On appeal from the decision of the State Board of Education, Docket No. SB24-02.
Before Judges Conley, Braithwaite and Lisa.
The opinion of the court was delivered by: Braithwaite, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2004
This appeal by petitioners, Board of Education of the Northern Burlington County Regional School District ("Regional District") and Township of North Hanover, a constituent school district of the Regional District, challenges the apportionment of seats on the Regional District Board. Petitioners argue that the State Board of Education ("State Board") erred in affirming the decision of the Commissioner of Education ("Commissioner") that the Burlington County Superintendent ("County Superintendent") properly included State prison inmates in the population of inhabitants in deciding the apportionment of seats on the Regional District Board. They also contend that the State Board erred in concluding that the County Superintendent properly utilized the equal proportions method in apportioning the seats on the Regional District Board.
We affirm the decision authorizing the use of the equal proportions method, but reverse the decision authorizing the inclusion of State prison inmates in the population of inhabitants. We, therefore, reverse that part of the decision and remand for further proceedings consistent with this opinion.
The Regional District is comprised of four constituent districts: Chesterfield, Mansfield, North Hanover, and Springfield. There are nine members or seats on the Regional District board. See N.J.S.A. 18A:13-8. Prior to reapportionment of seats in the Regional District, Chesterfield and Mansfield had two seats each; Springfield, one seat; and North Hanover, four seats.
Following the 2000 decennial census, the population in Chesterfield increased by 15.6 percent from 1990 and the population in North Hanover had decreased by 26.5 percent. In actual numbers, the population from the 2000 census was as follows: Chesterfield, 5,995*fn1; Mansfield, 5,090; North Hanover, 7,347; and Springfield, 3,227.
Based on the above figures and applying the equal proportions method, the County Superintendent determined that Chesterfield would gain one seat and North Hanover would lose one seat. The seats allotted to the remaining constituent districts would remain unchanged.
The Regional District and the Township of Mansfield challenged the County Superintendent's decision on February 1, 2002. They each filed a petition with the Commissioner. The Commissioner dismissed both petitions, concluding that the County Superintendent's use of State prison inmates in the inhabitant count, and the use of the equal proportions method were not beyond the County Superintendent's"lawful authority."
The Regional District and Township of Mansfield appealed the Commissioner's decision to the State Board. The Township of North Hanover moved to intervene in the appeal. The motion was granted.
The State Board affirmed the Commissioner's decision in both respects. The State Board agreed with the Commissioner's analysis of the equal proportions issue and affirmed for those reasons. It took a different approach with respect to the inclusion of State prison inmates in the inhabitant population. It concluded that because of a footnote in the case of Franklin Township v. Board of Ed. N. of Hunterdon Reg. High Sch., 74 N.J. 345 (1977) cert. denied, 435 U.S. 950, 98 S.Ct. 1576, 55 L.Ed. 2d 800 (1977), and the Legislature's response to the footnote, the exclusion of State prison inmates from the inhabitant population violated the Equal Protection clause of the United States Constitution.
In footnote two in Franklin, our Supreme Court expressed doubt about the constitutionality of"deducting institutional and military population from the total census population." Id. at 348 n.2. The Legislature, in response to the footnote, amended N.J.S.A. 18A:13-8 so that military and other institutional populations would be included in the inhabitant population for apportioning board seats in regional school districts with more than nine constituent districts. With respect to regional districts with nine or fewer constituent districts, the statute still requires the subtraction of State prison inmates in arriving at the apportionment population.
The State Board recognized that the language of N.J.S.A. 18A:13-8 clearly required that State prison inmates be excluded from the inhabitant population for regional schools with nine or less constituent districts, but concluded that legislative oversight resulted in amending only that portion of the statute that applies to regional school districts with more than nine constituent districts. Because the State Board was unable to draw a distinction between regional school districts with more than nine constituent districts and those with nine or less, it concluded that the clear unequivocal language excluding State prison inmates from inhabitant populations in regional districts with nine or fewer constituent districts had been ...