Sirrell v. State , 146 N.H. 364 ( 2001 )

BROCK, C.J., and BRODERICK, J.,

dissenting. Because the trial court’s findings in this case are supported by the evidence and not erroneous as a matter of law, we would affirm its analytically sound and thoughtful ruling that the statewide property tax as currently administered violates Part II, Article 5 and Part II, Article 6 of the State Constitution and remand the issue of remedy. We therefore respectfully dissent.

I. Burden of Proof

The majority today adopts a new standard, not even advocated by the State in the trial court, requiring proof of a widespread scheme of intentional discrimination to prove a violation of Part II, Article 5. In doing so, the majority raises the bar significantly for taxpayers challenging unequal and unfair taxing schemes. We view this heightened standard as potentially “leading to frustration of the document upon which our government rests.” Opinion of the Justices (School Financing), 142 N.H. 892, 903 (1998). “[Tjhose who crafted the words of Part II, Article 5 had lived under the taxation policies of the British Crown [and] [i]t undoubtedly was the specter of unfair taxation that prompted the requirement that taxes be both proportional and reasonable.” Id. In keeping with this near sacred trust, we must be vigilant not to allow the clamor of the day to drive, define or undermine cherished constitutional protections.

The principles of proportionality and uniformity in taxation exist to protect the citizens of this State from arbitrary taxation. It is for the legislature to enact schemes of taxation that comport with the constitutional limitations, not for the taxpayers to bear an undue burden to protect themselves from violations of fundamental principles. See State v. Express Co., 60 N.H. 219, 237 (1880) (“The citizens are entitled to require that the legislature itself shall cause all public taxation to be fair and equal in proportion to the value of property, so that no one species of property may be unequally or unduly assessed.” (quotation omitted)).

“[T]he constitution enforces the idea that the sovereignty is in the people, and that all the power not expressly delegated to the legislature was reserved to the people.” Id. at 235. “While the power of the legislature to raise a revenue for the support and defence of the government is absolute, the way in which it may be exercised is specifically set forth, and the method designated must be followed.” Id. For well over one hundred years, cases interpreting the practical meaning of Part II, Article 5 have affirmed its restriction on the scope of the power to tax.

Seeking a declaration that the statewide property tax, as applied, is unconstitutional, an injunction against further collection of the tax, and reimbursement of monies collected under the tax, the plaintiffs filed a petition for declaratory and injunctive relief. Given that legislative acts are presumed constitutional and will not be declared invalid except on “uneseapable grounds,” Niemiec v. King, 109 N.H. 586, 587 (1969) (quotation omitted), the plaintiffs in this case were already faced with a heavy burden to demonstrate that the property tax statute, as applied, is unconstitutional. The burden of proof associated with these requests differs and we disagree that in order to establish, as a matter of law, that the tax as applied violates the constitutional requirements of proportionality and equality these plaintiffs were required to show that they were individually harmed by the practical operation of the statewide property tax.

The statute governing declaratory relief states that “[a]ny person claiming a present legal or equitable right or title may maintain a petition against any person claiming adversely to such right or title to determine the question as between the parties, and the court’s judgment or decree thereon shall be conclusive.” RSA 491:22, I (1997). The purpose of the declaratory judgment statute “is to make disputes as to rights or titles justiciable without proof of a wrong committed by one party against the other.” Faulkner v. Keene, 85 N.H. 147, 149 (1931).

The remedy of declaratory judgment affords relief from uncertainty and insecurity created by a doubt as to rights, status or legal relations existing between the parties. . . . Petitions for declaratory relief must be liberally construed so as to effectuate the evident purpose of the law.

Although commonly placed on the equity docket, . . . petitions for declaratory judgment are sui generis as they partake of some of the characteristics of both law actions and equity proceedings. . . . They provide relief when other proceedings would be inadequate. The legislature created declaratory relief as a means for parties to determine their legal or equitable rights at an earlier stage than would be possible if the matter were pursued in other established forms of action.

Radkay v. Confalone, 133 N.H. 294, 296-97 (1990) (quotations, citations and brackets omitted). We have long held that “[a] petition for a declaratory judgment is particularly appropriate to determine the constitutionality of a statute when the parties desire and the public need requires a speedy determination of important public interests involved therein.” Chronicle &c. Pub. Co. v. Attorney-General, 94 N.H. 148, 150 (1946).

In contrast to abatement cases, we find no requirement in our law that plaintiffs challenging the constitutionality of a statute through a declaratory judgment action must demonstrate that they suffered actual, individual pecuniary harm as a result of the alleged unconstitutionality. Compare Appeal of Town of Sunapee, 126 N.H. 214, 217 (1985) (to receive abatement of taxes, taxpayer must establish that his property is assessed at higher percentage of fair market value than percentage at which property is generally assessed in the town), and Stevens v. City of Lebanon, 122 N.H. 29, 32 (1982) (in abatement action plaintiff has burden of proving that he is paying more than his proportional share of taxes), with Delude v. Town of Amherst, 137 N.H. 361 (1993).

