October 22, 2001
RAYMOND ARTHUR ABBOTT, ET AL., PLAINTIFFS-MOVANTS,
FRED G. BURKE, ETC., ET AL., DEFENDANTS-RESPONDENTS.
The Supreme Court having considered the motion in aid of litigants' rights filed by the Education Law Center (ELC) on May 17, 2001, and having heard oral argument on September 25, 2001;
And the Court having found previously in Abbott v. Burke, 153 N.J. 480 (1998) (Abbott V), and Abbott v. Burke, 163 N.J. 95 (2000) (Abbott VI), that the Department of Education (DOE) has certain responsibilities in respect of the implementation of high quality preschool programs for three- and four-year old children in the Abbott Districts;
And the Education Law Center (ELC) herein having alleged, among other things, that the DOE has not carried out its specific responsibility to review and approve pre-school program and budget proposals in a timely manner;
And the Education Law Center having sought the appointment of a Standing Master to oversee and supervise implementation of Abbott pre-school programs, including timely decision-making and dispute resolution;
And the Court having determined in Abbott V that
[Abbott] . . . disputes shall be considered "controversies" arising under the School Laws. N.J.S.A. 18A:7A-1 to 7F-34. Based on a showing of demonstrated need, schools or school districts may apply to the DOE for authorization to improve or amend existing programs, to adopt additional supplemental programs, to build or to renovate facilities, and to seek the necessary funding. An aggrieved applicant may appeal to the Commissioner from an adverse decision on any such application made to the DOE. If the dispute is not resolved or if the applicant is not satisfied with the disposition, the case may be transferred under the Administrative Procedure Act to the Office of Administrative Law as a contested case. See N.J.S.A. 52:14B-1 to -15; N.J.A.C. 1:1-1.1 to -19.2. After conducting a hearing, the Administrative Law Judge will make a recommendation, which the Commissioner may, in his discretion, accept or reject. Either party may then appeal to the State Board of Education. The Board's determination will constitute a final agency determination that may then be appealed to the Appellate Division and, ultimately, to this Court.
And the Legislature having determined that the Commissioner of Education should be the final decision maker in the resolution of such disputes rather than the State Board of Education, Appropriations Act of Fiscal Year 2000, L. 2000, c. 53;
And the Court in Abbott VI having declined to appoint a Standing Master and having reaffirmed the dispute resolution process set forth in Abbott V, as "consistent with [its] view in Abbott V that education disputes are properly decided in the first instance by those statutorily entrusted with that responsibility," [cite], and, further, having required Final Decisions of the Commissioner challenged in the Office of Administrative Law to be expedited to ensure that final dispositions were issued in time for implementation in the 2000- 2001 school year, Abbott VI, 163 N.J. at 118;
And the Court having determined in this action to deny ELC's request for appointment of a Standing Master in light of the Court's firm commitment in Abbott V and Abbott VI to use of the administrative process established by the Legislature for Executive Branch decision-making;
And the Court having found that during school year 2000-2001 the DOE did not timely complete its review of certain pre-school program and budget proposals;
And the Court having further determined that time frames to be followed through the administrative decision-making and appeal process should be established to ensure that final dispositions are issued in time for the 2002-2003 school year;
And the Court having determined that an Order should issue in advance of the Court's opinion in the matter;
And good cause appearing;
It is ORDERED that submission, review, and appeal of Abbott District pre-school program and budget proposals be carried out pursuant to the following schedule:
1. Submission by November 15, 2001, of final pre-school program and budget proposals by the Abbott Districts including, among other things, use and funding of community providers where applicable;
2. Issuance by January 5, 2002, of initial DOE determination on pre-school program and budget proposals;
3. Notice filed by January 10, 2002, of administrative appeal in a contested case, such notice to be transferred immediately to the Office of Administrative Law for accelerated proceedings;
4. Issuance by February 15, 2002, of the Administrative Law Judge's Opinion and Recommendations, including itemization of the record;
5. Issuance by March 1, 2002, of Final Decision by the Commissioner of Education;
6. Notice of appeal filed by March 5, 2002, in the Superior Court, Appellate Division; and
7. Resolution by March 30, 2002, of any Appellate Division appeal;
and it is further
ORDERED that DOE staff work with the Abbott Districts to ensure that plans submitted on or before November 15, 2001, are complete; and it is further
ORDERED that if a District plan is nonetheless incomplete when submitted, the DOE will accept supplemental documentation and continue to assist the District in an effort to cure any deficiencies; and it is further
ORDERED that all appeals from the initial DOE decision must be referred to the Chief Judge of the Office of Administrative Law (OAL), who either will hear those matters himself or, when necessary, will specially designate certain Administrative Law Judges for that purpose; and it is further
ORDERED that Part A of the Superior Court, Appellate Division, is designated to hear all appeals from Final Decisions of the Commissioner that come within the scope of this Order.
WITNESS, the Honorable Deborah T. Poritz, Chief Justice, at Trenton, this 22nd day of October, 2001.
Stephen W. Townsend Clerk of the Supreme Court
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, and LAVECCHIA, join in the Court's Order. JUSTICES VERNIERO AND ZAZZALI did not participate.
JUSTICE STEIN dissents from the order, although he does not disagree with the timetable for review established by the Court. In his view, the scope and magnitude of the preschool implementation problems and facility deficiencies disclosed by this record clearly require the designation for a limited period of a Judge of the Superior Court as a Special Master to hear and decide promptly appeals from Department of Education program, funding, facilities, and other related decisions and also to monitor and assist the Department of Education and Abbott Districts, in accordance with an appropriate order from this Court, in implementation of all aspects of the high-quality preschool program ordered by this Court.
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