For the Order -- Chief Justice Hughes, Justices Sullivan, Clifford and Schreiber and Judge Conford. Opposed -- Justices Mountain and Pashman. Mountain, J. (dissenting). Pashman, J. dissenting.
On January 30, 1976, a majority of this Court sustained the facial validity of the Public School Education Act of 1975 ("the 1975 Act"), L. 1975, c. 212, N.J.S.A. 18A:7A-1 et seq. Robinson v. Cahill, 69 N.J. 449 (Robinson V). The enactment of this statute on September 29, 1975, was the culmination of several years of litigation and of activity by the other branches of government consequent upon the adjudication by this Court of the unconstitutionality of the provisions of previous statutes governing the financing of public schools. Robinson v. Cahill, 62 N.J. 473, 480 (1973) (Robinson I).
Our determination in Robinson V was reached on the assumption that "complete funding [would] be forthcoming to furnish the necessary means to put [the 1975 Act] into full operation" Robinson V, 69 N.J. at 454, n. 2, absent which funding that statute "could never be considered a constitutional compliance with the 1875 amendment to the New Jersey Constitution -- adjuring the legislative establishment of a system of thorough and efficient education." Id. (emphasis supplied).
We retained jurisdiction and stated that if the Legislature did not provide for such funding by April 6, 1976, we would issue an order to show cause why certain specific or other relief, including injunctive relief, should not be mandated. We accelerated the issuance of the order, and briefs were submitted and argument was held. To date there has been no final legislative action funding the financial aid provisions of the 1975 Act.
The continuation of the existing unconstitutional system of financing the schools into yet another school year cannot be tolerated. It is the Legislature's responsibility to create a constitutional system. As we stated in Robinson I, supra,
62 N.J. at 520, "The judiciary cannot unravel the fiscal skein." The Legislature has not yet met this constitutional obligation. Accordingly, we shall enjoin the existing unconstitutional method of public school financing.*fn1
We therefore order as follows:
On and after July 1, 1976, every public officer, state, county or municipal, is hereby enjoined from expending any funds for the support of any free public school. This injunctive order shall not apply to:
1. Payment of principal, interest and redemption of existing school bonds, anticipation notes and like obligations.
2. The cost of maintenance and security of school properties.
3. The payment of contractual obligations for capital construction, necessary repairs and like expenses necessary for the protection of school properties.
4. Contributions toward teachers' pensions.
5. Payment of existing obligations for Blue Cross, Blue Shield, social security and similar commitments.
6. Payment of all insurance premiums.
Further applications for clarification of this injunctive order may be made to the Court.
This injunction will not become effective if timely legislative action is taken providing for the funding of the 1975 Act for the school year 1976-1977, effective July 1, 1976, or upon any other legislative action effective by that date providing for a system of financing the schools in compliance with the Education Clause of the Constitution.*fn2
MOUNTAIN, J. (dissenting). A majority of the Court have now directed that unless full funding of the Public School Education Act of 1975, or other constitutional compliance, is forthcoming by June 30, 1976, any further expenditure of public funds for school purposes will be enjoined until such compliance eventuates. For the reasons set forth below, I dissent.
Underlying the question of school financing -- with which the series of Robinson opinions has been chiefly concerned -- exists a far more important issue of constitutionalism: to what extent, if at all, should courts affirmatively intrude to
rectify perceived instances of unconstitutional conduct which under our system of government should be corrected by one or other of the political branches of government -- the executive or legislative. This is the issue we face here. This Court decided in Robinson I, 62 N.J. 473 (1973), that the system of financing public education in this state violated Article 8, § 4, para. 1 of the New Jersey Constitution which requires the Legislature to "provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years." The Constitution places the obligation directly upon the Legislature. It is not diffused between or among two or more of the branches of government as are many constitutional obligations; it is imposed squarely upon one of the political branches.
It is the view of a majority of this Court that to this date there has not been legislative compliance with the constitutional mandate. The Court therefore faces the serious dilemma as to whether it should take further action to bring about compliance or stay its hand. Resolving the problem is not easy. This whole question as to the affirmative duty -- if such it be -- of the judiciary to compel compliance by other branches of government with requirements that have been determined by the judiciary to be necessitated by the Constitution, has been described by an eminent authority as "the next great challenge of American constitutionalism." Cox, The Role of the Supreme Court in American Government (1976) 98.
Examined abstractly, powerful arguments can be presented to sustain each of the opposing viewpoints. In support of judicial restraint it may be pointed out that judicial activism, of the kind in which the majority has now engaged, generally results in violating accepted notions as to the ...