In Delude v. Town of Amherst, cited by the majority to support its conclusion that the statewide property tax, as applied, cannot be declared invalid because the plaintiffs failed to prove individual harm, we noted that the “harm” requirement is not satisfied if the plaintiffs set forth merely theoretical controversies. See Delude, 137 N.H. at 363. The controversy before us in this case, however, is far from theoretical.

The plaintiffs in Delude sought a determination that a Town of Amherst zoning ordinance relating to mobile homes violated State statute, as well as the equal protection and due process provisions of the State Constitution. Id. at 362. Prior to applying for approval to the town planning board to build a manufactured housing park, the plaintiffs concluded that their application would probably be denied and, therefore, elected to file a petition for declaratory judgment based on “sundry vague and conclusory allegations.” Id. at 363-64.

This court agreed that the plaintiffs failed to present facts which demonstrated a present legal or equitable right to which the town was asserting an adverse claim. Id. at 364. Instead of filing an application for the town’s approval of their plan or applying for a variance as the town had suggested, “[t]he plaintiffs merely speculated as to what the town would do if they were to file an application for approval, or if they were to apply for a variance.” Id. at 364. Consequently, there was no present legal or equitable right presented by the plaintiffs upon which to invalidate the challenged statute. Unlike Delude, of course, the case before us involves a “justiciable controvers[y] of sufficient immediacy and reality as to warrant action by the courts.” Id. This is the “harm” required to give grounds for judicial relief. There is nothing hypothetical about New Hampshire’s statewide property tax or the manner in which it operates.

The issue of actual, individual pecuniary harm is, however, relevant to the scope of the remedy to which the plaintiffs may be entitled. Where, as here, the plaintiffs have shown that the statewide property tax, as applied, contravenes the Constitution, they are not entitled to relief unless they show that as a result of the statewide tax, they suffered an injury. As the plaintiffs’ brief explains, the parties understood that the trial court’s decision on the constitutionality of the statewide property tax, as applied, would be appealed to this court prior to a consideration of an appropriate remedy. While evidence of actual harm would be relevant to remedy, it is premature at the declaratory judgment stage. We would conclude, therefore, that the plaintiffs satisfied all existing requirements imposed on a party seeking a declaration that the statewide property tax, as applied, is unconstitutional.

The majority, however, adopts the position that in order for the plaintiffs to prevail on their declaratory judgment petition, they had to establish individual harm from the practical operation of the statewide property tax by proving a “widespread scheme of intentional discrimination.” We are concerned that the majority has set the standard so high that it is no longer practical for taxpayers to challenge the constitutionality of a tax under Part II, Article 5. In doing so, the legislature has been provided a degree of protection never envisioned by the drafters of our State Constitution, thereby allowing for “precisely the kind of taxation and fiscal mischief from which the framers of our State Constitution took strong steps to protect our citizens.” Claremont School Dist. v. Governor, 142 N.H. 462, 465 (1997) (Claremont II).

Of equal concern is that the cases relied upon by the majority, in our judgment, do not support this heightened standard. To support its new standard, the majority places considerable reliance on Austin v. State Tax Comm’n, 114 N.H. 137 (1974), which addressed the constitutionality of a commuter tax on nonresidents under the Privileges and Immunities and Equal Protection Clauses of the Constitutions of the United States and New Hampshire. See id. at 139-40 (relying on configuration of Maine statute to find New Hampshire statute constitutional). The decision, however, is based completely on standards established under the federal Privileges and Immunities Clause, thereby having no practical application to an analysis of a statewide property tax, as applied, under Part II, Article 5 of the New Hampshire Constitution. See id. Furthermore, Austin was reversed by the United States Supreme Court because the commuter tax conflicted with the principle of comity. See Austin v. State of New Hampshire, 420 U.S. 656, 668 (1975) (constitutionality of New Hampshire statute affecting nonresidents may not depend upon present configuration of Maine statute).

In Austin v. State Tax Comm’n, 114 N.H. 137, we found that the evidence presented did not “create the substantial difference in treatment which would sustain plaintiffs’ burden in proving the tax discriminatory to the point of being arbitrary and unreasonable.” Id. at 140 (quotation omitted). Because the tax was not discriminatory in its practical operation, we held that it did not violate the Privileges and Immunities Clause or Equal Protection Clause of the Federal or State Constitutions. See id. at 141.

