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Asbury Park Board of Education v. New Jersey Dep't of Education

January 26, 2004


On appeal from Department of Education.

Before Judges Skillman, Coburn and Wells.

The opinion of the court was delivered by: Skillman, P.J.A.D.


Argued January 13, 2004

This appeal involves the validity of regulations adopted by the Commissioner of Education that govern the determination of the amount of additional supplemental State aid to be disbursed to Abbott school districts in 2003-04. Appellants' primary contention is that those regulations conflict in various respects with an order that the Supreme Court issued on July 23, 2003. We conclude that the regulations dealing with the determination of preliminary maintenance budget figures conflict with the Court's order. Consequently, we direct the Department of Education (DOE) to redetermine those figures within ten days. We reject appellants' other challenges to the validity of the regulations.

On March 24, 2003, the DOE filed a motion in the Supreme Court to modify the mandates of Abbott v. Burke, 153 N.J. 480 (1998) (Abbott V), which included a request for approval of the Commissioner's proposal that"the 2003-2004 school year will be a maintenance year in which all effective and efficient K-12 programs provided in the 2002-2003 school year will be continued." The Education Law Center (ELC) opposed the DOE's motion and filed a cross-motion which sought various relief with respect to the directives of Abbott V. A number of Abbott districts (Asbury Park, Elizabeth, Passaic, Pemberton and Trenton) sought to intervene in opposition to the DOE's motion.

In response to the motion, the Supreme Court ordered the DOE and ELC to participate in mediation before Judge Carchman. The Court denied the Abbott districts' motion to intervene but allowed them to participate in the mediation as amicus curiae. The mediation before Judge Carchman resulted in agreement on all issues except for the DOE's application to treat 2003-04 as a maintenance year in which the relaxation of remedies for the 2002-03 school year that the Court granted in Abbott v. Burke, 172 N.J. 294, 297-98 (2002) (Abbott IX) would be extended for an additional year.

On May 20, 2003, the Court entered an order in accordance with the mediation agreement which required the DOE to provide the Abbott districts with budget decisions by May 30, 2003, and established a schedule for the disposition of any appeals from those decisions. In conformity with this order, the DOE issued decisions on May 30, 2003, regarding the Abbott districts' budgets. Twenty-two districts appealed these decisions, and the Commissioner referred the matters to the Office of Administrative Law (OAL) as contested cases.

On June 24, 2003, the Supreme Court issued an order which approved the mediation agreement between the DOE and ELC and set July 10, 2003, as the date for oral argument on the unresolved issue of whether the DOE should be granted an additional one- year extension of the relaxation of remedies the Court had previously granted for the 2002-03 school year. Abbott v. Burke, 177 N.J. 578 (2003).

After hearing oral argument, the Court entered an order on July 23, 2003, which granted the DOE's application to extend the relaxation of remedies granted in Abbott IX to the 2003-04 school year. Abbott v. Burke, 177 N.J. 596 (2003). Paragraph one of this order states:

The DOE shall have the authority to treat the 2003-2004 school fiscal year as a maintenance year for purposes of calculating Additional Abbott Burke State Aid for the Abbott districts. During 2003-2004, K-12 programs provided for in the 2002-2003 school year will be continued, subject to conditions set forth in this Order. [Id. at 598.]

Paragraphs two through seven of the order contain various provisions relating to implementation of the authorization for the DOE to treat 2003-04 as a maintenance year, which are discussed in detail later in this opinion. The order also required the DOE to issue its preliminary maintenance budget figures within thirty days and required the OAL to issue initial decisions on any appeals from those figures within an additional thirty day period. Id. at 598-99. Under the Court's May 20, 2003 order, the Commissioner was required to issue final decisions on those appeals within twenty-five days of the OAL decisions. This order also provided that any appeal to this court from a final decision of the Commissioner in a preliminary maintenance budget appeal had to be filed within five days of his decision and directed this court to expedite consideration of any such appeal.

On August 22, 2003, the Commissioner adopted emergency regulations, which were effective immediately, amending previously adopted regulations that govern the DOE's determination of Abbott district additional supplemental funding for the 2003-04 school year. N.J.A.C. 6A:10-1.1 to -4.7.

