constitutionality of the SWEPT tax before the rest of the case receives a hearing in superior court, in order to lay questions about the SWEPT tax to rest.
The court did put the question to rest Tuesday, but not in the plaintiffs' favor. MacDonald held that the SWEPT is administered evenly because the Department of Revenue Administration applies the same flat tax rate each year to all cities and towns, wealthy or poor. Whether those towns keep the excess revenue or not, and whether some towns raise enough to pay for schools or not, does not affect whether the underlying tax is unequal and does not make it unconstitutional, MacDonald wrote.
In doing so, MacDonald dismissed evidence from an expert indicating the difference in effective property taxes between towns.
'The plaintiffs do not dispute that under the SWEPT, as administered, taxpayers are actually assessed at a uniform rate. That concludes the constitutional inquiry,' MacDonald wrote. 'The 'effective rates' in the expert's data reflect, at most, an indirect effect of municipalities retaining excess SWEPT revenue, as the statutory scheme permits. Theoretical indirect effects of the scheme on municipalities are not relevant to the analysis under Part II, Article 5.'
Associate Justices Melissa Countway and Patrick Donovan concurred with MacDonald. But Senior Associate Justice James Bassett dissented on the question of the constitutionality of SWEPT.
Responding to MacDonald, Bassett argued that under SWEPT, taxpayers in poorer towns do face disparities in taxation compared to those in wealthier towns.
'The impact of the SWEPT scheme on taxpayers in excess SWEPT communities is anything but 'theoretical' or 'indirect': the effective SWEPT rate reduction those taxpayers enjoy is real and direct,' Bassett wrote. 'The impact of the SWEPT scheme on taxpayers in other communities that do not generate excess SWEPT is also real and direct: those taxpayers enjoy no comparable reduction in their effective SWEPT rate.'
The fifth associate justice, Anna Barbara Hantz Marconi, has been on administrative leave from the court since July 2024, pending a criminal case against her for allegedly interfering with the criminal investigation of her husband.
The decision overrules parts of an earlier decision by Rockingham Superior Court Judge David Ruoff, who ruled in 2023 that the SWEPT was illegal.
The ruling does not end the Rand case; it merely answers plaintiffs' attempts to receive a declaratory judgment on SWEPT. The rest of the Rand case alleges that New Hampshire's adequacy formula, which currently gives a minimum of $4,182 per student to public schools that need aid, is far too low to pay for an adequate education and is unconstitutional.
The court did not rule on that question Tuesday. But it is currently considering a different school funding case, Contoocook Valley School District v. New Hampshire, in which a number of school districts have also alleged that the adequacy formula is too low to provide an adequate education. Oral arguments in that case, known as the ConVal case, took place at the Supreme Court in December. Ruoff has also ruled that the state's formula is unconstitutionally low.
The Supreme Court's expected ruling in the ConVal decision could affect how the rest of the Rand lawsuit plays out in superior court, now that the constitutionality of SWEPT has been affirmed by the high court. In an order sent in October, the court indicated that it is unlikely to overturn the Claremont decisions, in which the Supreme Court established the constitutional requirement that the state of New Hampshire ensure an adequate education.
Tuesday's ruling did include a partial victory for plaintiffs. The court held that use of 'negative tax rates,' in which the Department of Revenue Administration allows unincorporated towns that don't have school districts to offset their SWEPT tax with negative rates to effectively raise no SWEPT revenue, is unconstitutional.
But the court did not direct the state to stop setting negative tax rates. Instead, it said the process for doing so, and fixing the unconstitutional law, is in the hands of the legislative and executive branches.
'Resolving the constitutional infirmity in the State's practice of setting negative local tax rates is the responsibility of the other co-equal branches of government,' MacDonald wrote.