Reversing this decision, the United States Supreme Court concluded that “[w]hen a tax measure is challenged as an undue burden on an activity granted special constitutional recognition, . . . the appropriate degree of inquiry is that necessary to protect the competing constitutional value from erosion.” Austin, 420 U.S. at 662. The Court found the tax on nonresidents discriminatory and at odds with the principles of comity embodied in the Privileges and Immunities Clause. See id. at 665-68. Thus, the harm the tax measure posed to the constitutional principle of comity prevailed over the State’s contentions that the ultimate burden imposed on nonresidents was not more onerous in effect than that imposed on residents. See id. at 665-66.

The rule from these cases is that we should be vigilant in applying the appropriate degree of scrutiny to a tax measure that threatens a constitutional right. Here, the right threatened is the “special constitutional recognition” that proportionality and uniformity in taxation will protect the citizens of this State from arbitrary taxation. The focus should be to preserve a meaningful avenue to challenge arbitrary taxation, not to create impenetrable barriers that insulate tax schemes from review. Therefore, we believe that the majority errs by relying on Austin to form the foundation for a heightened burden of proof that will have the unfortunate effect of eroding the rights guaranteed under Part II, Article 5.

Furthermore, the majority relies on several intermediate appellate court decisions from other States. We find these cases of little value in deciding the constitutionality of a New Hampshire statute “because the constitutional provisions at issue contain language dissimilar to ours and were adopted under circumstances different from those existing in New Hampshire in the 1780s.” Claremont School Dist. v. Governor, 138 N.H. 183, 186 (1993) (Claremont I). Nevertheless, upon close reading, these cases largely support our conclusions in this case.

New Mexico, Kansas and Montana have comprehensive statutory tax plans to ensure uniform and equal taxation among taxpayers. These States are one step beyond New Hampshire’s current state of affairs, because New Hampshire presently lacks a comprehensive mechanism to effectively and fairly carry out statewide assessments. As such, it is more appropriate to examine cases from these jurisdictions that precede those cited by the majority.

For instance, in Kansas, detailed statutory guidelines assist in determining whether uniformity and equality is met by assessments of real property. See Appeals of Andrews, 851 P.2d 1027, 1031-32 (Kan. Ct. App. 1993). Indeed, assessments ‘“which take into account only some of the pertinent statutory factors . . . cannot be upheld where evidence indicates there has not been a uniform and equal rate of assessment and taxation in the [taxing district].”’ Id. at 1032 (quoting Bd. of Johnson County Comm’rs v. Greenshaw, 734 P.2d 1125, 1131 (Kan. 1987)). New Hampshire lacks such comprehensive guidelines by which to evaluate whether taxation is uniformly and equally assessed. In fact, in the case before us, the plaintiffs proved the extraordinary amount of discretion afforded the department of revenue administration (DRA) in determining what information to include in the State’s equalization process. Under the Kansas Supreme Court rule, we believe that the evidence presented in this case “indicates there has not been a uniform and equal rate of assessment . . . .” Bd. of Johnson, 734 P.2d at 1131 (emphasis added).

The New Mexico intermediate court in Hannahs v. Anderson, 966 P.2d 168 (N.M. Ct. App. 1998), cites a rule of law established by Ernst W. Hahn, Inc. v. County Assessor, 592 P.2d 965, 969 (N.M. 1978). In Hahn, the New Mexico Supreme Court stated that

[a] uniform method of taxation requires that each reappraisal be part of a systematic and definite plan which provides that all similar properties be valued in a like manner. . . . The constitutional defect in this case is the absence of any systematic and definite plan for the reappraisal of all lands in [the county]. Without such a plan, there is no assurance of uniformity of appraisal method or of sequential selection of property for reappraisal.

Id. (quotation omitted). The uniformity clause of the New Mexico Constitution “requires uniformity of property taxation within a county as well as statewide uniformity of assessments.” Id. In Hahn, this sole defect, the absence of a comprehensive county plan for reappraisal, was enough for the New Mexico Supreme Court to find taxation without such a plan unconstitutional. See id.

In Patterson v. State, Department of Revenue, 557 P.2d 798 (Mont. 1976), the Supreme Court of Montana addressed the constitutionality and legality of a cyclical five-year revaluation plan of taxable property. We reiterate, however, that this situation is one step beyond the current system in New Hampshire, where property valuations are largely outdated and are not the product of a systematic plan. We turn, instead, to Larson v. State, 534 P.2d 854 (Mont. 1975), the foundation for Patterson. In Larson, the absence of a statewide appraisal plan resulted in a lack of uniformity and equality of taxation between taxing districts. See id. at 858. The appraisal method employed in Larson was found to increase taxable valuations in one county to a level that exceeded valuations in other counties. See id. at 857. “The obvious result” was a disproportionate share of the tax burden placed upon one county over another. Id. at 857.