On August 27, 2003, the DOE issued preliminary maintenance budget figures to the Abbott districts. Twenty-two Abbott districts challenged these budget determinations within the framework of their previously filed budget appeals which the Commissioner had transmitted to the OAL. The Abbott districts attempted in their appeals before the OAL to challenge the validity of the part of the emergency regulations which define"maintenance budget."

On October 6, 2003, five Abbott districts filed this appeal challenging the validity of parts of the emergency regulations the Commissioner adopted on August 22, 2003.

In September and early October, the OAL issued initial decisions in the Abbott budget appeals, which were prepared by twenty different Administrative Law Judges (ALJs). The ALJs' initial decisions all concluded that this court had exclusive jurisdiction over appellants' claim that the definition of"maintenance budget" in the emergency regulations adopted by the Commissioner is invalid. The decisions then ruled upon appellants' other arguments relating to the preliminary maintenance budget figures.

On October 20 and 28, the Commissioner issued final decisions in the Abbott districts' appeals from the preliminary maintenance budget figures. These final decisions adopted the part of the ALJ's initial decisions which concluded that this court has exclusive jurisdiction to review the validity of the DOE regulations including the definition of"maintenance budget."

Twenty-one districts filed notices of appeal to this court from those decisions, one of which was subsequently withdrawn. On October 31, 2003, this court issued a case management order that consolidated the twenty budget appeals with the present appeal challenging the validity of the DOE regulations for case management purposes only and established a schedule for briefing and oral argument.

Preliminarily, we question whether appellants followed the proper procedural course in challenging the validity of the DOE's emergency regulations relating to the determination of preliminary maintenance budgets. Appellants claim that the regulations are invalid because they conflict with the Supreme Court's July 23, 2003 order. A claim that a party, here the DOE, is acting in violation of court order ordinarily should be brought before the court that issued that order, here the Supreme Court, by a motion for relief in aid of litigants' rights under Rule 1:10-3. Moreover, if there is a question concerning the meaning of an order, a party may file a motion for clarification with the court that issued the order. Although appellants were only allowed to participate as amicus curiae in the proceedings resulting in entry of the July 23rd order, the Court no doubt assumed that appellants' interests would be adequately protected by that role. If appellants believed that their lack of party status deprived them of the right to seek enforcement of the Court's order, they could have renewed their motion to intervene at the same time they sought relief under Rule 1:10-3.

Alternatively, if appellants did not believe they could obtain relief under Rule 1:10-3, they could have filed a notice of appeal with this court challenging the validity of the DOE regulations immediately after they were adopted. Appellants also could have moved for an emergent stay of application of those regulations in the DOE's determination of the preliminary budget maintenance figures. See R. 2:9-7. In addition, appellants could have moved for direct certification of the appeal by the Supreme Court under Rule 2:12-1 or Rule 2:12-2 on the theory that the Court is best equipped to pass on a question as to the interpretation or enforcement of one of its own orders.

We also note that appellants' failure to seek prompt judicial relief has resulted in an unfortunate delay in the determination of the validity of the DOE regulations. Those regulations were adopted and became effective on August 22, 2003. The DOE issued preliminary budget estimates based on those regulations on August 27, 2003. At that point, appellants could have moved before the Court not only for a summary declaration that the DOE regulations were invalid because they conflicted with the Court's July 23rd order but also a summary reversal of the DOE preliminary maintenance budget figures on the ground that they were based on invalid regulations. If such a motion had been successful, the DOE would have been required to issue new preliminary maintenance budget figures and the scope of the budget appeals before the OAL would have been limited to whatever issues those new figures may have generated.

Instead of promptly challenging the DOE regulations, appellants elected to pursue their budget appeals before the OAL, presenting their argument that the definition of"maintenance budget" in the DOE regulation conflicts with the Court's July 23rd order as one of the issues in those proceedings. The ALJs and the Commissioner properly held that this challenge to the validity of an administrative regulation is within the exclusive ...

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