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Judge asked to recuse himself from education funding case

By KIMBERLEY HAAS
Union Leader Correspondent

March 21. 2016 8:31PM
Judge Mark Howard was asked to recuse himself on Monday from hearing a civil lawsuit against the state. The city of Dover is suing the state of New Hampshire, and Howard represented an intervenor in the lawsuit two years ago for an unrelated matter. (KIMBERLEY HAAS)

DOVER — A judge was asked on Monday to recuse himself from a case about educational funding that will affect a number of school districts throughout the Granite State.

Judge Mark Howard told attorneys from the city of Dover and the state that he represented Senate President Chuck Morse, a Republican who serves the 22nd district, in an unrelated matter two years ago. Morse, along with Republican House Speaker Shawn Jasper are intervenors in the city of Dover’s lawsuit against the state regarding the constitutionality of its current educational funding formula.

Starting in 2009, the state limited any increase in state funding, so a town could receive no more than 108 percent of the previous year’s funding from the state. The cap was intended to make year-to-year funding more consistent and predictable.

According to an article previously published in the New Hampshire Union Leader, in 2015 the state voted to greatly increase that cap. However, fast-growing school districts — like Dover — argue they have been cheated out of adequate funding.

It is estimated Dover was eligible for, but never received, a total of $14,297,423.

On Monday, Howard said he represented Morse for a brief period of time.

“I have had no contact with him since, but under the code of judicial conduct, I felt it was my duty to inform you of that,” Howard said, adding that he did not think his representation of Morse would sway his opinions on the facts presented by both sides.

Howard claims that he was not aware of Morse’s actions, even though he and Jasper intervened in October, saying that he did not become aware of the potential conflict until this past weekend, when he reviewed the case file.

Attorney Andru Volinsky, who is working on Dover’s behalf, was disappointed in the revelation, saying it is getting late in the city’s fiscal year.

“Lawyers who have been working on this case for many years conceded that the cap is unconstitutional,” Volinsky said.

The New Hampshire Attorney General’s office has conceded that a disputed portion of the educational funding law is unconstitutional. The New Hampshire Supreme Court has ruled against caps and discounts, according to a an article previously published in the New Hampshire Union Leader.

Dover is the only city to sue the state over the current educational funding formula, but if they win, a number of other communities in New Hampshire would be affected. That includes Bedford, Durham, Gilmanton, Hampton Falls, Hooksett, Windham, Pelham and Orford, according to the article.

In paperwork sent to the state Department of Education in 2012, Dover officials said they are one of 37 communities statewide affected by the alleged inequity.

On the flip side, poorer cities, such as Manchester, benefit from the compensation stabilization, which limits the amount that their adequacy grants can be reduced due to declining enrollment.

Since Howard cannot hear the case, it may be moved to another courthouse for trial.


Courts Education Orford Gilford Bedford Hooksett Manchester Pelham Windham Dover Durham Hampton Falls