Finally, the majority cites Bettigole v. Assessors of Springfield, 178 N.E.2d 10, 15 (Mass. 1961), which cites Cheshire v. County Commissioners, 118 Mass. 386 (1875), for the proposition that “[p]ractically it is impossible to secure equality or proportion in the imposition of taxes but . . . the statutory aim should be towards that result, by approximation at least.” (Quotations and brackets omitted.) We recognize that Massachusetts is an exception to our general caution not to look to other jurisdictions in interpreting our Constitution. See Claremont I, 138 N.H. at 186 (citing McDuffy v. Secretary of the Executive Office of Education, 615 N.E.2d 516 (Mass. 1993)).

In Cheshire, the court ruled that the Massachusetts Constitution forbids unequal or disproportionate taxation “whether that discrimination is effected directly in the assessment or indirectly through arbitrary and unequal methods of valuation.” Cheshire, 118 Mass, at 389. The court found that the tax “directly and necessarily” produced disproportion in assessment and that “it is immaterial whether the effect upon the general distribution of the tax be great or small, it is equally in violation of the Constitution, and therefore not within the legitimate authority of the Legislature.” Id. Bettigole relied upon Cheshire in finding that a town’s assessment practices, resulting in discrepancies in taxing different classes of property, were “deliberate and intentional.” Bettigole, 178 N.E.2d at 15.

After Bettigole, Massachusetts amended its constitution and then passed legislation allowing classes of property to be taxed differently. See Macioci v. Commissioner of Revenue, 438 N.E.2d 786, 789 (Mass. 1982) (Macioci I). The commissioner of revenue, to assure uniformity and equality of taxation within each classification, adopted guidelines for valuation and assessment. See id. at 789-90. In Macioci I, a tax abatement case, the Massachusetts Supreme Judicial Court found that reliance upon an equalization study which was “sloppy” and utilized the mean, not the median, to arrive at its conclusions was illegal. See id. at 795-96. Further, the court ruled that the method followed by the tax commissioner and assessors “was illegal and improper in that it did not cause each sub-class of property in [the taxing district] to be factored to 100% of full and fair cash value.” Macioci v. Commissioner of Revenue, 500 N.E.2d 275, 277 (Mass. 1986) (Macioci II) (quotation omitted).

In discussing the appropriate remedy for the improper assessment of taxes under a specific statutory scheme, the court denied the relief requested for failing to demonstrate that the taxes were “wholly void.” Id. at 280. In Massachusetts, for a tax to be void under the specific statutory scheme, one must demonstrate a ‘“widespread scheme of intentional discrimination.’” Macioci I, 438 N.E.2d at 797 (quoting Sears, Roebuck and Co. v. City of Somerville, 298 N.E.2d 693, 695 (Mass. 1973)). The burden of proof “relates only to an action at law to secure adjustment of an excessive tax,” Sears, Roebuck and Co., 298 N.E.2d at 695 n.4 (emphasis added), and does not foreclose “[o]ther remedies to correct nonproportional assessment and assessment at less than 100% of full, fair cash value . . . [including] . . . declaratory and injunctive relief . . . .” Id.; see also D’Errico v. Board of Assessors of Woburn, 424 N.E.2d 509, 512 (Mass. 1981). The Massachusetts cases make it clear that the “widespread scheme of intentional discrimination” standard applies in determining, at the remedy phase of an abatement proceeding, whether a tax is wholly void. The standard is not applicable to a constitutional challenge of a New Hampshire property tax statute, as applied.

We conclude that the cases cited by the majority provide, at best, unstable footing upon which to adopt a new, stricter burden of proof in this case. We find no support in the case law for shifting protection away from core constitutional principles in favor of unduly insulating the legislature from legitimate scrutiny of enacted tax statutes. We are unwilling, two hundred and seventeen years after the adoption of the New Hampshire Constitution, to dilute the protection afforded by Part II, Article 5 simply because the legislature may have found it more expedient to implement the current tax system rather than take steps to bring the system into constitutional compliance.

II. Part II, Article 5

The majority implies that the plaintiffs’ case was an attempt to prove that some other taxpayers in the State are under-assessed as a result of the administration of the statewide property tax. We interpret the plaintiffs’ case as encompassing the much broader concern that under the statewide property tax, as applied, there is simply no basis upon which one could conclude that any taxpayer in this State is being taxed in accordance with the principles of proportionality, uniformity and equality.

The summary of the evidence in this case, so well presented in the majority opinion, describes the five main areas of concern with the current statewide property tax, including lack of standards for local assessments, lack of standards for exclusion of sales, lack of guidelines for choice of ratio, high CODs and lack of verification. Although we reject the standard of “widespread scheme of intentional discrimination” adopted by the majority, we believe that the evidence in this case is sufficient to satisfy it and conclude that the current property tax system is in “clear conflict with the Constitution.” Petition of Boston & Maine Corp., 109 N.H. 324, 326 (1969). As such it “must be declare[d] . . . inoperative because the Constitution, and not the statute, is the paramount law.” Id. (quotation omitted).

