On remand from Supreme Court of New Jersey.
Before Judges Skillman, Coburn and Wells.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 19, 2004
This appeal, which involves the validity of regulations adopted by the Commissioner of Education to govern the determination of additional supplemental State aid to be disbursed to Abbott school districts in 2003-04, is before us for the second time. Appellants' primary argument is that the definition of"maintenance budget" in those regulations conflicts with the definition of that term in an order issued by the Supreme Court on July 23, 2003. Abbott v. Burke, 177 N.J. 596 (2003).
When this appeal was first brought before us, the only context in which the Department of Education (DOE) had applied the regulation's definition of"maintenance budget" was in the determination of the Abbott districts' preliminary maintenance budget figures for the 2003-04 school years. Moreover, twenty appeals from the Commissioner's final decisions regarding those preliminary budget figures were then (and still are) pending before this panel. Most significantly, we concluded that paragraph four of the Court's July 23rd order clearly prescribed the methodology by which the Abbott districts' preliminary maintenance budget figures were to be determined, and that the regulation's definition of"maintenance budget," and the DOE's methodology for determining preliminary maintenance budget figures, could not be reconciled with that paragraph of the order.
Accordingly, by an opinion issued on January 26, 2004,"we conclude[d] that N.J.A.C. 6A:10-3.1(e) and the definition of'maintenance budget' in N.J.A.C. 6A:10-1.2 are invalid as applied to the determination of the Abbott districts' preliminary maintenance budget figures... [and] direct[ed] the DOE to redetermine the Abbott districts' preliminary maintenance budget figures in conformity with paragraph four of the July 23rd order and to issue revised figures to the Abbott districts within ten days of the filing of this opinion." Asbury Park Bd. of Educ. v. N.J. Dept. of Educ., ___ N.J. Super. ___, ___ (App. Div. 2004) (slip op. at 18). In addition, we sustained the validity of N.J.A.C. 6A:10-3.1(c)(1)(i) and (ii) and N.J.A.C. 6A:10-3.1(f), but concluded that there was no need to determine the validity of any other DOE regulation in order to decide the pending budget appeals. Id. at ___ (slip op. at 29). Ten days following issuance of this opinion, on February 5, 2004, the DOE issued revised preliminary maintenance budget figures. On the same day, the DOE also issued final maintenance budget figures for the 2003-04 school year based on the DOE's review of each district's Comprehensive Annual Financial Report (CAFR).
On February 10, 2004, appellants filed an emergent motion for relief in aid of litigants' rights and/or clarification of our January 26, 2004 opinion. In their brief in support of the motion, appellants argued that both the DOE's revised preliminary maintenance budget figures and its final maintenance budget figures conflicted with the Supreme Court's July 23rd order and this court's January 26th opinion.
In its answering brief, the DOE argued that both its revised preliminary and final maintenance figures conformed in all respects with the Court's order and this court's opinion. In addition, the DOE argued that its filing of a notice of petition for certification with the Supreme Court had divested this court of jurisdiction to consider the part of appellants' motion which sought clarification of this court's opinion.
On February 17, 2004, this court issued an order which denied appellants' motion for relief in aid of litigants' rights on the merits. This order also denied appellants' motion for clarification on the ground that the DOE's filing of a notice of petition for certification had divested this court of jurisdiction to modify or supplement the terms of the judgment embodied in its January 26, 2004 opinion.
On February 19, 2004, the Supreme Court temporarily remanded this appeal to us"to consider [the] motion for clarification on the merits on an expedited basis." That same date, we entered an order granting appellants' motion for clarification. Our order indicated that a supplemental opinion would follow and afforded the parties an opportunity to file supplemental briefs with respect to the issues presented by appellants' motion, which were submitted earlier this week.
Appellants' motion for relief in aid of litigants' rights and/or clarification presented two arguments. First, appellants argued that the DOE's revised preliminary maintenance budget figures violated the July 23rd order and this court's opinion because they did not include adjustments for documented increases in non-discretionary expenditures. Second, appellants argued that the DOE's final maintenance budget figures violated the July 23rd order because they were based on the Abbott districts' actual expenditures during the 2002-03 school year, rather than their 2002-03 approved budgets. It is unclear whether appellants' first argument was presented solely in support of their motion for relief in aid of litigants' rights, which this court denied in its February 17, 2004 order, or whether appellants also presented that argument in connection with their motion for clarification. In any event, we are satisfied that any issue concerning the omission of adjustments for documented increases in non-discretionary expenditures from the revised preliminary maintenance figures is now moot, because the final maintenance budget figures, which include those adjustments, supersede the preliminary figures with respect to future payments of supplemental Abbott v. Burke State aid in the 2003-04 school year. Consequently, the only issue we need to decide is the validity of the DOE's definition of"maintenance budget" as applied to the determination of the final maintenance budget figures.
Our original opinion only addressed the validity of the DOE's definition of"maintenance budget" as applied to the determination of preliminary maintenance budget figures. Asbury Park, supra, at ____ (slip op. at 15-19). We concluded that paragraph four of the Court's July 23rd order resolved this issue. This paragraph contains the following directive:
Within 30 days of the issuance of this Order, the DOE shall provide in a Notice to each district preliminary maintenance budget figures for the 2003-2004 school year consisting of the 2002-2003 approved budget and an estimate of the supplemental funding that will be needed to support that currently approved budget. If the DOE deletes an expenditure from a district's 2002-2003 budget related to the district's non-instructional programs and based on the effective and efficient standard, the DOE must include in the written notice to the ...