The evidence at trial showed that varying methods are used in each municipality across the State to establish property values upon which the tax is based and that some municipalities use current revaluation data while others rely on data that is decades old. This lack of a uniform standard for local assessments results in a system that is insufficient to establish equality among taxpayers across the State. “[E]ach taxpayer is entitled to have his property valued for taxation by the same standard as that of other taxpayers.” Bemis &c. Bag Co. v. Claremont, 98 N.H. 446, 450 (1954). “A change in either factor, the rate or the valuation, affects the product, which is the tax, in the same way; and in order that the tax may be equal and proportional, all property must be valued alike and taxed at the same rate.” Opinion of the Justices, 76 N.H. 609, 611 (1913).

Extensive testimony and other evidence demonstrated that when applied to a statewide taxing system, the equalization process upon which the State relies to achieve equity in taxation among towns is similarly deficient. It is undisputed that equalization has no effect on equality among taxpayers and the State’s expert emphasized that “equalization is not a cure for deficient assessment practices at the local level.” As the majority opinion explains, the annual equalization process is based on a ratio study which lacks any procedures for screening sales, produces such small samples that the reliability of the statistics are suspect, applies different ratios to equalize property across the State, and lacks quality control mechanisms to verify the accuracy of the statistical information upon which the DRA relies. The trial court concluded: “The entire process of equalization is based on multiple levels of inconsistent procedures and formulas, which as applied to individual taxpayers in the State, do not allow for an equal valuation of properties across the State.”

The majority reasons, however, that the absence of comprehensive statistical data is fatal to the plaintiffs’ claims because without such data the plaintiffs failed to prove that the flaws in the system “resulted in a systematic pattern of disproportionate taxation” or “produced such substantial inequality that the inequality must be deemed intentional.” We strongly disagree. First, statistical data is of little, if any, relevance to the issue of taxpayer-to-taxpayer inequality. Second, we think the majority underestimates the significance of the flaws in the system and their cumulative effect on the fairness of the tax.

All of the expert witnesses agreed that the equalization process only attempts to establish equity across towns and not taxpayers. The trial court concluded:

The fatal constitutional flaw of [the tax statute] is the State’s failure to acknowledge that the taxpayers in the State must have their property valued equally, rather than just the total property values being equalized across the towns. Equality across individual taxpayers is required to meet the Claremont mandates, that any property tax imposed be both “proportional and reasonable” and “equal in valuation and uniform in rate.” The focus must be on equality and uniformity across all individuals in the entire taxing district, not only across all towns within the taxing district. This is where [the statute] does not meet constitutional standards. As Commissioner Arnold testified, the legislature did not have the time nor the resources to re-work the entire New Hampshire tax system to comply with the Claremont mandate, so it adopted the past method of equalization that had been used for both the local and county tax systems, and applied a uniform rate.

Statistics are not necessary to prove the obvious: a tax system that fails to value property equally taxpayer-to-taxpayer, by its very nature, creates disproportionality.

By way of illustration, assume that the City of Concord consists of 259 neighborhoods. Within those neighborhoods, some establish property values based on full revaluations including full. physical inspection of all properties; some base value on physical inspection of only some of the properties in the neighborhood; other neighborhoods establish value by using the property assessments from the previous year and adjusting them by the inflation rate and sales that occurred within the neighborhood; and some neighborhoods simply take the previous year’s assessments and add or subtract value based on information reported by the property owners. Assume also that thirty percent of the neighborhoods have not adjusted values at all in over seven years. If the City of Concord issued property tax bills based upon these discrepancies in valuation of property throughout the neighborhoods, this court would not hesitate to conclude that such wide disparities in valuation violates the principle embodied in Part II, Article 5 that valuation methods employed must be uniform as to each taxpayer’s property in the taxing district. See Bemis &c. Bag Co., 98 N.H. at 450; Opinion of the Justices, 76 N.H. at 611; Opinion, 4 N.H. 565, 569 (1829).

Nonetheless, it is this very scenario which the majority upholds today. Under the statewide property tax, the State is comprised of 259 municipalities, or “neighborhoods,” each of which establishes property values for taxation by different methods. It is undisputed that seventy-one “neighborhoods” in the State have failed to update property values at all in at least seven years, in violation of both statute and Part II, Article 6 of the State Constitution. The majority does not explain how equality among taxpayers across the State cán be achieved when some taxpayers are taxed on property values established by full appraisals conducted within the previous year while others are taxed on property values established over seven years ago. We find it “unescapable” that such a tax scheme violates the constitution.

These significantly flawed property values form the basis for equalization and this flaw is exacerbated by additional defects present in that process, described by the plaintiffs’ expert as “one of the most deficient in the nation.” For example, a ratio study is conducted comparing the locally assessed property values submitted by each town to the sales prices of all properties sold in each town in the prior year. The DRA, however, has complete discretion in choosing the sales information to be included in the ratio study and there are no set procedures for including or excluding sales.

The majority points to a lack of evidence that the use of different ratios to equalize the value of property in different towns results in failure to tax property owners at full market value. As the State’s expert testified, however, the ratio chosen should be used consistently throughout the taxing district, which in this case is the entire State. This is consistent with our case law. See Appeal of Andrews, 136 N.H. 61, 64 (1992) (“In order to achieve proportionality all taxpayers must be assessed at the same ratio.”). DRA employee Linda Kennedy acknowledged in her testimony that the choice of the ratio affects the equalized valuation, which in turn affects the tax assessed on each taxpayer. In addition, the DRA has complete discretion in choosing the ratios used to equalize different towns and although that choice affects the tax assessed, there is no set ratio, formula or procedure for determining which ratio to apply.

As we cautioned in Claremont II, “[t]o the extent that the property tax is used in the future to fund the provision of an adequate education, the tax must be administered in a manner that is equal in valuation and uniform in rate throughout the State.” Claremont II, 142 N.H. at 471. The plaintiffs in this case proved that under the statewide property tax, different methods are used to establish values within each town and there is no comprehensive process in place for the DRA to verify that assessments are being performed correctly and accurately at the local level. There is nothing fair or just about taxing property owners in one town on values determined in the current year and taxing property owners in another town on values determined seven or more years earlier. See id.

Pursuant to Part II, Article 5, all taxpayers in this State are entitled to proportional taxation which requires that all property in the State be valued alike. The undisputed evidence at trial was that this is not being done. We think it matters little whether this clear constitutional violation is a result of intentional discrimination in adopting the taxing scheme or not. Given the extensive flaws in the system, we would agree with the trial court’s conclusion that the statewide property tax scheme is constitutionally deficient and that the plaintiffs met their burden of proof.

III. Part II, Article 6

The majority concludes that the failure of approximately seventy municipalities to perform a full revaluation, partial revaluation, or update of property values since at least 1994 is a violation of Part II, Article 6. The majority holds, however, that because the plaintiffs failed to prove that this acknowledged violation resulted in disproportionate taxation, it does not render the statewide property tax, as applied, unconstitutional. In requiring specific proof of disproportionality, the majority diminishes the protection embodied in the constitution and, in our opinion, mistakenly interprets the intent of this provision.

The years from 1784 to 1833 saw a gradual change from taxation in proportion to income to .taxation in proportion to property, and from fixed valuation according to property type to appraisal of individual property to determine- value. “Since 1833, the legislative and judicial construction of the constitution has been that an equal division requires a proportional valuation of all property taxed and the assessment of all at the same rate.” Opinion of the Justices, 76 N.H. 588, 591 (1911). While “the full effect of the constitutional provisions was probably not at first appreciated,” since the early 1800s, “[t]he universal understanding has been that all property must be assessed upon the same percentage of its value.” Id. at 593-95.

Cases interpreting the meaning of Part II, Article 6 have been clear and consistent. In Article 6, “the doctrine of the equality of taxation is affirmed, and measures are provided by which it may be ensured.” State v. Express Co., 60 N.H. at 236. “The principle of just equality is therefore the governing one by which the validity of every tax levied by the legislature is to be determined. This equality can be secured only by uniformity in levying the tax, and a periodical valuation of the estates of every citizen.” Id. at 237 (quotation omitted). “Article 6 . . . was intended to secure proportional assessments by requiring frequent revaluations.” Thompson v. Kidder, 74 N.H. 89, 95 (1906).

While Part II, Article 5 restricts the legislature’s authority to raise revenue through taxation to taxes which are proportional and reasonable, Article 6 regulated that authority by requiring that such taxes be laid according to a valuation on all estates made, at least, within the past five years. Article 6 is an explicit limitation upon the general terms contained in Article 5 and therefore, “it must be construed to control the general terms, for otherwise it will be merely idle and nugatory.” Opinion, 4 N.H. at 567.

The majority suggests that the statutory mechanism in place for annual assessments “surpasses” the requirement of Part II, Article 6. The State argued at trial that the combination of the current system of annual assessment and equalization is sufficient to satisfy the constitutional requirement of periodic valuation. We disagree with both of these propositions.

First, evidence at trial showed the stark differences among communities in the methods used to establish values within each town. These methods range from full revaluations and physical inspections to annual “pick-ups,” or updates, which take the previous year’s assessment and add or subtract value based on the information reported by property owners. “Equality in the burden of taxation cannot exist without uniformity in the mode of assessment as well as in the rate of taxation.” Bemis &c. Bag Co. v. Claremont, 98 N.H. at 450. Every taxpayer must have his property valued for taxation by the same standard as every other taxpayer. See id.

Second, the evidence presented was unequivocal that equalization is only intended to adjust property vhlues of a community as a whole, never values between individual taxpayers as is required by the constitution. The only way to achieve equity between individual property owners is to revalue each individual property. This is the principle recognized in Part II, Article 6. While equalization and local annual updating are methods which may maintain current property values for short periods of time, they fall short of satisfying the requirement of taking anew the valuations of the estates. Furthermore, evidence at trial underscored flaws in the current equalization system that raise serious doubt regarding the system’s ability to achieve proportionality and equality in the assessment of property taxes in a statewide system.

There are 259 cities, towns and municipalities (municipalities) in New Hampshire, of which twenty-six are “unincorporated areas,” which have little, if any, taxable property and are, therefore, not considered in statewide calculations. Evidence at trial established that of the remaining 233 municipalities, seventy-one have not completed any reassessment work, including full revaluations, partial revaluations or updates, since at least 1993. According to DRA figures, these towns comprise approximately $18 billion, or over twenty-seven percent of New Hampshire’s $67 billion total equalized property value.

In addition, 184 municipalities have not completed a full revaluation of taxable property since at least 1995. In fact, ninety-one, representing over thirty-six percent of the State’s total equalized property value, have not fully revalued their property in over a decade. DRA figures show that these 184 municipalities represent more than $51p billion, or over eighty percent of the State’s total equalized property value. Among those municipalities, Manchester, listed by the DRA as having a total equalized value of approximately $3.9 billion, last revalued its property in 1991; Salem, listed as having a total equalized value of $2 billion, last revalued its property in 1980; and Keene, listed as having a total equalized value of $1 billion, last revalued its property in 1971. Prom these figures, it is difficult to comprehend the conclusion reached by the majority that “the evidence was insufficient to show a systematic pattern of disproportionate taxation.” We are at a loss as to why these plaintiffs should be required to present any additional evidence in order to meet their burden.

The majority suggests that despite not having revalued its property in thirty years, the process used in Keene results in assessments that are within an acceptable range of market value. We believe that evidence at trial showed a different picture of the state of affairs in Keene. In 1999, the City of Keene hired a real estate appraisal and consulting service to review its valuation system. In an extensive report submitted to the City, the consulting firm noted that “approximately 16% of all the residential property assessments in the City . . . are likely missing significant taxable value. By any professional appraisal standard this is unacceptable. In terms of assessment equity, this simply means that some property owners are not paying their fair share of the City’s property wealth.” See Rollins v. Dover, 93 N.H. 448, 450 (1945) (“As any one’s payment of less than his share leaves more than their shares to be paid by his neighbors, his non-payment of his full share is a violation of their constitutional right.”). The report further states:

The City has not completed a citywide inspection of properties since the last revaluation in 1971. By any standard, 28 years since that last citywide inspection program far exceeds professional standards of practice. The City does not have complete and accurate information on all properties thereby foregoing a substantial amount of taxable assessed value. The net result is that the City’s tax rate is likely higher than it should be due to property inventory that is missing or listed incorrectly.

The fact that the City is able to maintain values close to market value is a tribute to the labor-intensive efforts of the Assessor’s staff to continually refine the valuation factoring program. However, this effort does not address the assessment equity problem that clearly exists due to the incomplete property inventory.

(Emphasis added.) Common sense dictates that similar conclusions may be drawn regarding the 183 additional municipalities that have not fully revalued their taxable property in at least seven years.

The plaintiffs’ expert testified at trial why periodic revaluation of property is critical.

The problem is that the characteristics and conditions that affect property are constantly changing. Change is one of the principles of appraisal. There is [sic] physical changes to property, garages are enclosed into living area, or carports are enclosed, people make additions . . . swimming pools and so forth, and then there’s also external changes to property, streets change, neighborhoods change, different — external factors that affect the property; a new park go [sic] in, can have a commercial encroachment going on and so forth. So as a way of updating the characteristics of the improvement or improvements and the surrounding factors that affect property, the data has to be updated periodically. As I said, the longer you let it go, the more problems that are going to arise in the data.

There is no fair standard under which one could conclude that the failure to fully update values of over eighty percent of the total equalized property value in the State can serve as the foundation for proportional and reasonable taxes. Even limiting the analysis to the seventy-one municipalities that have not completed any reassessments since 1993, we would find the fact that approximately thirty percent of this State’s municipalities have failed to perform any reassessment work on property representing over twenty-seven percent of the taxable equalized property value in the State shows a “systematic pattern of disproportionate taxation.”

Because the statewide property tax scheme as currently applied lacks uniformity in the methods by which municipalities assess the value of taxable property and bases the determination of taxable amounts on property that has not been revalued within a five-year period, we would affirm the trial court’s conclusion that the scheme violates Part II, Article 6 of the New Hampshire Constitution.

We note that despite our conclusion that the statewide property tax, as applied, is unconstitutional under both Part II, Article 5 and Part II, Article 6 of the State Constitution, we would not immediately enjoin the State from collecting taxes under this statute. Indeed, we would agree with the majority and allow the State until the current statute expires in January 2003 to redraft the statute and address its constitutional infirmities.

IV. Remedy

Because we would find the property tax unconstitutional, we would remand the case to the trial court for a determination of an appropriate remedy. The trial court ordered the State to refund $880 million, the amount collected under the statewide property tax in tax years 1999 and 2000, as the appropriate remedy for the constitutional violations. The basis for the court’s order was that “[t]he State agreed, by objecting to the request for interpleader of the tax funds, that if the tax was declared unconstitutional or otherwise invalid, they would repay all of the taxes already collected.” While reimbursement is not a remedy we would have recommended, based on representations made by the State, it is understandable why the trial court found that the State had “repeatedly and unequivocally reminded the Court that if the statewide property tax were declared unconstitutional it would be solely the State’s obligation to fully refund, credit or otherwise remedy all taxpayers who had made payments under this tax.”

The plaintiffs initially requested class certification. In objecting to this motion, the State represented that a class action was unnecessary because “the State has adequate funds to repay any of the Tax that is collected if the Tax is declared unconstitutional.” Upon the plaintiffs’ withdrawal of the class certification request, the trial court issued an order stating: “A request for class certification was filed by the plaintiffs, and as a result of the State’s stipulation that if the statute is declared unconstitutional the money will be returned, the request for class certification has been withdrawn.” (Emphasis added.) The State never asked for reconsideration, clarification, or otherwise objected to this order.

Subsequently, seventeen “donor” communities filed a bill to interplead their excess property tax payments in escrow pending the outcome of the Sirrell plaintiffs’ lawsuit. The State objected and at a hearing argued that

[i]f the tax is collected and it’s determined to be unconstitutional, it’s the State who’s responsible to the taxpayers in the State, to refund or to credit or to somehow remedy that situation. . . . The result is that if there are no funds in the education trust fund and the Supreme Court declares this tax unconstitutional and orders the State to refund $18.3 million in specific, and a total of $440 million, then the State will be responsible to do that out of the general fund. That will be the State’s responsibility.

In its order denying the bill of interpleader, the trial court stated, “The State has taken the position that, if the tax is declared unconstitutional or otherwise invalid, they will repay all of the taxes collected, both to the ‘donor’ communities and to the ‘receiver’ communities.” The State neither objected to this order nor sought reconsideration or clarification.

Finally, at trial, the State’s opening statement included the following:

This is really a $440 million dollar issue, because if the Court determines that the statewide property tax is unconstitutional, it’s not just the $24 million dollars that has to be credited, refunded or offset, it’s the $440 million dollars, because that whole tax was collected to fund adequacy even though some portions remained in the communities. It is the whole tax that was collected under the statewide education property tax, and by December 1st it will be two years that the tax is collected, which will be a total of $880 million dollars at this point.

We find it disturbing that the State made explicit representations to the trial court, upon which it and the plaintiffs obviously relied, and now the State contends on appeal that the trial court’s reliance is reversible error because “none of the State’s arguments constitute an agreement or a stipulation to repay any amount” and because “the State does not have statutory authority to agree to repayment of $880 million, or to the repayment of the ‘excess property taxes’ amount.” The State should have considered whether it had such authority before making representations to the trial court. At the very least, the State should have promptly alerted the court, upon the issuance of each of its orders in which it was clear that the court interpreted its statements as an agreement to pay or reimburse the entire statewide property tax, that the State did not mean what it said.

Regardless of whether the State had the authority to make the statements that it did, however, we would agree that it would be inequitable in this case to require the repayment of nearly one billion dollars to taxpayers in this State, money which has been spent on the provision of public education. See Opinion of the Justices, 131 N.H. 644, 650 (1989). In fact, the plaintiffs acknowledge that they “never requested, and are not now requesting, reimbursement of the nearly one billion dollars collected under the statewide property tax. The Plaintiffs recognize that such relief would cripple the State [and that] to require the State to reimburse the total amount of the statewide property tax would constitute an unfair windfall.”

We would remand to the trial court the issue whether any retrospective relief would be appropriate, including whether any of the plaintiffs are entitled to a refund of taxes paid. See Smith v. NH Dep’t of Revenue Admin., 141 N.H. 681, 696-97 (1997). The plaintiffs would have the burden of proving harm and establishing that procedural requirements for relief had been met. See generally ESA ch. 21-J (2000) (setting forth statutory procedure for obtaining tax refund, including statute of limitations); Private Truck Council of America v. State, 128 N.H. 466, 474 (1986) (to recover taxes paid under a common law refund theory plaintiffs must prove that they paid under protest).

ON THE PLAINTIFFS’ MOTION FOR RECONSIDERATION. After the foregoing opinion was issued the plaintiffs moved for reconsideration. 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.